2009745 (Refugee)

[2024] AATA 1135

2009745 (Refugee) [2024] AATA 1135 (8 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mrs Prisca Chinwe Eboh

CASE NUMBER:  2009745

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Khanh Hoang

DATE:8 January 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 08 January 2024 at 8:52am

CATCHWORDS
REFUGEE – protection visa – Fiji – ethnicity and political opinion – Indigenous Fijian opposed to government’s policies – withdrawal of part of national superannuation before departing and the balance while in Australia – official investigation of suspected fraud by superannuation fund employees – no evidence of investigation of fund-holders – late claim, no reasonable explanation and adverse inference drawn – mental health – country information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 423A
Migration Regulations 1994 (Cth), Schedule 2

CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Sun v MIBP [2016] FCAFC 52
SZLVZ v MIAC [2008] FCA 1816

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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 2 June 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of Fiji, arrived in Australia in July 2019. He applied for a protection visa on 20 September 2019.

3. The issues in this review are whether there is a real chance, if the applicant returned to Fiji, that he would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Fiji, there is a real risk that he will suffer significant harm.

4. The applicant appeared before the Tribunal on 29 November 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.

5. The applicant was represented in relation to the review.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CRITERIA FOR A PROTECTION VISA

7. 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.

8. 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.

9. 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).

10. 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.

11. 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.

    The country of reference and applicant’s identity

12. The applicant claims to be a citizen of Fiji. Based on a copy of the applicant’s passport on the Departmental file, and in the absence of any other evidence to the contrary, the Tribunal finds that Fiji is the applicant’s country of nationality and his receiving country for the purposes of the refugee and complementary protection assessments.

    Mandatory considerations

13. 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.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Protection visa application

14. In his protection visa application, the applicant attached a statement that set out his claims for protection. Those claims are summarised in the delegate’s decision, as follows:

    -    He last arrived in Australia in July 2019 and the last six weeks have made him realise that his visits to Australia have greatly helped him as an individual who has for the last 10 years or so being suffering from depression anxiety [sic];

    -    He does not feel safe going back to Fiji because the current government is taking away Indigenous Fijians’ rights;

    -    He is a strong advocate of human rights; and proud to be a Fijian, one who strongly advocates for traditional values to be maintained;

    -    His right as an Indigenous person has been deprived and suppresses because he is an iTaukei;

    -    This increases his stress and psychologically negatively affects him, resulting in him getting angry and depressed and becoming aggressive;

    -    In Fiji he has experienced a lot of psychological and mental depression;

    -    Coming to Australia has greatly improved his health condition;

    -    Meeting new people and getting great counselling has assisted him reducing the psychological stress;

    -    In Fiji there is no one to turn to; no NGO in place to assist him;

    -    The Fiji government is responsible for the psychological harm;

    -    The Indigenous Fijians are not recognised as the first people of Fiji and their cultural and traditional values are not respected by the current government;

    -    Media is controlled by the government;

    -    There is no freedom of speech in Fiji; Fiji is not a democratic country;

    -    He cannot criticise the government of the day because it will result in him being arrested;

    -    If he goes back to Fiji, he will continue to suffer psychological and mental stress and verbally abused his family in Fiji.

15. The delegate refused the grant of the protection visa as the delegate was not satisfied that the applicant faces a real chance of persecution on account of his race/ethnicity or political opinion (actual and/or imputed) now or in the foreseeable future if he were to return to Fiji. In arriving at the decision, the delegate considered that country information on the treatment of Indigenous Fijians, political freedoms, access to mental health care and the economy did not support the applicant’s claims. For the same reasons, the delegate was not satisfied that there is a real risk that the applicant will suffer significant harm under the complementary protection criterion.

    Evidence before the Tribunal

    The applicant’s background

16. The applicant is a [Age]-year-old male and was born in [Island]. He is the [birth order] in his family and he has [brothers] and a sister. Both of his parents are deceased. He has a wife and [child] both of whom continue to reside in Fiji and with whom he keeps in contact weekly.

17. The applicant was educated to Grade 10 but did not finish secondary school as his parents could not afford to pay school fees. He completed a [course] and thereafter joined the [Employer] in [Year]. The applicant worked in the [Employer] as [an Occupation 1] for over 30 years and retired in August 2019. During his career in the [Employer], the applicant undertook [duties] in [Countries 1 and 2] in [Years].

18. In 2018, the applicant arrived in Australia via [Transport] from Fiji. The [Transport] was due to be refitted in Australia before being returned to Fiji. The applicant was the [work position] on that trip. He had also prepared his CV with the intention of seeking work opportunities in Australia, in [City] or elsewhere. The applicant stated that he distributed his CV to potential employers, and a potential opportunity arose with [an employer]. However, the applicant could not commit to that opportunity as the [Transport] he was working on needed to be returned to Fiji.

19. The applicant returned to Fiji and applied for another visa to come to Australia. As noted above, he arrived in Australia [in] July 2019 on a multiple-entry Visitor FA 600 visa that expired on 11 October 2019.

    FNPF pension withdrawal

20. On 27 November 2023, the applicant made a pre-hearing submission to the Tribunal via his representative. That submission sought to advance two main reasons why the applicant fears returning to Fiji: circumstances related to the withdrawal of his Fiji National Provident Fund (FNPF) pension and his indigenous and political views.

21. In his pre-hearing submission to the Tribunal, the applicant stated as follows at paras [2] to [6]:

    2. The applicant states that two weeks before his visitor visa expired, a friend contacted him from his former workplace in Fiji and informed him that all the people that withdrew their pension in 2019 had been arrested by the police in Fiji. The friend told him that he should not return to Fiji because if he did, he would be arrested and there is a likelihood that he would suffer degrading and inhuman treatment.

    3. The applicant received part of his FNPF pension just before he arrived in Australia in 2019. The applicant states that in Fiji, FNPF pension can be withdrawn when you are 55 years old or if you want to buy a land or a house in which case you can withdraw before 55 years old. As he was planning to travel to Australia, some staff at the FNPF and Land office in Fiji contacted him and advised that his FNPF Pension was claimable. The FNPF Pension is similar to the superannuation fund in Australia. The applicant then signed all the necessary documents and allowed them to withdraw the funds on his behalf by completing the required forms and submitting the necessary documents.

    4. The applicant affirms that after completing the required forms given to him, he received his FNPF pension fund in parts. The first payment was made in 2019, in the sum of 47,000 Fijian dollar which is about 31,978.83 AUD and later in 2023, he received the remaining balance of 78,000 Fijian dollars which is about 53,071.25 AUD.

    5. The applicant said the news of what the FNPF and Land office staff that helped him to cash out his pension is making him fear for his own life. He explains that Fiji is prone to extra-judicial killing and torture and that he would be a target to the authorities if he returned to Fiji. He strongly believed that they processed his FNPF Pension properly and legally and he had no idea of any issues surrounding the payment of the FNPF Pension.

    6. The applicant fears that if he returns to Fiji, there is a real chance that he will be persecuted or subjected to harm and violent treatment particularly because he used to be a member of a top [Work sector] in his home country.

22. At the hearing, the applicant confirmed that prior to his visitor visa expiring, a friend called him and told him not to return to Fiji. He claimed that his friend told him that his case (i.e. his withdrawal of FNPF funds) was under investigation and that the people involved with the withdrawal of funds had been taken to the police station. When asked whether the investigation was in relation to his case specifically or several cases, the applicant stated that the investigation involved all of those who withdrew their FNPF funds.

23. When asked whether it was his understanding that individuals attempted to defraud the FNPF, the applicant stated that he did not realise that these withdrawals did not follow proper processes. He stated that he had no hard evidence that his withdrawal was related to any fraudulent activity, only what he heard in the news and what he was told by workmates. He told the Tribunal that staff members from the FNPF and Land department have been running activities for a while, which included the withdrawal of two-thirds of a person’s pension funds and arranging for airfares, visas and employment in Australia in exchange for a certain amount of money, around $4,000. When asked if this arrangement applied to him, the applicant stated that it did not, and that he had paid his own way to come to Australia and look for work.

24. The Tribunal explored with the applicant his understanding of the FNPF rules around the withdrawal of pensions. The Tribunal noted that its understanding was that a partial withdrawal could be made for varied reasons, including to facilitate education and the purchase of land or property. The applicant stated that an individual is entitled to full withdrawal after reaching the age of 55. A partial withdrawal was also possible if a person is under 55, and they use funds to buy a house or something of that nature. A partial withdrawal is limited to two-thirds of one’s pension funds.

25. The applicant stated that prior to leaving for Australia, he applied for partial withdrawal of his pension funds, because he wanted to have ‘pocket money’ expenses for his time in Australia. He initially stated that the FNPF staff came to him, he signed a form and put his left thumbprint on the form. The Tribunal asked what his stated reason on the form for partial withdrawal was, and the applicant replied that they (FNPF staff) did not require him to have a reason and did not ask him for a reason. When asked whether he had any documentary evidence, the applicant stated that he did not have a copy of the application form. He told the Tribunal that FNPF staff came and took the form with them. The applicant stated that he was still in the [Employer] at that time, and the application was made around the time that his visitor visa was approved.

26. The Tribunal asked the applicant when exactly he received his pension payments in 2019 and 2023. The applicant stated that, in 2019, it was about a week before he came to Australia. He told the Tribunal that he sent the form off on Tuesday and was told to wait until Friday to receive his money. In relation to the 2023 payment, the applicant stated that he received the money ‘a couple of months ago’. The Tribunal asked if the applicant had any evidence to substantiate that he had, in fact, received the payments in 2019 and 2023. The applicant stated that he had some paperwork with him, and the money was now in his account. The Tribunal advised the applicant that it would give him seven days after the hearing to provide any further evidence in relation to the pension withdrawals.

27. On the same day, and following the hearing, the applicant’s representative forwarded a copy of a FNPF ‘full withdrawal’ application form. The form was dated and signed by the applicant on 28 June 2023 and includes a red thumbprint. The Tribunal notes that ‘section D’ of the form titled ‘Payment details’ was left blank.

28. The Tribunal asked the applicant what he thinks would happen to him if he were to return to Fiji. The applicant stated that the police would question him. He does not know what will happen after that. When asked how the police would suspect him of any wrongdoing, and, if there was an ongoing investigation in relation to his case, how it was that he was able to withdraw funds in 2023 without any problems, the applicant stated that in relation to the 2023 payment, he could access his funds because he was over the age of 55. In relation to the 2019 payment, he stated that the police would question him because they have ‘not left anyone else out in that case’. The applicant claimed that the police would have a file on him and if they looked back at the 2019 case that he would come to their attention.

29. The Tribunal put to the applicant that it might consider that drawing a link between his 2019 withdrawal and any fraudulent activity on behalf of FNPF and Land office staff to be speculative. The Tribunal put its concern to the applicant that, while he fears questioning from the police, this may not amount to serious or significant harm. Nor does it appear on the evidence before the Tribunal that the police would target him for one of the reasons of race, religion, nationality, or membership of a particular social group.

30. Further, the Tribunal asked the applicant why he had not presented this claim to the Department. The applicant stated that he was assisted in his protection visa application, but he does not know why his agent did not include this claim in his protection visa application. His representative, Mrs Eboh, told the Tribunal that he raised this matter with her upon engaging her services, and that due to the applicant’s English skills, there may have been a miscommunication between her client and the visa agent resulting in the claim not being made.

31. Post-hearing, Mrs Eboh submitted that her client has not engaged in any fraudulent activities but that if others involved were the subject of police investigation, then her client was also at risk. She submitted that he was at particular risk because he is ex-[Employer].

    Indigenous heritage and political views

32. In his pre-hearing submission, the applicant claimed the following with respect to his indigenous heritage and political views at paras [9] and [10]:

    [9] The applicant affirms that another major reason for leaving his home country was because of his Indigenous heritage and political views on the treatment of Indigenous people which includes discrimination, removal of rights to freedom of speech. As a member of the iTaukei indigenous group of Fiji and a former [Occupation], he has been vocal on the suppression of the indigenous people and returning to Fiji will put him at risk of harm from the ruling government.

    [10] The applicant affirms that although there is no official discrimination against Indigenous Fijians, indigenous Fijians nonetheless suffer extreme discrimination, cruel and inhumane treatment from the government particularly those who have left the top [Work sector], which include the [Employer]. The inhuman treatments are mostly covert and under reported by the news media.

1. When the Tribunal asked the applicant how he had been ‘vocal on the suppression of indigenous rights’, the applicant did not give a direct response. On repeated questioning, the applicant stated that as he was part of the [Employer], he was a big supporter of the previous government and some of those who had been arrested in opposition were now in government. He stated that what the government is saying it will do for Indigenous people is not being done. He claimed that in the last election, the current government has his name as a supporter of the previous government and that they know he is in Australia. He is unsure what they will do to him on return.

2. The Tribunal put the applicant the gist of country information that suggested that there have been no reports that the current government has harassed or ill-treated supporters of the previous government. The applicant stated that was correct, but that the news is monitored and there are other agendas behind it that no one knows about.

   Other issues

3. The Tribunal asked the applicant if there were any other issues he wanted to raise with the Tribunal.

4. The applicant stated that if returned to Fiji he would not be employable, and it would be difficult for him to find work as he is over the age of 55. The applicant told the Tribunal he has been working as [an Occupation 2] for the [Employer 2] in the [Area] for about two years. When asked why, given his work history, he would not be able to find work in Fiji, the applicant stated that he was supporting his son and his sister’s son through university, that he doesn’t own a house and therefore must pay rent. He stated that the Fijian government was encouraging people like him to retire and encouraging more youth employment. He stated that in Australia, it is different because he can work until he is 70.

5. The Tribunal put to the applicant the gist of country information that the Fijian economy appears to have rebounded strongly since COVID-19, and that the Tribunal may find that he would be able to find work. The applicant emphasised that it would be difficult for him to find work due to his age. He asked the Tribunal if there was a visa that would allow him to stay on and be able to work and he would like for his family to come to Australia. The Tribunal stated that it could not offer him legal or migration advice. The Tribunal asked whether the applicant why he could not support himself with his pension money and the applicant stated that he plans to build a house in his village with the money.

6. The Tribunal asked the applicant about his claims in relation to his mental health. The Tribunal put to the applicant the gist of country information which suggests that Fijians have access to health care which includes mental health care. The applicant stated that, if he were to return to Fiji, he would suffer further stress from having to try and find work and this would impact his mental health. He stated that his mental health issues were a result of his [duties] in [Country 1]. He has not sought any treatment and his biggest concerns are that without work it would enhance his stress levels.

   ANALYSIS, FINDINGS AND REASONS

7. In assessing the applicant’s claims, the Tribunal has considered the information in the Department’s file before it, the oral evidence that the applicant gave to the Tribunal at hearing, and the pre- and post-hearing submissions made by the applicant’s representative. The Tribunal has also had regard to independent information regarding relevant matters and current conditions in Fiji.

   Refugee findings

   FNPF pension withdrawal

8. The applicant contends that, if returned to Fiji, he would come to the attention of the authorities because of his 2019 FNPF pension withdrawal. The proposition which the applicant asks the Tribunal to accept is that his application for partial withdrawal of his pension funds in 2019 became the subject of investigations for fraudulent conduct by FNPF and Land office staff. The applicant contends that the activities of those individuals would be attributed to him by authorities upon return to Fiji, and as a result, he would be questioned by police. He fears for his life and fears being subjected to degrading and inhuman treatment by police although he himself has not done anything wrong.

9. In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims. However, the Tribunal is not required to uncritically accept all, or any, of the applicant’s claims.[1] Nor is it required to have rebutting evidence available to it before it can find that a particular factual assertion made by an applicant has not been made out.[2] The mere fact that a person claims a fear of serious harm for a particular reason does not establish the genuineness of the fear or that it is either ‘well-founded’ or for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not itself substantiate that such a risk exists or that it amounts to ‘significant harm’. Although the concept of an ‘onus or burden of proof’ is one that is buried in the practice and procedure of superior courts of law[3] and, as a general proposition, has no application to administrative decision‑making,[4] it remains for the applicant to satisfy the Tribunal that all the statutory elements are made out.[5]

   [1] SZLVZ v MIAC [2008] FCA 1816 per Middleton J at [24].

   [2] Randhawa v MILGEA (1994) 52 FCR 437 per Beaumont J at 451; Selvadurai v MIEA (1994) 34 ALD 347 per Heerey J at 348 and Kopalapillai v MIMA (1998) 86 FCR 547.

   [3] Sun v MIBP [2016] FCAFC 52 (Sun v MIBP) per Flick and Rangiah JJ at [63].

   [4] Sun v MIBP Logan J at [6] per and per Flick and Rangiah JJ at [65]; SZLVZ v MIAC at [24] citing Yao-Jing v MIMA (1997) 74 FCR 275 at 288.

   [5] MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.

10. Having carefully considered the evidence before it, the Tribunal has serious reservations about the credibility of aspects of the applicant’s claim. The Tribunal accepts that the applicant may have read in the news and his friend alerted him to the existence of cases brought before the courts around the middle of 2019 that involved suspected fraud against the FNPF by its staff and those in the Land office. Newspaper articles sighted by the Tribunal confirms this aspect of his claim to be plausible.[6] It also accepts that, under the FNPF rules, a person can withdrawal a part of their pension fund if they are under the age of 55 for a range of reasons, including to buy a house or land. The Tribunal accepts that, once over the age of 55, a person can apply to withdraw their pension fund in full.

    [6] FBC News, Six more face court in alleged FNP fraud case, 20 August 209, available at FBC News, Alleged fraudsters released on bail, 1 October 2019, available at

11. On the basis that the applicant had noted in his protection visa application form that he was in receipt of pension payments, and having regard to the evidence presented at hearing, the Tribunal is willing to accept that the applicant made a partial withdrawal from his pension funds in 2019.

12. However, the Tribunal does not accept his claim that his 2019 pension withdrawal was somehow linked to fraudulent conduct of FNPF and Land office staff, or that his withdrawal remains under investigation on that basis. The applicant did not present any evidence to support his claim that all the people who withdrew from their pension in 2019 were under police investigation and arrest. Indeed, the applicant admitted, and the Tribunal accordingly finds, that he has no hard evidence to tie his pension withdrawal in 2019 to any proceedings involving the fraudulent conduct, other than what he had read in the news and what his workmates had told him. The Tribunal finds any link to be in the realm of speculation.

13. The Tribunal finds that the applicant has attempted to overcome the lack of evidence linking his 2019 withdrawal to purported fraudulent conduct of FNPF and Land office staff by claiming that FNPF staff approached him to withdraw his pension, and that he did not provide, and nor did the FNPF staff ask, for a reason to withdraw the money. While the applicant initially stated that FNPF staff approached him and took the forms with them, later in the hearing he stated that he sent the forms off to them on Tuesday and he received his payment on the Friday. This inconsistent evidence weakens the credibility of this aspect of the applicant’s claims. The Tribunal does not accept that FNPF staff approached the applicant or that he made an application without providing any reasons for his withdrawal.

14. The Tribunal’s finding is also buttressed by the application of s 423A of the Act, which was put to the applicant at hearing. The Tribunal acknowledges the explanation, as put by his representative, that his poor English skills might have contributed to a miscommunication with his agent which prevented the claim from being presented to the Department. The Tribunal observed the applicant to have a reasonable command of English during the hearing but is willing to accept that at the time the application was made, the applicant’s command of English may not have been as proficient as it is now. However, the Tribunal finds that, if the applicant had been alerted to the FNPF issues only three weeks before his visitor visa expired, and this contributed materially to his decision to apply for protection, it would be reasonable to expect that the applicant would have ensured that such a central claim was raised. As the Tribunal is not satisfied the applicant has a reasonable explanation, it draws an inference unfavourable to the credibility of this claim.

15. The Tribunal finds on the evidence before it that a more plausible scenario is that the applicant validly withdrew part of his FNPF pension in 2019 before he left for Australia, most likely to fund the purchase of property or land. This is consistent with his demonstrated understanding of the FNPF rules and eligibility criteria governing partial withdrawal, and the fact that he has repeatedly asserted throughout that he has done nothing wrong. It is also consistent with the applicant’s evidence that his latest pension payment is going towards building a house in his village.

16. The Tribunal therefore accepts that the applicant was paid 47,000 Fijian dollars in 2019, consistent with his protection visa application which stated that he was in receipt of pension payments at that time. The Tribunal finds that upon turning 55, the applicant has then made an application for full withdrawal of his pension in August 2023. The Tribunal accepts the documentary evidence submitted by the applicant which purports to be his application for full withdrawal of his pension. Tribunal accepts that the applicant was paid the sum of 78,000 Fijian dollars in 2023.

17. Based on the findings of fact made above, the Tribunal in turn finds that the applicant faces no real chance of persecution on account of his FNPF withdrawal, if returned to Fiji. As the Tribunal has found no link between the applicant’s 2019 withdrawal and any fraudulent conduct by FNPF or Land office staff, there is no reason for police to question or arrest the applicant upon return. Nor would the police have any reason to question the applicant about his FNPF pension payment of 2023, which the applicant was legally entitled to withdraw. The Tribunal therefore rejects that the applicant would be subjected to serious violence, or that he would suffer ill-treatment or degrading treatment at the hands of the police. It also does not accept that any risk of harm from the police – which the Tribunal has found to not be substantiated – would be elevated by virtue of his ex-[Employer] status.

18. Accordingly, the Tribunal finds that the applicant has no reason to hold a subjective fear of persecution for one or more of the grounds set out in s 5J(1) of the Act. In turn, the Tribunal finds that the applicant faces no real chance of harm, let alone serious harm, if he were to return to Fiji in the foreseeable future due to his FNPF withdrawal. Accordingly, on this claim, the applicant’s fear of persecution is not well-founded.

    Indigenous heritage and political views

19. The applicant was not able to, despite repeated questioning at the hearing, articulate to the Tribunal how, as a member of the iTaukei indigenous group of Fiji and a former naval officer, he has been vocal on the suppression of the rights of indigenous people. Accordingly, the Tribunal does not accept his claim of vocalising anti-government views in Fiji.

20. Further, nothing in the evidence before the Tribunal suggests that the applicant has a political profile, or that he has vocalised his opposition to the current Fijian government to such a level that he would attract any attention upon return to Fiji. While the country information does state that the current government has suspended and is investigating high‑profile public office holders appointed by the former government,[7] the applicant is not a public figure. The Tribunal finds that, if returned to Fiji now or in the foreseeable future, the applicant faces no real chance of persecution on the basis of his political opinion, whether actual or imputed.

    [7] 'History’s Shadow Looms Over Fiji', Diplomat, The, 02 February 2023, 'Fijian women's rights activists welcome suspension of police chief, prison boss', Australian Broadcasting Corporation (ABC): Pacific Beat, 30 January 2023; 'Fiji's top prosecutor suspended for alleged misconduct', Radio New Zealand (RNZ), 14 April 2023.

21. Nor does the country information support the applicant’s claim that being a perceived supporter of the previous government would place him at any risk. DFAT country information reports that:

    In August 2023, DFAT stated that it was not aware of credible reports that the new government harassed or ill-treated any supporters of the previous government.[8]

    [8] ‘DPP amends charge against former Fiji PM Bainimarama’, Pacific News Service, 20 June 2023, 20230628153714

22. The Tribunal has considered the applicant’s claims that news is monitored and cannot be relied upon, but it prefers the DFAT information as it has no reason to doubt its credibility.

23. In relation to his claim that the Fijian government is taking away indigenous rights, the Tribunal has considered DFAT country information which suggests that there is no official discrimination against Indigenous Fijians:

    3.8 Indigenous Fijians descend from Melanesian groups arriving in western Fiji, and from Tongan, Samoan and other Polynesian groups arriving in eastern Fiji over the last several thousand years. Fijian culture is thus diverse and varied across the country. Fijian culture is traditionally hierarchical and patrilineal, and structured into a complex system of families, tribes, clans, and confederations of those groups.

    3.9 Some iTaukei feel a sense of economic or political marginalisation. iTaukei are more likely to experience poverty than are Indo-Fijians, but there are rich and poor among both groups.

    3.10 iTaukei are the majority ethnic group in Fiji and enjoy significant social, economic and political capital. Overall, DFAT assesses there is no official discrimination against indigenous Fijians. Some low-level societal discrimination exists that affects most Fijians as some people among both major ethnic groups perpetuate racist stereotypes against the other.[9]

    [9] Department of Foreign Affairs and Trade, DFAT Country Information Report Fiji, 20 May 2022, p 12.

24. The Tribunal has also considered the applicant’s claims that he would persecuted on account of his membership of a particular social group, which was expressed in his pre‑hearing submission as being a person of ‘iTauker extraction, but particularly those that have been involved with the security forces’. Nothing in the country information before the Tribunal supports this claim. While the applicant has also claimed that inhuman treatment of ex‑[Employer] are covert and under-reported by the media, he has also not presented any evidence to support this claim. Accordingly, the Tribunal does not accept that the applicant would be at any risk of harm based on his membership of a particular social group.

    Employment and mental health

25. The Tribunal accepts that the applicant may find it difficult to obtain employment due to his age if he were to return to Fiji and that this would impact on his mental health. However, the Tribunal finds that such a fear would not amount to persecution. For a fear of persecution to be well-founded, the fear must be for reasons of race, religion, nationality, membership of a particular social group or political opinion: s 5J(1)(a). Further, the grounds in s 5J(1)(a) must be the essential and significant reason for the persecution, and the persecution must be serious harm to the person and must involve systematic and discriminatory conduct: see ss 5J(4)(a), (b) and (c).

26. The Tribunal finds that the applicant’s claimed fear of not being able to find work in Fiji at his age relates to the general economic conditions and job market in Fiji. These conditions are not personal to the applicant and are faced by all persons in Fiji. It follows that there is no systematic or discriminatory conduct against the applicant and s 5J(4)(c) is not met.

27. Further, the Tribunal also finds that any harm feared by the applicant does not amount to serious harm. While serious harm can involve significant economic hardship, this must threaten a person’s capacity to subsist. The Tribunal finds that facing limited job opportunities does not amount to serious economic hardship that would threaten his capacity to subsist. The Tribunal notes that the applicant is in receipt of his pension funds, the purpose of which is to allow him to retire without the need to work and that he intends to build a house with these funds.

28. For completeness, the Tribunal has also considered the claim in his protection visa application that he will be verbally abused by his family in Fiji. The applicant did not present any evidence at the hearing regarding being abused by his family. Accordingly, there is nothing before the Tribunal to support a finding that the applicant will face serious harm on this basis. The Tribunal finds that the applicant faces no real chance of serious harm from his family if returned to Fiji.

    Conclusion: refugee findings

29. The Tribunal has assessed whether there is a real chance of serious harm in the foreseeable future if the applicant were to return to Fiji by considering the totality of the evidence and claims, individually and cumulatively. For the reasons given above, the Tribunal finds that if returned to Fiji, the applicant faces no real chance of serious harm by reason of withdrawal of his FNPF pension, his indigenous heritage or political views, his membership of a particular social group, or from his family members.

30. In relation to his claims that he would be unable to find employment and the subsequent effects on his mental health, the Tribunal has found that the harm feared does relate to any of the reasons in s 5J, and further, it does not amount to serious harm.

31. For all the reasons above, the applicant does not have a well-founded fear of persecution and he is therefore not a refugee. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

    Complementary protection findings

32. As the Tribunal has found the applicant to not be a refugee, it will now consider whether he satisfies the complementary protection criterion in s 36(2)(aa), namely whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Fiji, there is a real risk that he will suffer significant harm.

1. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). 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.

2. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[10] The Tribunal has found that the applicant faces no real chance of serious harm in the foreseeable future should he return to Fiji on account of his withdrawal of his FNPF pension funds, or for any reasons related to his Indigenous heritage or political views, or from his family. Based on the findings of fact above, the Tribunal is also not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Fiji, there is a real risk the applicant will suffer significant harm for those reasons.

   [10] MIAC v SZQRB [2013] FCAFC 33.

3. In relation to the applicant’s claims about his inability to find a work and its potential impact on his mental health, the Tribunal finds that any harm the applicant might suffer to not constitute ‘significant harm’ as defined in s 36(2A). That is, there is not a real risk that the applicant will be arbitrarily deprived of his life; or the death penalty will be carried out on him; or he will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.

4. 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).

5. 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

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

   Khanh Hoang
   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.

   …