2009526 (Refugee)

2009526 (Refugee) [2023] AATA 2563 (29 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2009526
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Katherine Harvey
DATE:29 June 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 29 June 2023 at 3:16pm

CATCHWORDS
REFUGEE – protection Visa– Fiji – burglary report to the Fiji Police Force was ignored – subject to accentuated prejudice – a member of the Fiji Armed Forces – significant economic hardship – burglary was opportunistic – separation from his father’s grave does not constitute significant harm –no well-founded fear of persecution – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5,36, 65, 411, 499
Migration Regulations 1994, 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 14 May 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant claims to be a citizen of the Republic of Fiji and is [age] years old. He most recently arrived in Australia on [date] August 2019, travelling on a Fijian passport as the holder of a visitor visa.
On 18 October 2019, the applicant applied for a protection visa.
On 14 May 2020, a delegate of the Minister refused to grant the visa.
On 8 June 2020, the applicant applied for a review of that decision. He provided the Tribunal with a copy of the delegate’s decision. The Tribunal is satisfied that the decision is reviewable under s 411(1)(c) of the Act.
On 31 March 2023, the Tribunal wrote to the applicant advising that it had considered all of the material before it relating to the application but was unable to make a favourable decision on that information alone.
The applicant was scheduled to appear before the Tribunal on 24 April 2023. Due to circumstances beyond its control, the Tribunal rescheduled the hearing to a date that the applicant and his support people were available.
The applicant appeared before the Tribunal on 11 May 2023 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by Microsoft Teams video. The Tribunal determined that it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The Tribunal is satisfied that the applicant was given a fair opportunity for evidence to be given and arguments presented on his behalf. Where relevant, the applicant’s evidence to the Tribunal is referred to below in the Tribunal’s analysis.
The applicant was supported at the hearing by his sister [Ms A] and her husband [Mr B], who appeared by video and attended the whole hearing. Before the hearing, the Tribunal officer confirmed that they were participating as support people. At the beginning of the hearing, the Tribunal confirmed with each of them that they were attending as support people and did not wish to give evidence. At the end of the hearing, the applicant asked if they could give evidence on his behalf. The Tribunal explained that this was unorthodox as they had sat through the whole hearing as support people and had heard all of the applicant’s evidence. Nevertheless, the Tribunal agreed to hear their evidence and [Ms A] and [Mr B] were sworn in and provided evidence, which is referred to below in the Tribunal’s analysis.
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.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION
The issue in this case is whether the applicant has a well-founded fear of persecution for a refugee nexus reason, or if he is owed complementary protection, or if he is a member of the same family unit as a non-citizen who is a refugee or is owed complementary protection.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant’s personal details were set out in his application for protection. He is[age] years old and was born in [Fiji]. At the time he made his application, he stated that he was married with [children]. He had studied a [degree] in Queensland and worked as an [occupation] in Fiji.
He provided details of his wife and children in Fiji and his Australian-citizen sister, who was a support person at the hearing.
Country of reference
The applicant claims that he was born in [Fiji] and is a citizen of Fiji. He provided a copy of the biodata page from his Fijian passport.
The Tribunal is satisfied that the applicant is a citizen of Fiji and that Fiji is the receiving country for the purpose of s 36(2)(aa) of the Act.
Summary of claims
The applicant’s claims are set out in the application for protection.
The applicant claimed that he left Fiji to visit his parents, especially after his father was diagnosed with [a medical condition]. He also wanted to discuss how to settle his father’s hospital bills, to look for work in Australia to pay the bills, and to look for opportunities for his family to live in Australia.
He claimed that he had experienced harm in Fiji. He claimed he experienced psychological harm when his father was admitted to hospital as a private patient and the family was responsible for his hospital bills.
He claimed he experienced financial harm with the weakening Fijian currency and sending money to Australia and when two offers to buy one of his properties fell through.
He claimed in 2015, thieves broke into his house and stole $10,000 worth of contents and he was hurt to see his military belongings, including his medals, lying everywhere.
He claimed he experienced self-neglect when, despite reporting the break-in to police, no police report was provided.
He claimed that there is no freedom of the press or free speech in Fiji and they are worried about losing their job.
He claimed the majority of people in Fiji hate the Fiji Military Forces and any military personnel, whether they took part in the military coup or not.
He claimed that when he returned from a one-year military tour he began to feel hatred, feeling of ‘negligent’ at work and even at church. He claimed they became a target for people as proved by the burglary.
He claimed he did not seek help as the harms involved the Fiji Government and there is a culture of silence as people fear what could happen if they make comments about the government.
He claimed they reported the burglary the next day and followed up after a few weeks and saw the commanding officer, but nothing was done and they gave up.
He claimed that it would make no sense moving to another part of Fiji as you would still be facing the same harms that are government related.
He claimed that returning home will not assist settling his father’s hospital bill.
He claimed that Fiji is experiencing a financial crisis with the price of basic food items increasing without an increase in wages and salaries.
He claimed hatred against military personnel is getting worse.
He claimed that he and his family will not be safe in Fiji.
He claimed that it will take years for the Fiji economy to stabilise.
He claimed that victims of crime call police for help and the police fail to respond due to the culture of silence and selective hearing.
The applicant provided the following supporting evidence:
Relating to employment, skills and training
·   the applicant’s [University] certificate of attainment [9] 11 March 2016
·   an undated letter of support from Leading Pastor [Mr B] of [a church]
·   the applicant’s [University] [qualification], academic transcript and letter dated 1 August 2003 advising he had completed the requirements for the award of the degree
·   the applicant’s [professional] certificate of completion for [a course] on 18 May 2006
·   the applicant’s [professional] certificate of completion for [a course] on 3–7 April 2006
·   the applicant’s [professional] certificate of completion for [a course] 5–9 March 2007
·   the applicant’s [professional] certificate of completion for [a camp] 28 February–2 March 2007
·   the applicant’s [professional] certificate of completion for [a course] in Melbourne 25–29 September 2006
·   the applicant’s [certificate] of achievement [24]–28 October 2005
·   a letter dated 7 February 2019 from [Mr C], [Company 1] confirming the applicant’s employment since January 2009
·   a letter dated 9 February 2016 from [Mr D], [Company 1] about the applicant’s employment, character and skills
·   a letter dated 20 June 2016 from [Mr E], [Company 1] about the applicant’s employment, character and skills
·   the applicant’s performance appraisal dated 4 June 2015
·   a letter from Major [F] of the Fiji Military Forces (FMF) about the applicant joining the FMF on [date] April 2004 and his character
·   a letter from Rev [G] of [Company 2] dated 10 July 2003 about the applicant’s employment since October 2000
·   the applicant’s curriculum vitae
·   the applicant’s skills assessment [dated] 16 September 2019
·   a letter from [a named person], [a company] dated 27 August 2019 confirming the applicant’s employment from 2005–2009, and
Relating to the applicant’s identity
·   extracts of the applicant’s current and expired Fijian passport
·   the applicant’s international driving permit
·   the applicant’s Northern Territory and Fijian driver’s licences and two copies of his Republic of Fiji voter identification card
Relating to his father’s health condition
·   [Clinic 1] tax invoices for the applicant’s father
·   a letter from [a named doctor], [Clinic 1] dated 14 March 2019 advising that the applicant’s father is a patient and undergoing life saving therapy and he is required to stay with supportive family in Australia to undergo this treatment
Relating to burglary
·   an article by Kreetika Kumar. ‘Break-in victims claim they’re being denied justice’, 30 July 2019
·   an article by Akosita Talei, ‘Theft and aggravated burglary top last month’s criminal offence’, 2 April 2019
Relating to the applicant’s family
·   birth certificates and passport biodata pages for the applicant’s children and his wife
·   the applicant’s marriage certificate.
Relating to Fiji’s economy
·   Hon Sitiveni Rabuka, ‘Fiji Economy in Crisis’, 9 October 2019
·   Hon Lenora Qereqeretabua 2019–20 budget reply speech, 19 June 2019
·   an article ‘Fiji opposition warns of economic collapse, 6 June 2019
·   an article ‘Govt debt drove Fiji budget contraction, economist’, 12 June 2019
·   a book chapter: Joeli Veitayaki, ‘Breaking Fiji’s coup culture through effective rural development’, Chapter 14 of Understanding Oceania: Celebrating the University of the South Pacific and its collaboration with The Australian National University, 2019, and
·   an article ‘What are the facts on poverty’ dated 22 June 2019
Also on the Department file was:
· a December 2019 report from the Truth for Fiji website, and
· an article from Pacific Fiji, ‘Call for summit to rescue Fiji economy’ dated 15 October 2019.
With his application for review, the applicant provided:
·   A two-page statement dated 8 June 2020:
oreiterating his claim that his burglary report to the Fiji Police Force was ignored because of a partisan grievance to a previous member of the UN Peacekeeping forces
oclaiming there is ongoing intolerance in respect to other institutions available to Fijians and that he has a well-founded fear that he will be subject to accentuated prejudice because of his overseas travel and work in the Fiji military that will be exacerbated by COVID-19 and Cyclone Harold hitting the community on 9 April 2020, and
oreiterating his claim that he needs to stay in Darwin to help pay his father’s hospital bills and providing a copy of an invoice.
·   a letter dated 20 May 2020 from [a] Chairman, [an organisation] about the applicant’s character and skills
·   a letter dated 11 December 2019 from [a named doctor] of [Clinic 1] about the applicant’s father’s treatment costing around $100,000 per annum and that he is not eligible for Medicare, and
·   the applicant’s skills assessment [dated] 16 September 2019.
On 3 July 2020, the applicant submitted:
·   further comments in response to the delegate’s decision:
ohe believes he was specifically targeted in the burglary because his house and work car had not been burgled previously, they did not take the expensive coco, witness statements were not considered, another soldier had their washing machine stolen a few days later and not items were recovered
ohe became persona non grata with the local police force
obefore his deployment, his promotion had been denied three times even through he met the criteria
oin 2013, his overseas training was cancelled but his colleague got to go
ohe was never promoted during his 9 years of service, unlike in his previous role.
·   a letter dated 8 August 2014 from [Mr C], [Company 1] endorsing the applicant’s request for military leave without pay, and
·   copies of correspondence previously provided from [Mr C], [Mr D] and [Mr E] of the [Company 1], Major [F] of the Fiji Military Forces, Rev [G] of [Company 2], and the applicant’s performance appraisal dated 4 June 2015.
On 14 July 2020, the applicant submitted an article from Fiji News ‘NGO groups say resources to meet the growing needs of people insufficient’ dated 25 June 2020 in support of his claim that he will be subject to accentuated prejudice as the devastation from cyclone Harold and COVID-19 have hit Fiji.
On 9 November 2020, the applicant submitted:
·   an update on his father’s health status and a copy of his father’s hospital statement
·   an update on his employment, [payslips] and his National Police Certificate, and
·   an update on his accommodation and a Residential Tenancy Agreement.
On 12 January 2021, the applicant provided:
·   an update on his father’s health status and outstanding bill
·   an update on his employment and training and advised that his brother was no longer able to send money to Australia, leading the family to make a new arrangement with the hospital concerning the payment
·   detail from his father’s hospital invoice
·   a letter of support dated 8 January 2021 from [a] venue manager [a business]
On 31 January 2022, the applicant provided:
·   an update of his employment with [Company 3], including employment verification, pay slips and a congratulatory email
·   a claim that he faced dreadful treatment at work once they learned that he was a member of the Fiji Armed Forces as his contract was not renewed, he was denied promotion and denied overseas training and had constant pay in terms of his pay band
·   a claim that he got all the blame for the Bainimarama coup and people said it right to his face
·   a claim that he suffered degrading treatment as a thief stole and ransacked his military belongings
·   an update of his father’s hospital bill
·   a Fiji Times article dated 23 January 2022 ‘Walk the talk’ about Fijians with heart conditions having to contend with critical equipment at the Colonial War Memorial Hospital not working
·   a Fiji Times article dated 22 January 2022 ‘Nurses resigning’ about nurses resigning because of stress, fatigue and lack of compensation, and
·   a joint media release dated 14 December 2021 from the Australian and Fiji Governments ‘Fiji’s economic recovery to benefit from additional support.
On 7 July 2022, the applicant provided:
·   an update about his father, who died on [date] May 2022 and is buried at [a] Cemetery in Darwin and details of his father’s grave site
·   an update about five courses he has completed towards his goal of being a [occupation], and
·   that he has been offered a full-time, fixed-term [position] at [Company 3].
On 15 February 2023, the applicant provided:
·   an update on:
ohis personal progress in employment and training and that he has undertaken to working full-time for another three years for [Company 3]
ohis community services in Darwin
oan update on the balance of his father’s [medical] bill
ohis hopes that he will see his wife and children in person one day and that he would like them to avail themselves of the opportunities in the Northern Territory, and
othat, in his family culture every year, usually before Christmas, all family members gather to visit their ancestors’ graveyard, they clean it if necessary and then have a big feast to commemorate the ancestors. He would like to remain in Darwin to celebrate and remember his father and his children’s grandfather now and then.
·   a Competency and Compliance Solutions statement of attainment towards a [qualification] dated 32 November 2022
·   a letter from [a named person], [a named company] dated 14 February 2023 confirming the applicant’s employment at [Company 3]
·   [a qualification] parchment and transcript dated 22 November 2022, and
·    a Progressive Diagnostic statement of attainment and record of results in ‘collect specimens for drugs of abuse testing’ dated 6 January 2023.

On 1 April 2023, the applicant provided:
·   an update:
oreiterating his earlier claims about his work, the burglary, the lack of action by the police
oon his father’s medical bill
oon his employment, and
oclaiming that people in Fiji were unhappy with the previous government because they realised it was a military dictatorship and any member of the Fiji Military Forces who works for an outside organisation is accused of being an agent of the previous government for 16 years, which is why people’s view of him changed on his return from military service
·   a character reference dated 15 March 2023 from [a] Team Leader for [a company], and
·   a character reference dated 29 March 2023 from [a named person][Company 3].
On 16 April 2023, the applicant provided:
·   a hearing submission from the applicant dated 13 April 2023:
oabout the break-in and their treatment by the Fiji Police Force
othat he was facing significant economic hardship that threatens his ability to survive, and he mapped his progress on a 10-point scale from 2004 to 2019, when he claimed he hit zero and he could not advance any further and if he was still in Fiji it would have been minus 10 and continued with ‘negative’ putting him into severe distress or even death
ohe claimed that as a result of the economic hardship, his sister and brother-in-law decided to move him to Australia as the only solution in overcoming these significant harms
ohe claimed that returning to Fiji would be extremely harmful for him due to:
·   being a victim of unaccepted behaviours while the previous military government was in power because he was a member of the Fiji Army while working for a private company. He claimed that things would get worse for him as a result of the election loss. He would be in a more disadvantageous position and more vulnerable to unethical behaviour against him and in a less favourable position when seeking employment and government assistance if required
·   unemployment has increased and Fiji’s high debt has put the country in tough times ahead, which will cause him financial harm
·   he cannot pay the outstanding hospital bills without employment in Australia because he would be working in Fiji at a lower pay rate and $15,800 remains of the bill
·   three years of being separated from his family is not easy and he hopes that one day they will be able to take full advantage of the opportunities in the Northern Territory. His wife has recently completed her [Certification] and has extensive experience over the years and would be able to access the vast employment opportunities in the Territory
ohe is grateful for the opportunity to study and work in Australia and further his education. It would be more stressful if he could not work.
ohe sees similarities between him and Belinda Checkley and claimed that he has no life back in Fiji and is a hardworking, law abiding and productive member of Australia society.
·   a letter dated 11 April 2023 from [name], Fiji Police Force, certifying that on 3 January 2016 the applicant lodged a report that his house was broken into, listing the items stolen
·   an undated letter from [a] JP, about the applicant’s wife’s character, experience and training
·   a [university] certificate of attainment and transcript for a [course] completed by the applicant’s wife from 27 February to 10 March 2023
·   a [College] statement of attainment for the applicant’s wife for provide first aid completed on 14 March 2023.
·   a letter dated 15 April 2023 from the applicant’s wife about the applicant being ‘stressed out’ in 2019 and suffering from severe headache, body pains, asthenia and blood coming out of his ears. Despite seeking treatment at four hospitals there was no improvement until the applicant went to Darwin where, after a few months, his health drastically improved and he decided to stay. She said that she sought his medical records from the four hospitals but only one record was located at [a] Hospital
·   a letter dated 13 April 2023 from [a doctor], [Health Centre 1] stating that the applicant was seen on 19 February 2019 for headache and body pains. [He] was treated with paracetamol for his above presentation
·   an article from Daily Mail Australia dated 11 April 2023, ‘Breakthrough for British woman who faced being deported in Australia despite living Down Under for 11 years as Immigration Minister makes dramatic intervention, and
·   an article from Felix Chaudhary in The Fiji Times dated 5 April 2023 ‘PM: Tough times ahead – ‘Coalition government has achieved much.
Assessment of claims and evidence
At the hearing, the applicant said that he stood by his claims and he did not want to change any of his claims.
The applicant was asked if he thought that he would experience persecution because of his race, religion, nationality, membership of a particular social group or political opinion. He responded, ‘no mam.’
The conditions for complementary protection were discussed, including the exhaustive definition of significant harm. The applicant was asked if he thought he would experience arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. He responded, ‘no Senior Member.’
Past harm - burglary
The applicant claimed that he had experienced harm in Fiji when a thief ransacked his home and took everything out and stole the expensive stuff on 1 January 2016. He claimed that his uniform and medals were ransacked, that he had to pick his medals up from the toilet floor and his wife’s undergarments were scattered. He claimed that he reported the burglary to the police and people gave witness statements, but the police did not do anything. He said the main reason he needed a statement was because the hire purchase company required a police report for him not to have to pay for the stolen [laptop].
He claimed that the burglary only happened after he returned from [Country 1], when people knew he was part of the military. When asked why he thought the burglary was associated with him being in the military, he explained that they did not steal the expensive material his wife had [purchased]. Also, since 2012, even though he had had valuable work items like laptops and new computers at his home and in the car and he had not locked the door, nothing had been burgled until he returned from [Country 1]. Further, a few days later, another soldier’s washing machine was stolen when his wife left it unattended.
At the hearing, the applicant explained that his wife, [children] and extended family members live in his residential freehold home. He said that his house had not been burgled since 2016 and that nothing else had happened to his family.
The Tribunal accepts that the applicant’s home was burgled in January 2016, that valuable items were stolen and that his miliary uniform and medals and his wife’s undergarments were scattered about. The Tribunal does not accept that scattering the applicant’s military uniform and medals or another soldier’s washing machine being stolen is evidence that the burglary was linked to his membership of the Republic of Fiji Military Force (RFMF) or his service in [Country 1]. There is no other evidence before the Tribunal supporting the applicant’s claim that the burglary was linked to his RFMF membership or service in [Country 1]. Based on the information before it, the Tribunal finds that the burglary was opportunistic. The Tribunal finds the claims that the applicant was targeted because he was a member of the RFMF are speculative and baseless. The Tribunal does not accept that the applicant’s home was targeted because someone learned he was a member of the RFMF.
In his application, the applicant claimed that he became persona non grata with the local police force, he claimed that his reported burglary was ignored because of a partisan grievance, he provided articles from 2019 about burglaries and he claimed that the police failed to respond to victims of crime because of a culture of silence and selective hearing. At the hearing, the country information about the Fiji Police Force (FPF) was discussed, including that:
Corruption in the FPF is reported, but DFAT understands that it is not widespread. There are some allegations of corruption and DFAT is aware of pockets of corruption that have later been exposed and investigated. Complaints about the FPF are made to the Human Rights and Anti-Discrimination Commission…
[1] Department of Foreign Affairs and Trade DFAT Country Information Report – Fiji 20 May 2022 (‘DFAT’) 22–23.
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.[1]
The applicant was asked if he would like to comment or respond to the country information about the FPF and he replied, ‘no mam.’ He said he thought he had made it clear that he had presented himself to the police station three times, and the third time he had gone to the commanding officer, and nothing had happened. The applicant let the matter drop until a few weeks before the hearing, when he had help from his family within the police force that led to the production of the police report that was submitted to the Tribunal.
The applicant did not provide evidence to support his claim that he became persona non grata with the local police or that he was ignored because of a partisan grievance; in his evidence at the hearing he said that he had let the matter drop after asking three times. The Tribunal accepts that the applicant asked for a police report three times in 2016 before letting the matter drop and that the report was not forthcoming until 2023. Noting the country information from 2022, the Tribunal places greater weight on the country information about the FPF’s current capacity to protect individuals and its efficacy.
Past harm - employment
The applicant claimed that he had experienced disadvantage in his nine-year role with the [Company 1] ([COMPANY 1]) because of his military service. He claimed that in his previous role he had found it easy to improve but, after the military takeover when he was working for the [COMPANY 1], he was just suffering. He claimed that he applied for promotion three times but was treated unfairly and not promoted. He said on one occasion he was the only person short-listed and they did not give him the promotion. When asked how he knew he was shortlisted, the applicant said they had emailed him. At the hearing, the applicant claimed that he did not have that email anymore.
He also gave the example of training that he was meant to go to in [Country 2] in 2014 or 2015. He said that he had done the medical check-up and renewed his passport and then his trip was cancelled at the last minute, but his colleague still got to go. He said that he asked the general manager for the justification of why he did not go but there was no justification given.
In the information the applicant provided to the Tribunal were three letters from the management of the [COMPANY 1] that spoke positively of the applicant’s contribution to the organisation and his character. He also provided the correspondence from the [COMPANY 1] approving his military leave request that stated ‘[w]e wish you well in your peacekeeping assignment and may the good Lord keep you safe’. The applicant did not provide any independent evidence to support his claims that he faced dreadful treatment at work, that his contract was not renewed, that he got all of the blame for the Bainimarama coup, and that he was treated adversely because he was a member of the RFMF or because of his military service.
Based on the information before it, the Tribunal accepts that the applicant was not promoted in his role with the [COMPANY 1] and the Tribunal accepts that the applicant did not attend the planned training in [Country 2]. However, the Tribunal also accepts that the management of [COMPANY 1] valued the applicant as an employee. The Tribunal does not accept his claim that he was not promoted or sent to the overseas training because he was a member of the RFMF, or that he faced dreadful treatment at work, or that his contract was not renewed, or that he was blamed for the coup.
Employment, military service and financial disadvantage
In his application, the applicant claimed that the majority of Fijians hate the RFMF and any military personnel, whether they took part in the military coup or not. He claimed that after returning from his military tour, he began to feel hatred and was a target, as evidenced by the burglary (discussed above). He claimed that the hatred against military personnel is getting worse. After the change of government in 2022, the applicant claimed that as a member of the RFMF he would be accused of being an agent of the previous government. He claimed that he would be in a more disadvantaged, less-favourable position and vulnerable to unethical behaviour if he returned to Fiji.
At the hearing, when asked what he thought would happen if he returned to Fiji, the applicant said he would find it really hard to find employment and he thought he could not afford to go without employment as he needed to look after his family. He said that he would have to go through the process of looking for vacancies and applying for jobs. He said that Fiji is a small country and there are a lot of civilians who had family members victimised during the coups. He said that these people are now working doing recruitment in civilian organisations and he would be disadvantaged because of his military background if he was trying to seek employment in a civilian organisation. He claimed that people still hated the military.
At the hearing, the country information about the RFMF was discussed.
The Republic of Fiji Military Forces (RFMF) play an influential role in Fijian society. They have played a central role in Fiji’s recent history and Prime Minister Bainimarama was a RFMF Commander at the time of the 2006 coup.
The RFMF have a visible presence. Media reporting on RFMF activities is common and having served in the military or having a family member who did can be a source of pride for many Fijians. The military often plays a role in disaster relief efforts. During the COVID-19 crisis the military was active in enforcing quarantine regulations before the police took on that role. Fijian police are unarmed and, in cases where weapons are required, the military may assist police.
Although the military is an active and visible presence in Fiji they are unlikely to hinder the day-to-day activities of most Fijians. The various coups d’état (see Recent history) are in the living memory of many Fijians and this contributes to fear and suspicion of the army in some quarters, but DFAT assesses that these fears are not factors in the day-to-day lives of most Fijians. Conversely, many Fijians hold the RFMF in high esteem because of their disaster relief efforts and strong traditions of service within families, for example. There is no conscription in Fiji: people join the military voluntarily.[2]
[2] Ibid 22.
The applicant was asked if he would like to comment or respond to the country information about the RFMF and he replied, ‘no mam, all correct.’
The applicant said that he would find it more difficult to get a job than someone else in Fiji because people whose families had been harmed in the coups would hold his military service against him and he would be targeted. As discussed at the hearing, the applicant’s military service was a year of peacekeeping in [Country 1] and he had not participated in the coups. However, given his claim that people whose family members had suffered during the coups would be discriminatory during the recruitment process, the country information about people involved in the most recent coup d’état was discussed at the hearing.
People involved in the 2006 coup are also unlikely to experience official or societal discrimination merely for their involvement. Any person involved in the coup who held a political office or was a member of the public service is immune from prosecution as set out in the Constitution. DFAT understands from in-country sources that the 2006 coup may be a sensitive topic, but is not aware of a related pattern of violence or discrimination.[3]
[3] Ibid 16.
The applicant was asked if he would like to comment or respond to the country information about the people involved in the coup and he replied, ‘no mam, no further comments.’
The Tribunal places greater weight on the country information about people’s perceptions of the RFMF and that DFAT is not aware of a pattern of violence or discrimination related to people involved in the 2006 coup. Based on the information before it, the Tribunal does not accept that the applicant will be in a disadvantaged position, that he will be victimised or that he will experience discrimination in seeking employment in Fiji because he was a member of the RFMF. Based on the information before it, the Tribunal is not satisfied that there is a real chance or a real risk that the applicant will experience serious harm or suffer significant harm if he returns to Fiji now or in the foreseeable future because he was a member of the RFMF.
In his application, the applicant claimed that he had experienced financial harm because of the weakening of the Fijian currency and that Fiji was experiencing a financial crisis with basic food items increasing in cost without an increase in wages and salaries. He claimed that it would take years for the Fiji economy to stabilise and he provided country information from 2019 to support his claims. The applicant also submitted a media release from 2021 about Australian assistance to Fiji. In his pre-hearing submission letter, dated 13 April 2023, the applicant claimed that unemployment has increased in the last few years and ‘Fiji’s high debt has put the country in tough times ahead’, as confirmed by the Prime Minister and the IMF. He also provided articles about the Fiji economy. As discussed at the hearing, a recent International Monetary Fund (IMF) team visited Fiji in March 2023 and reported that:
Fiji is experiencing a strong economic recovery from the pandemic. Real GDP growth rebounded by an estimated 16.0 percent in 2022 driven by the strong revival in tourist inflows.[4]
[4] IMF Press Release IMF staff completes 2023 Article IV Mission to Fiji 21 March 2023.
The applicant responded that, in his personal view, until he sends money to Fiji and one Australian dollar is worth one Fijian dollar, Fiji’s economy is not strong. He said that to send money from Fiji to Australia is hard because the exchange rate is still down. He said that in the past, when the economy was high, the Fiji and New Zealand dollars were worth the same amount. The Tribunal discussed that exchange rates are a reflection of the strength of both economies, not just one economy. He said that the whole point is that Fiji is still in economic recovery. The Tribunal notes the comments from the Fijian Prime Minister and the applicant but gives more weight to the information from the IMF about the Fijian economy. The Tribunal finds that there is no real chance and no real risk that the applicant will experience serious harm or suffer significant harm if he returns to Fiji now or in the foreseeable future because of the Fijian economy.
The Tribunal notes the evidence from the applicant about his employment, skills and training detailed at [41]. As discussed at the hearing, the applicant is highly qualified and highly trained and he has extensive work experience in Fiji and Australia. The Tribunal accepts that the applicant can earn more money in Australia than in Fiji, but the Tribunal does not accept that the applicant would be unable to obtain employment on his return to Fiji. Based on the applicant’s qualifications and training, and his extensive work experience in Fiji and Australia, the Tribunal finds that the applicant would not be denied employment now or in the foreseeable future and he would be able to subsist in Fiji.
Health

In his pre-hearing submission letter, dated 13 April 2023, the applicant claimed that everything in his life in Fiji improved significantly after he completed his [ degree] in Australia, including his career, promotion, personal development, income from salary and possessions. Then, in 2006, he began to experience significant economic hardship and conditions deteriorated to the point that further progress was not possible because of the military coup and his membership of the Fiji Army becoming public knowledge. He was in a disadvantageous position. The applicant plotted his progression and the ‘foreseeable consequences’ of his disadvantage on a graph with a 10-point scale to demonstrate how his experiences had taken him to ‘zero’. He claimed ‘[i]t would have been minus 10 if I were still in Fiji, and I would have continued with negative, and this would put me into severe distress or even death.’ He claimed that in the early part of 2019, his health condition deteriorated to the point when he though it was the end of his life and blood and pus came out of his ear.
As discussed at the hearing, the applicant’s calculations have no scientific or qualitative basis and they do not translate to any broadly accepted measure. The applicant said that he just wanted to prove what happened to him before and after the coup. The Tribunal pointed out that the applicant had cherry picked what he plotted on the graph and had not included significant milestones that would have affected his wellbeing, such as the birth of each of his [children]. The Tribunal finds that the applicant’s calculations and the graph have no scientific or qualitative basis and the Tribunal gives no weight to the calculations or graph.
In his application, the applicant claimed that he experienced psychological harm when his father was admitted to hospital and the family was responsible for the bills.
In his pre-hearing submission, the applicant provided a statutory declaration from his wife dated 15 April 2023. She claimed that the applicant was ‘stressed out’ because of what he had to go through at his job, helping his sister pay off his father’s medical bills and being the family breadwinner. She claimed the situation caused him to become frequently ill and that he suffered severe headaches, body pains, asthenia (abnormal physical weakness or lack of energy), and blood and pus coming out of his ears. She claimed that he saw a doctor several times and they visited four different hospitals, but there was no improvement. She said that after a few months in Darwin, his health drastically improved and he decided to stay and ‘resign’ from Fiji. She claimed that they were only able to locate one medical record between 2011 and 2019 for the applicant from [Health Centre 1], which the applicant submitted.
The applicant submitted a medical report from [a] Medical Officer, [Health Centre 1] that said the applicant was seen at the health centre on 19 February 2019 for headache and body [pains]. The applicant was treated with paracetamol.
At the hearing, the applicant’s evidence corresponded with his wife’s statutory declaration. The Tribunal explained that the medical evidence before the Tribunal said the only treatment he received was paracetamol. The applicant was unable to explain why he had not gone to the main hospital in [City 1], which is [number] kilometres from his home, if his condition was so serious. The Tribunal explained that there is no corroborative evidence before the Tribunal to support his claim that he had blood and pus coming from his ears, such as a report from a medical practitioner. The applicant was asked if he received treatment in Australia and he said in his first week in Australia he went to a private medical centre however he did not provide any other evidence to support this claim, such as a report from the private medical centre. The Tribunal asked about the pre-medical examination the applicant underwent in Australia before working [in a field]. The applicant explained that during the medical examination he had [they] checked ‘everything’ including his blood, urine and blood pressure and physical exercise. He said that everything was normal and they did not identify any concerns. At the hearing the applicant said that he was in good health.
At the end of the hearing, the applicant’s sister said that she just wanted to support the applicant and that everything he had said was true. She said that by the time he wanted to come to Australia, his health was not good at all, and he wanted to visit and see their dad. The applicant’s brother-in-law also claimed that what the applicant had submitted was true, that he was not well when they wanted ‘to bring him over’, and that the medical records and archiving system in Fiji is not up to date and records can be lost. His brother-in-law said that [Health Centre 1] is a hospital and that the services at [Suburb 1] are similar to those at the main hospital in [City 1]. The Tribunal accepts that medical records may not be as well maintained in Fiji as in Australia and that the health facility at [Suburb 1] may be a hospital. As the applicant’s sister and brother-in-law had acted as support people throughout the hearing and had heard all of the applicant’s evidence, the Tribunal gives no weight to their evidence that everything the applicant said was true, that his health was not good at all, and that he was not well when they wanted to bring him over as the Tribunal was not able to test their evidence.
The applicant was asked about the information about Fiji’s health system that he had submitted to the Tribunal. He said that he is concerned about going back and facing those sicknesses again.
The Tribunal accepts that in 2019 the applicant found his father’s ill health and the associated medical bills stressful. The only evidence from a medical provider is that from [Health Centre 1], where the treating doctor provided paracetamol to manage the applicant’s symptoms. No corroborative evidence was provided from the private medical centre that the applicant claimed he attended in Darwin, and no evidence of medical treatment beyond the administration of paracetamol was provided. The Tribunal gives greater weight to the evidence from the medical provider than it does to the evidence from the applicant, his wife, sister and brother-in-law about his health in 2019. Based on the evidence from [Health Centre 1], the Tribunal does not accept that the applicant had blood and pus coming out of his ears in 2019 or that he experienced psychological harm. Based on the applicant’s evidence at the hearing, the Tribunal accepts that the applicant is currently in good health. Based on the information before it, the Tribunal is not satisfied that there is a real chance or a real risk that the applicant will experience serious harm or suffer significant harm because of his health if he returned to Fiji now or in the foreseeable future.
Applicant’s father
In his application, the applicant claimed that returning to Fiji will not assist in settling his father’s hospital bill. He submitted information relating to his father’s health condition and the associated hospital invoices, and claimed that he could not pay the outstanding hospital bills without employment in Australia.
At the hearing, he applicant was asked about the information he provided relating to his father’s health condition. He said that his father is gone but one of the reasons that he is still in Australia is to pay off the bills. He said that there is $15,000 left and he is here to finish paying off those bills. The Tribunal accepts that the applicant’s father was treated as a private patient in an Australian hospital. The Tribunal accepts that the applicant would like to help his sister to pay off the outstanding health bills. The Tribunal does not accept that there is a real chance or a real risk of the applicant experiencing serious harm or suffering significant harm in Fiji now or in the foreseeable future because of his late father’s health bill.
The applicant said that it will be hard for his health to return to Fiji because his father is buried in Darwin. He thinks that he would experience stress and distress thinking about his father being buried in Darwin and that, in his culture, the family has to go and clean the grave every year.
The Tribunal accepts that the applicant would like to tend his father’s grave annually and that it may be distressing for him if he is not able to do so. The Tribunal considered whether forced separation from his father’s grave could be considered persecution involving serious harm and systematic and discriminatory conduct. The Tribunal finds that the stress and distress the applicant may suffer does not meet the threshold of serious harm. The Tribunal considered whether forced separation from his father’s grave could be considered significant harm. The judgments in SZRSN v MIAC and GLD18 v MHA confirm that separation from one’s family members in Australia, where the claimed harm arises from the act of removal itself, will not meet the definitions of significant harm in s 36(2A).[5] The Tribunal applied this reasoning and finds that the removal of the applicant from Australia to Fiji and the separation from his father’s grave does not constitute significant harm as defined in s 36(2A). The Tribunal does not accept that there is a real chance or a real risk that the applicant would experience serious harm or suffer significant harm by being separated from his father’s grave.
Security situation
[5] SZRSN v MIAC [2013] FCA 751 at [47]–[49] and GLD18 v MHA [2020] FCAFC 2 at [36]–[58].
At the hearing, the country information about the security situation in Fiji was discussed, noting that there had been an election at the end of 2022.
Fiji is generally stable and secure. The most recent elections in 2018 were orderly and free from violence. Crime rates, especially for violent and organised crime, are generally low. The risk of terrorism is low. Organised crime exists in Fiji, but it is not large-scale and is unlikely to affect people’s day-to-day lives. Some alcohol-related street violence occurs. Domestic violence is a serious problem. Accusations of police violence are commonly reported and regularly investigated.[6]
[6] DFAT (no 1) 10.
The applicant said that it is not confirmed that Fiji is stable now, based on articles that he is reading every day and what is happening in Fiji. He said that he can tell in terms of security that it is not stable, but maybe after five years it would be. He claimed that there is a lot of violence still going on, for example the Attorney General was taken to court in the last few days. As discussed with the applicant, his family is not active politically and he had said that nothing had happened to his family in Fiji. He responded that there was no reason anyone would target his family, that the burglary happened to him.
The Tribunal gives greater weight to the country information from DFAT. As discussed above, the Tribunal is not satisfied that the applicant’s home was targeted because of his membership of the RFDF or his service in [Country 1]. Burglary. Based on the information before it, the Tribunal does not accept that there is a real chance or a real risk that the applicant will experience serious harm or suffer significant harm because of the security situation in Fiji now or in the foreseeable future.
Freedom of speech
In his application, the applicant claimed that there is no freedom of the press or free speech in Fiji. At the hearing, the applicant’s brother-in-law questioned the country information, which he believed was from 2016. He claimed that it reports on a time when freedom of speech and rights as citizens of Fiji had been confiscated. He claimed that as a former police officer in Fiji and a former member of the Australia Defence Force, he can understand that there are times when it comes to security that you cannot talk to the media. He suggested that the Fijian government would submit what it wanted to submit. However, he agreed that all rights in the Constitution would be extended to the applicant.
The Country Information includes the following about Fiji’s 2013 Constitution:
Fiji’s 2013 Constitution contains a Bill of Rights. The Constitution specifically protects the rights to life, liberty, equality and freedom from discrimination, as well as the freedom of movement, assembly, expression and religious belief. Alleged breaches of the Bill of Rights can be pursued in the High Court.[7]
[7] DFAT (no 1) 10.
The Tribunal gives greater weight to the country information from DFAT. The Tribunal is satisfied that the applicant could avail himself of the protections of Fiji’s Constitution.
Other claims
At the hearing, the Tribunal discussed with the applicant the documents he had submitted as part of his review application and regular updates he provided to the Tribunal. The applicant was asked about the information he submitted relating to his employment, skills and training. He said that he is really happy about doing training and studies and with what he has achieved. He said that his aim is to complete a [course] as he applied for a [role] at [a workplace] and they told him he had to be certified. The Tribunal accepts that the applicant has worked in Australia, that he holds a number of qualifications and that he has worked hard to build his skills and qualifications.
The applicant claimed that he has committed himself to Darwin in terms of paying his tax bills, taking up roles in the community and committing to full-time employment. He said that he has completed his study and he is enjoying himself. He believes that for him to go back to Fiji would be a waste as he is already committed in Australia and he has been working hard and enjoying his life and trying to further his studies. The applicant was asked about the information about Darwin that he had submitted to the Tribunal and he said that was to show that he was active in the Darwin community. The Tribunal asked him why he had not applied for a work visa, given that he met the skills tests. He claimed that it was too hard for him to go through and too expensive. He said that it was easy for him to go through this visa given what he was going through in Fiji.
The applicant was asked about the documents relating to his family, including about his wife’s training. He said that he just wanted to confirm that he has a family who he is also looking after as well as paying his father’s bills. He said being separated from his family is not easy and he would like his family to be able to enjoy the opportunity of being in Australia.
The applicant was asked about the information he had submitted about cyclones and COVID-19. He said that, during the time in 2020, people were losing their jobs and it was hard to find work. He said that to have gone back then would have been hard for him. When asked if it was an impact that would still affect him, the applicant said that people are still looking for work now. He said that he would have to apply again and he would face a lot of disadvantage. As discussed at the hearing, the applicant provided evidence of his extensive work history and qualifications and training in information communications technology. He did not provide any collaborative evidence to support his claim that he would face a lot of disadvantage. Based on the evidence before it, the Tribunal is not satisfied that the applicant would find it hard to find work or that he would face a lot of disadvantage if he returned to Fiji now or in the reasonably foreseeable future.

100. He was asked about the article he provided about Belinda Checkley, the British woman who faced being deported before the Immigration Minister intervened. He claimed that there were similarities between her case and his. The Tribunal discussed how the cases were different, including that the British woman was not seeking protection. The applicant said that like she had no life back in the UK, he had no life back in Fiji. The Tribunal reminded the applicant that he had a wife, [children] and two properties in Fiji. He claimed that would not help him if he got sick again. As discussed above, the Tribunal is not satisfied that there is a real chance or a real risk that the applicant will experience serious harm or suffer significant harm because of his health if he returned to Fiji now or in the foreseeable future.
101. Considering the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that there is a real chance or a real risk that the applicant will experience serious harm or suffer significant harm if he returned to Fiji now or in the foreseeable future.
Conclusion
102. 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).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION

105. The Tribunal affirms the decision not to grant the applicant a protection visa.
Katherine Harvey
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.
…

[2023] AATA 2563

29 June 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction