2010877 (Refugee)

2010877 (Refugee) [2024] AATA 2697 (11 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2010877
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Amy Faram
DATE:11 April 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)the first named applicant satisfies s 36(2)(aa) of the Migration Act; and
(ii)the other applicants satisfy s 36(2)(c)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 11 April 2024 at 5:40pm

CATCHWORDS
REFUGEE – Protection Visa – Fiji – family’s long-term connection to a local indigenous settlement – First Applicant was threatened by gang members/associates – race – Indo-Fijian ethnicity – known or perceived opposition to gangs and/or drug dealing – relocation not reasonable – membership of the same family unit – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 279
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 30 June 2020 to refuse to grant the Applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The Applicants, citizens of Fiji, applied for the visas on 24 January 2020. The delegate refused to grant the visas on the basis that they would be assisted by the police, should they require it, and that they would not experience serious or significant harm on account of being unable to support themselves in Fiji.
The Applicants are husband (First Applicant), wife (Second Applicant) and two children, the Third and Fourth Applicants.
The Applicants appeared before the Tribunal on 14 March 2024 to give evidence and present arguments. The Tribunal was assisted by an interpreter in the Hindi and English languages. A Hindi-Fijian dialect interpreter had been requested but not provided. The Applicants spoke English well and used a combination of English and Hindi, mostly English, to communicate with the Tribunal. The Tribunal checked during the hearing that the Applicants and interpreter were confident in their understanding of each other, and the Tribunal is satisfied the Applicants were fully able to participate in the hearing and that their opportunity to be heard was effectuated.
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, they are either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or are a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criteria
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.
Complementary protection criteria
If a person is found not to meet the refugee criterion in s 36(2)(a), they may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’).
A real risk (as with a real chance, per the refugee criteria) is one that is not remote or insubstantial or a far-fetched possibility.[1]
[1] Chan Yee Kin Ors v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.
Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if they 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. There is an intentional element to the meaning of cruel, inhuman and degrading treatment or punishment (SZTAL v Minister for Immigration and Border Protection [2017] HCA 34).
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
Sections 5(1) and 36(2A) and (2B) are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether, on account of the risk posed to the First Applicant from gangs and corrupt police and / or the family’s ethnicity, the Applicants are persons to whom Australia has protection obligations under s 36 of the Act and cl 866.221 of Schedule 2 to the Regulations.
The Tribunal records that having reviewed the Applicants’ identity documents and heard oral evidence from the First and Second Applicants, it is satisfied as to their identities as citizens of Fiji. For the purposes of this protection eligibility assessment Fiji is the ‘receiving country’, and the Applicants’ protection claims are assessed with regard to circumstances in Fiji as these relate to them.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
The First Applicant came to Australia on [date] January 2020. His wife and children joined him four days later, on[date] January 2020.
In the family’s application for protection, made 24 January 2020, the First Applicant set out their claims, reproduced here in summary form:
He used to work at a club that was dominated by indigenous Fijians. At first it was good, but then he started to experience racial discrimination and it started getting harder. He managed to hang in there for a few years, but things started to get worse and he faced insults and physical assaults.
The problems went from work to home. He did not receive much help and the people he worked with stuck together, being from the same ethnicity. They supported each other and planned to get rid of him. He kept on taking it because he did not have another job to go to.
If he had to return to Fiji he would not have a job or a home; the family was not safe where they were living, which was a squatter settlement owned by indigenous landowners who would demand money from them. He had to work through the night and was afraid for his family at home alone. While at work, he would get phone calls from his family about them being harassed by people.
At work, he couldn’t do his job as he had to control a Fijian dominated club and being Indian meant he used to receive racial comments and sometimes be manhandled.
He tried to lodge complaints but nothing came from them. In terms of work, the response was they can’t arrest everyone and it is part of his workplace for people to be drunk, and in terms of the issues at home, complaining only caused more problems.
He did not move: he had been working at the same place for 10 years, and could not leave the job because he would not get another to support his family.
He cannot return to that workplace, and the land that they used to stay at has now been taken over by the traditional landowner: because they are Indo-Fijian they cannot afford to rent proper land as it costs too much.
Prior to the hearing, the Applicants provided copies of identification documents for the First Applicant’s brother, now a [Country 1] citizen, and character reference letters, one from the children’s school, one from the Second Applicant’s work and one from the Minister of the church the Second Applicant attends.
The Tribunal took evidence first from the Second Applicant. She became visibly distressed and gave evidence that the family had experienced severe stress in Fiji prior to coming to Australia. Her evidence was that this was on account of their housing situation, and the fact that her husband was being harassed and assaulted at work.
The Second Applicant explained that they had met around 10 years ago: the shop she had worked at was opposite the nightclub where he had worked, and they came to know each other. He is a good husband and a good father.
The Second Applicant gave evidence that immediately before coming to Australia they had lived in a private [rental]. They had found this home through social media, but it took all of their money to do so: they had to pay debts from the previous tenants, and the landlord did not return their bond to them when they had to leave.
Before this home, they had stayed some months with her mother in [City 1], but could not continue to live there, and they had previously and for the longest period lived with the First Applicant’s mother in a [settlement]. The situation between the Applicant family and the indigenous landowners deteriorated such that they had to leave their long-time home. They went first to her mother’s home and then to the private rental. The settlement home and belongings have now been abandoned: his mother now resides in [Country 1] because it was not safe for her to be there alone.
The Second Applicant gave evidence that they came to Australia because Fiji is for Fijians and they faced a lot of racism there. She did not feel safe there, especially once she had had children. They were harassed in the settlement and her husband’s job was very difficult. People would call them ‘Kaidia’ and say you Indians don’t deserve to be here. They would throw stones at their house and she had seen a Fijian man trying to break in. She spoke with the police about this but they did nothing. She feels this is because of favouritism towards indigenous Fijians.
The Second Applicant gave evidence that it is also very difficult financially in Fiji and her mother is now growing her own vegetables to survive, though they provide money when they can.
The Second Applicant gave evidence that the primary reason for their travel to Australia was the fact that they did not feel safe in Fiji because of the job the First Applicant did. It meant that he was out of the house at night, leaving her vulnerable at home, and he was also working with Fijian people that were threatening him. This became too much and because of their children they decided they had to leave - they chose Australia because it was safer.
If they returned to Fiji she felt that anywhere they go they would be tortured and it would be hard to get a job. She explained that they had had to move out of her mother’s house, and that the indigenous Fijians troubled them when they were at the settlement. The racism made it difficult, and last year a woman was murdered in her home. The safety of her children was the most important thing.
The First Applicant’s evidence regarding the family’s previous addresses was consistent with his wife’s evidence about those matters.
He explained further that he had worked at a nightclub for 10 years, first as a [role], then as a [role] and, more recently, for around four years, as its [Position 1]: he knew the ins and out of it all. He explained that the owner of the club, [Club 1], was originally [Mr A], and then it had been bought by an Indo-Fijian business man, [Mr B]. He had been acting [Position 1] under [Mr A] and, at the time of the take-over, was recommended to [Mr B] who kept him in that role. [Mr B] owned other establishments on the island. He said their relationship was ok at first but became complicated.
The bouncers of the club were indigenous Fijians, and illegal stuff was happening at the club. The First Applicant tried to stop them, and there were initially a couple of bouncers that stayed loyal to him, but it wasn’t enough and the majority turned against him and continued to do illegal things. Questioned about the illegal things, the First Applicant said they were selling drugs. As he understood it, it was mostly methamphetamine and some pills, though he wasn’t really sure. It was a popular club and though he tried to get them to stop, they would not give it up as a place to sell their products. He didn’t want to tell his boss because he came to know that this was happening in another of the owner’s clubs, with cooperation from the manager of that club, and he suspected he would lose his job, his family’s only source of income, if he created any issues.
He gave evidence that the problems at work followed him back home. The settlement where he had lived for many years with his mother, was owned by indigenous Fijians and they – the people in the settlement and the Fijians selling drugs in his club - knew each other and had connections through the land.
The indigenous landowners continued to raise the amount of money the family needed to pay, saying ‘it’s our land, pay more’. As things got more heated and difficult his brothers looked for ways out. One got a visa in [Country 2] and left for there, and the other got a chance to go to [Country 1] and settled down there.
The indigenous Fijians had also pressured him to join their drug enterprise. They showed him what they were selling and how to sell it, as well as how a lot of money could be made.
A few months before he came to Australia, one of the bouncers took him to a house where a guy was getting bashed up badly. He thinks their intention was to show him what happens to people that don’t play by their rules. He wasn’t sure of all the arrangements but thought a gang by the name Nabua Topline Warriors were involved. One of the Topline leaders, Jone Vakarisi, would come to the club. He had committed serious crimes in Fiji and would be in and out of remand.
The First Applicant gave evidence that he and his wife tried to move away from the settlement but it didn’t work to relieve the pressure they were under because the situation at work continued – people would still approach him and pressure him and then the owner of the private rental wanted to move back in.
He tried to tell the police who he was familiar with about the situation at the club. He didn’t talk to the junior police, but to the more senior ones. A few of the people pushing drugs got called into the police station and spent a night or two there and were then released. He knew he was in trouble then, and that nothing would happen to stop them.
The fact that the First Applicant had spoken to the police became known, and he was threatened that if anyone got into deeper trouble – that is, was actually put away for a longer period of time - they would come for him and ‘physically take care of’ him. The message was that there are more of them on the outside than in, they are everywhere, and that if their family is affected, his would be too. He thinks the police received pay-offs not to take further action.
The First Applicant explained further that while a couple of the bouncers had been looking after him in the beginning, they turned against him. The threat was that they wouldn’t do anything to him themselves but if someone else comes in to do so, they wouldn’t stop them. There were also attempted break ins at their home. Things were getting bad and he could not take it any longer. He came to Australia because he already had a visa and then after two days said to his family they should come also.
When asked about the claims as set out in his protection visa form, the First Applicant gave evidence that he was scared to mention the word drugs. He said the difficulties that were happening at home had happened but that his evidence about the drugs was also true. His wife knew about the problems at home and at work but did not know they were connected. She was home alone mostly, and already scared: when they were on the settlement, he tried to get her aunt to stay with her so she wouldn’t be alone, but she did not feel safe there either.
He did not think he would have been safe in Fiji if he had left his job and moved away. He believes they would still have come after him, adding that some of them have since gotten in trouble with the authorities there. Fiji is a small place and they have people everywhere, so even moving to another island wouldn’t be enough.
The First Applicant said more recently some gang members had been caught, and that a senior police officer had also been allegedly involved. He added that he thought in around 2020 one of the leaders had been caught with methylamphetamine. He gave evidence that he remained scared in Australia and had not told anyone, even family, precisely where in Australia they were living. He fears for his life. He has seen a lot of their inside world, and they know he has gone to the police. They will think that their troubles started with him and will go for him. He fears his family members will be targeted also.
Following the hearing, the Applicants provided the Tribunal with evidence of the First Applicant’s work history at [Club 1], as well as with country information in the form of news articles regarding drugs and gangs in Fiji, and a 2019 blog post that referenced the same issues, adding that ‘bouncers in nightclubs peddle’ and that drug dealers have influence over protective services.[2]
Country information
Nightlife, drugs and gangs
[2] Fijiexposedforum.wordpress.com, Drug dealers exposed part 2, 30 July 2019.

Country information indicates [Club 1] is a venue popular among [locals].[3]
[3] [deleted]
Country information further provides the following general caution and context about Fiji’s nightlife:
Most assaults and robberies occur at night around popular restaurants and nightclubs, particularly in downtown Suva and on Victoria Parade street. Often, the perpetrators and/or victims are intoxicated. Areas located near impoverished settlements, including some resorts, have a higher rate of burglary. Such settlements are ubiquitous and difficult to avoid. Non-violent crime poses a moderate threat to foreign nationals, expatriates, and local staff and is more concentrated in urban areas, including in downtown Suva and Nadi, though incidents may occur in remote regions as well.[4]
[4] Fiji Country Security Report, The Overseas Security Advisory Council US Department of State, 14 June 2023.
The most recent DFAT report for Fiji, states that ‘Fiji is generally stable and secure… Crime rates, especially for violent and organised crime, are generally low. …Organised crime exists in Fiji, but it is still not large-scale and is unlikely to affect people’s day-to-day lives.’[5]
[5] DFAT Country Information Report FIJI, May 2022, (DFAT Report 2022) p10.
The Global Organised Crime Index reports that Fiji remains a transit country for heroin and cocaine with a growing domestic market for cocaine (dominated by local criminal gangs), and that it is a source country with local production supplying local trade and demand for cannabis: ‘[t]he drug is primarily sold on the streets in urban areas by local criminal networks, while product ion happens in rural areas.’[6]
[6] Global Organised Crime Index, 2023, Fiji, p4.
It further reported that Fiji is also ‘a major Pacific trafficking hub for synthetic drugs, including methamphetamine, which has led to an increase in addiction, corruption and gang violence. Methamphetamine is increasingly being manufactured locally, with laboratories found in both the greater Suva area and Lautoka.’[7]
[7] Global Organised Crime Index, 2023, Fiji, p4.
In the decade up to 2020, there was a marked increase in drug use and associated crime in Fiji.[8] In 2019, a local newspaper reported the ‘Fiji Police Drugs and Substance Abuse Unit Officer’, Alisi Lalabalavu, as saying ‘there has been a huge increase in methamphetamine cases where there were 148 arrests in 2013, 1,440 drug seizures in 2018 and the number is still increasing so far this year’.[9] Another article reported that police were working with some club owners to identify and arrest those selling drugs inside night clubs.[10]
[8] G. Butler, Vice News, Meth is Turning Fiji From a Tropical Paradise Into a Narco’s Playground, 15 September 2022; Fiji Country Security Report, The Overseas Security Advisory Council US Department of State, 14 June 2023.
[9] Fijivillage, The rising concern of drug dealing and consumption in Fiji, 28 July 2019.
[10] FBC News, Club owner joins the war against drugs, 26 August 2019.
An article in The Guardian provided insight into the experiences of dealers and users, particularly with respect to the level of volatility and violence in the drug scene:
In the early hours of a Saturday morning in the city of Nadi, … Isaiah* is sitting in a Burger King … explaining how he became a drug dealer.
He started five years ago, aged 13, selling cigarettes and marijuana. Now he sells cocaine and methamphetamines.
‘My family were selling drugs in Suva’, he says. ‘They said there would be a time when me and my cousins would take over. We start training, training, training.’
Isaiah inhabits Fiji’s underbelly, far removed from the tourist trail of white sand beaches dotted with coconut palms. Here, away from the five-star resorts and snorkelling safaris, people are reckoning with an explosion in the domestic use of what they call ‘white drugs’ – cocaine and methamphetamines – which until a few years ago were almost unheard of in the country.
… for Isaiah, drugs have become a way of life. After his family broke down when he was 10 he spent six years sleeping rough on the streets of the capital, Suva, where he fell in with a gang. Now he is the one doing the training, teaching boys as young as 11 how to deal drugs.
‘I’m the youngest of the dealers in Fiji, the youngest and the strongest’, he boasts. ‘I’m not worried about going to jail, I’m not scared of anyone. If you want to threaten me I’ll fuck you up,’ he says in a sort of general threat to the world.
…
The impacts of the burgeoning drug scene are visible on the streets of the country’s cities, Collingwood says.
‘I’ve seen terrible, terrible violence. I’ve seen a guys jaw come through his face, holes burnt in someone’s feet with a welding torch, I myself have nearly been killed with hammers and kerosene.’[11]
[11] The Guardian Australia, I’ve seen terrible, terrible violence: cocaine and meth fuel crime and chaos in Fiji, 25 June 2019.
Another article[12] further explored the issue, setting out detailed information about the situation in and around Suva, particularly with respect to indigenous gangs:
[12] G. Butler, Vice News, Meth is Turning Fiji From a Tropical Paradise Into a Narco’s Playground, 15 September 2022.
There’s only one way in and out of the biggest meth slum in Fiji, and it’s an unsealed dirt road that ends in a cul-de-sac. The taxi cab jostled as it made the drive, slowly, entering the heart of one of the many informal settlements peppered throughout the nation’s capital of Suva, a cluster of corrugated iron shacks.
…
When visiting Fiji in August, VICE World News was told that procuring meth is now as easy as “buying a lollipop,” with a growing number of locals cooking the drug in-country, child sex workers using and selling it on the streets, and the deepening influence of narco-corruption compromising some of the highest levels of society. Fuelling it all is surging demand, a floundering economy, and a deep-seated local market introduced by criminal deportees from the U.S., Australia, and New Zealand. And amid the ice boom, poverty, violence, and crime are rising to all-time highs.
…
“What we've seen over the past few years is the growth of a very strong regional drug market,” he told VICE World News. “[This] has caused a growth of criminality, prostitution, child exploitation, human trafficking, corruption, infiltration of the police forces, and infiltration of other government agencies [in Fiji].”
But while historically the big players have been transnational syndicates, recent years have also seen the emergence of what Sousa-Santos calls “indigenous regional gangs”—local criminals who run things from within the Pacific Islands and cater to the domestic market.
…
In recent years, such hunger has driven people in Fiji to start manufacturing their own product. Meth labs have been cropping up in homes, warehouses, and nightclubs around Suva and Nadi, Fiji’s third largest city, as amateur cooks turn their hand to feeding the domestic market. The majority of Fijian users who can’t afford the premium white are often left with no safer option than this second-rate, locally manufactured ice—or, in some cases, a fake substitute like flakka, crushed candy, or salt.
With respect to gangs, the Global Organised Crime Index wrote in 2023 that ‘[w]hile there is little evidence of domestic mafia-style groups in Fiji, loosely organised criminal networks exist, primarily engaged in drug production and trafficking, money laundering and human trafficking. The county is a valuable trans-shipment point, and the largest Pacific-based outlaw motorcycle gang (OMCG) is the Fiji Rebels. …. Criminal activity is arguably widespread across the island, occurring both in remote and densely populated areas’.[13]
[13] Global Organised Crime Index, 2023, Fiji, p4.
Country information confirms that Jone Vakarisi is a gang leader in the Mead Road, Nabua area in Suva.[14] The Tribunal found references to a Mead Road, Nabua based gang and, it seemed potentially interchangeably, a gang known as Topline, also said to be based out of public housing on Mead Road.[15] This housing community is known as Nabua Topline.[16] In 2018, Mr Vakarisi was charged with offences relating to intimidation, and in 2021, he was ordered not to interfere with witnesses.[17]
[14] FBC News, Vakarisi denies assault charges in High Court, 23 July 2020; FBC News, Jone Vakarisi back in custody, 11 October 2021.
[15] Fiji Sun, Tudravu: Lasting Plan Best, Serevi roped in, 16 April 2021; Fiji Sun, Shine a light, Tiktok adds fuel to Nabua Brawl, 17 April 2021; Fiji village, Police crack down on Jone Vakarisi and his gang in Mead Road Housing in Nabua, 7 August 2018.
[16] FBC News, Topline Warriors dedicate win to evicted residents, 9 September 2023.
[17] FBC News, Jone Vakarisi back in custody, 11 October 2021.
Information indicates ‘there were serious allegations of the group’s involvement in drug related activities in the area’[18] and that there was said to have been a crackdown on them in August 2018. At this time, it was reported that many people connected with the men charged as a part of that crackdown ‘came to the Suva house yesterday and were swearing at members of the public. Some of the accused persons were also swearing at the police officers’.[19]
[18] Fijivillage, Police crack down on Jone Vakarisi and his gang in Mead Road Housing in Nabua, 7 August 2018.
[19] Fijivillage, Police crack down on Jone Vakarisi and his gang in Mead Road Housing in Nabua, 7 August 2018.
Reporting from 2020, sets out that Jone Vakarisi was in that year convicted of criminal intimidation, and that others were acquitted. He served 1 year and 10 months on remand, before being released early.[20] The offenders had been charged with one count of going equipped for a property offence, seven counts of criminal intimidation, one count of damaging property, and one count of resisting arrest.[21]
[20] Fiji Village, Jone Vakarisi sentenced to 24 months and gets early release, 21 May 2020.
[21] Fiji Sun, Vakarisi convicted, eight co-accused acquitted in Nabua police assault case, 21 May 2020.
Country information indicates that drug crime in Fiji remains a serious problem.[22] One recent article from January 2024 reflects this, noting that the value of a recent seizure was FJ$2 billion and that traditional leaders have ‘joined the chorus calling for action on Fiji’s drug crisis’.[23]
Police corruption
[22] FBC News, Two charged for unlawful possession of drugs, 10 February 20203; Global Organised Crime Index, 2023, Fiji; RNZ, Fijian police officer facing charges following 3-tonne meth bust, 18 January 2024.
[23] RNZ, Fijian police officer facing charges following 3-tonne meth bust, 18 January 2024.
The Fiji Police Force (FPF) is generally considered a professional, though under-resourced organisation.[24]
[24] Fiji Country Security Report, The Overseas Security Advisory Council US Department of State, 14 June 2023.
The DFAT Report 2022, notes recent improvements in training and accountability, and that ‘victims of crime can be expected fair treatment with dignity’.[25] On the topic of corruption, DFAT states ‘[c]orruption 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.’[26] DFAT concludes that the FPF ‘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.’[27]
[25] DFAT Report 2022, p22.
[26] DFAT Report 2022, p23.
[27] DFAT Report 2022, p23.
Country information more specifically addressed to the issues prevalent in the illegal drug scene, however, indicates police corruption and violence remain serious issues.[28] The following are excerpts from the Global Organised Crime Index:
Some low-level officials are involved in facilitating human trafficking, primarily by preventing investigations. The increased trafficking of cocaine and methamphetamine through Fiji is also a contributing factor to police corruption. However, state actors only facilitate illicit markets, rather than taking an active part in criminal operations.[29]
The Fiji Police Force is severely under re-sourced … Fiji primarily relies on international partners to obtain intelligence on transnational organised crime. However, efforts continue to tackle criminal networks and drug trafficking regionally. Police officers and military officials who commit abuses are rarely brought to justice, and those convicted of crimes are frequently pardoned or have their convictions overturned on appeal. The police force is perceived to be corrupt by a significant portion of the Fijian population. Moreover, torture and beatings by police in Fiji remain a serious issue.[30]
Victims of crime in Fiji lack adequate assistance despite the creation of units aimed at providing support and assistance to victims and witnesses…[31]
[28] Freedom in the World 2023 – Fiji, Freedom House, 31 August 2023; Amnesty International Report 2022/23: the state of the world’s human rights, Amnesty International, 27 March 2023, pp164; DFAT Report, p23; Fiji Country Security Report, The Overseas Security Advisory Council US Department of State, 14 June 2023; FBC News, Two police officers charged for drug related offences, 1 November 2019.
[29] Global Organised Crime Index, 2023, Fiji, p5
[30] Global Organised Crime Index, 2023, Fiji, p5.
[31] Global Organised Crime Index, 2023, Fiji, p6.
On police corruption, the 2019 in-depth VICE World News report noted the following:
[They] spoke to at least half a dozen people with various connections to the drug scene who suggested the same thing: that narco-corruption has infiltrated some of Fiji’s highest institutions, and that without the complicity of those in positions of power, the multibillion-dollar meth trade wouldn’t be able to function as it does.
In his February report, Sousa Santos noted that narco-corruption in the Pacific has undermined the rule of law and compromised individuals across a number of key agencies, including customs, police and immigration. A worrying potential outcome of that is what he described to VICE World News as a ‘shadow power structure’ where drug bosses and syndicates have more money and influence than traditional institutions and are thus able to exert their dominion over the people.
‘If action is not taken immediately, and appropriately, then what we are looking at over the next several years is some Pacific Island countries becoming semi-narco states… areas which are under the control of these indigenous criminal syndicates’, he said.
…
Of all the various arms of Fiji’s public and private sectors accused of involvement or complicity in the drug trade, the police were named most often … In August, Police Commissioner Sitiveni Qiliho publicly admitted that ‘there are rogue officers within the force [who] are being dealt with’.[32]
[32] G. Butler, Vice News, Meth is Turning Fiji From a Tropical Paradise Into a Narco’s Playground, 15 September 2022.
In January 2024, it was reported that a police officer is facing charges for stealing meth that was confiscated in a recent bust,[33] and in February 2024, there were calls for the government to ‘seriously look into the issue of corrupt police officers and officers in other departments’ to tackle the hard drugs problem in Fiji, with there being reliable reports police are tipping off drug dealers ahead of raids.[34]
Experiences of Indo-Fijians
[33] RNZ, Fijian police officer facing charges following 3-tonne meth bust, 18 January 2024.
[34] Fiji Village, High level investigations into hard drugs needed, look at the corrupt officers – Naidu, 1 February 2024.
The two main ethnic groups in Fiji are the Melanesian iTaukei and Indo-Fijians, descendants of colonial sugar cane workers. DFAT reports that about a third of the population are Indo-Fijian. Low level social discrimination continues, with the use of racist stereotypes common.[35] The Government has taken steps to de-segregate the community in day-to-day life and Diwali is a national public holiday. The 2013 Constitution prohibits discrimination based on race and applies to all Fijians.[36]
[35] DFAT Report 2022, p.11.
[36] DFAT Report 2022, p.11.
DFAT reports that there ‘have been instances of tensions between indigenous Fijians and Indo-Fijians and it is not clear whether these are motivated by religion, race or both. A series of vandalism and robbery events at Hindu temples was recorded in 2018 and received significant media attention. According to media reports, police took the incidents seriously and political figures condemned the attacks. The motive for the crimes is not clear – it may have been opportunistic, or factionally or racially motivated’.[37]
[37] DFAT Report 2022, p.13.
Non-Indigenous Fijians are subject to disadvantage in relation to land ownership. While the Constitution prohibits discrimination on the basis of race, it also protects the communal land rights of indigenous Fijians (iTaukei) and Rotumans.[38] Because of this, most Indo-Fijians are unable to buy land outright and must lease it.
[38] 'Constitution of the Republic of Fiji (Promulgation) Decree 2013 (Decree No. 24 of 2013)', Government of Fiji Gazette, Government of Fiji, 6 September 2013, (in force 6 September 2013), sections 26 & 28, in Government of Fiji Gazette. Extraordinary, Vol.14 No.80, 6 September 2013, pp. 2747-2840, at 2768 & 2770.
DFAT sets out that land rights are controversial in Fiji, and that:
About 90 per cent of land is owned by traditional owners, with 6 per cent government-owned and 3 per cent freehold land. iTaukei owners often lease land to others… [Agricultural] leases are for a period of at least two years but land is usually leased for 30 years. Residential leases are longer and leases can be bought and sold.
Both iTaukei and Indo-Fijians lease land from traditional owners but it cannot be bought or sold, only leased.[39]
[39] DFAT Report 2022, p.9.
Furthermore, DFAT notes that ‘[w]hile family and kinship ties are less pronounced in Indo-Fijian families, … they still exist; extended family groups, and associated welfare support, may also be present among Indo-Fijian families.[40]
Findings of fact
[40] DFAT Report 2022, p.9.
The Tribunal accepts the First Applicant was a long-time employee and [Position 1] of [Club 1]. His oral evidence in this regard was consistent with his children’s birth certificates that listed the club as his place of employment, and with pay evidence provided to the Tribunal after the hearing. The Tribunal also accepts the First Applicant’s evidence regarding his experiences with drug dealers/indigenous gangs and corrupt police in Fiji while he was [Position 1] of the club. His evidence on these matters was internally coherent and compelling, and it was also consistent with country evidence that indicates there was a growth in drug trafficking and use throughout his time as [Position 1] of the nightclub.
While the Applicant did not set out these aspects of his claims when making his application, he did describe the pressure he was under in broad brushstrokes, and the Tribunal accepts he withheld details relating to drugs and organised crime because he was fearful about raising these matters. While that fear was misplaced it is understandable that someone without representation and seeking permission to remain in a country might be anxious about any association between them and criminal organisations being known to the authorities of that country.
The Tribunal notes that the First Applicant gave as a name of a gang operative in the area, the Nabua Topline Warriors. Country information indicates this is the name of the local rugby team. The Tribunal, noting the country information cited above about gangs in the area being associated with the name Nabua, Topline, or Nabua Topline considers that the First Applicant’s evidence of the name of the gang including the word Warrior was in error owing to the fact that this would be a very familiar name to locals and the names are very similar. Information indicates, also, that there is indeed a close connection between the club and the gang and housing settlement area it is associated with.[41] The Tribunal does not consider that the Applicant’s evidence on this matter detracts from his credibility regarding his evidence that gang members were operating to target his employees and customers, and that he came to their adverse attention by not joining them and by taking steps to stop them.
[41] FBC News, Topline Warriors dedicate win to evicted residents, 9 September 2023; see also, for example @nabuatopline on TikTok.

The Tribunal accepts that the First Applicant did not tell his wife the details of the organised crime difficulties he was facing at work, and the reason why he did not do this. She was at home caring for their two small children, often alone and at night, and already experiencing significant stress and fear on account of the breakdown in the relationship between them and the indigenous landowners, the tenuous subsequent private rental situation they then found themselves in, the fact that there had been attempted break ins at their homes and her general understanding that her husband was experiencing significant difficulties at work.
In summary, the Tribunal accepts:
- that the First Applicant was a [Position 1] of a bar and nightclub in [City 1];
- that the bar was targeted and infiltrated by gang members pushing drugs and seeking to influence the staff of the club, particularly the bouncers, to permit or to engage in criminal activities;
- that the First Applicant was known by the criminal gang members on account both of his long-term association with the club and his role as its [Position 1] during the period in question, and because of his family’s long-term connection to a local indigenous settlement where he had lived for many years;
- that the family faced insecure housing in the settlement and private rental market, and that they felt the First Applicant could not afford to lose his job;
- that members of drug gangs attempted to recruit the First Applicant to the illegal drug trade;
- that the First Applicant spoke with police officers about his concern and provided them with the names of people distributing drugs in his club; and
- that the First Applicant was threatened by gang members/associates and that he feared he and his family would be targeted for serious harm if he remained in Fiji.
Refugee criteria
Fear of harm from criminal gang members in Fiji
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a).
The Tribunal considers that the harm feared by the First Applicant from the criminal gang members is not for one of the reasons mentioned in s 5J(1)(a). While the Tribunal appreciates that there is a racial aspect to the First Applicant’s and his family’s treatment and the concern that he would be regarded as an informant with respect to illegal drug activity, the Tribunal finds that these aspects of his profile would heighten the risk of harm to the Applicants, rather than be the essential and significant reasons for any harm faced. The Tribunal finds that the primary reason for the harm feared in Fiji would be because criminal actors would seek to punish him more generally for his actual and perceived actions against them, stemming from his refusal to become involved, his resistance to their operations in his club and his having raised concerns about those operations with the police.
For the above reasons, the Tribunal finds that the Applicants do not satisfy s 5J(1)(a) with respect to the First Applicant’s principal fear of facing harm at the hands of criminals, and that they therefore do not have a well-founded fear of persecution from drug dealers or gang members in Fiji.
Fear of harm on account of their ethnicity
The Applicant family’s experiences of housing insecurity, discrimination and verbal abuse because of their Indo-Fijian ethnicity is consistent with country information. The Tribunal accepts that they have in the past experienced racial discrimination and that they have been exploited by indigenous landowners. The Tribunal finds that they would continue to face discrimination in Fiji on account of their ethnicity but does not accept the harm they would face for this reason alone would amount to serious harm. Though not without difficulty, the First and Second Applicants have previously found work and housing in Fiji and the Tribunal finds that they would do so again, and that they would continue to also have the support of family members based abroad as well as those still in-country. While they would be financially worse off in Fiji than they have been in Australia, they would be able to subsist and would not otherwise experience serious harm for reasons of economic hardship. The Tribunal also does not accept that future experiences of being on the receiving end of derogatory ethnic slurs, or being told they do not belong, would amount to serious harm.
For the above reasons, and with respect to claims about their ethnicity, the Tribunal finds that the Applicants do not satisfy s 5J(4)(b) and are not owed protection obligations under s 36(2)(a) of the Act.
Complementary protection criteria
Having considered the Applicants’ claims against the refugee provisions, the Tribunal now considers their claims against the complementary protection provisions.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]).
As noted above, a ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 279.
The Tribunal finds that the First Applicant would have been well known in the nightclub scene in Fiji, having had a long association with [Club 1], most recently as its [Position 1] of a number of years. The Tribunal finds that the First Applicant’s profile among indigenous gang members would have been heightened also because of his Indo-Fijian family’s long and increasingly acrimonious residency in an indigenous settlement.
The Tribunal accepts that the First Applicant was targeted by members of the gang community who were familiar with him through both his work and his home environments. They sought to bring him on board with the criminal endeavour, exposing him to information about their methods, and to intimidate him by having him witness an incident of significant harm carried out on another person. The Tribunal accepts that the First Applicant was troubled by the rise in drug dealing at the club, and that he sought to limit the activity first by seeking to have his bouncers stamp it out and, when this failed, by raising the matter with the police. The Tribunal accepts that the pressure on the First Applicant and his family was sustained and grew throughout 2019, before it became too great and prompted him to flee the country in early 2020.
Country information indicates that drug and gang activity in Fiji was increasing at the time of the First Applicant’s employment as [Position 1] of the club, and that they continue to operate in the area. Having considered the Applicants’ evidence and country information, the Tribunal accepts that were the First Applicant returned to Fiji, there is a real risk he would be identified by persons from or connected to indigenous gangs in the area and that he could be targeted for retributive harm because of his knowledge of the gang’s operations and/or his known or perceived opposition to the gangs and/or drugs. The Tribunal does not think this risk is high, but it is satisfied that it is real.
Per s 36(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.
The First Applicant fears that he will be physically assaulted or killed if returned to Fiji. He also fears that his family will be harmed. Having considered the Applicant’s evidence and country information, the Tribunal finds that gang culture is violent and that the drug industry is a lucrative one for them. The Tribunal is satisfied that criminal gangs in Fiji carry out acts of serious violence on persons they regard as posing a risk to them or as having done wrong by them, and the Tribunal accepts that if the First Applicant was returned to Fiji, the risk he faces of being arbitrarily deprived of his life and/or of being subjected to cruel or inhuman treatment or punishment.
While the Tribunal accepts that the Applicant’s family was threatened with harm, it considers that this was done to intimidate and scare the Applicant. In the absence of country information indicating the broader targeting of the family members of people that are offside with criminal gangs, and in light of the passage of time since the threats were made, the Tribunal finds a risk of direct physical harm to the Second – Fourth Applicants to be remote. The Tribunal accepts, however, that intentional physical harm to the First Applicant would harm both him and his family members, causing them to also suffer significant harm, specifically cruel or inhuman treatment or punishment, because of the severe mental pain and suffering they would experience.
An applicant is taken not to face a real risk of significant harm if the Minister is satisfied it would be reasonable for them to relocate to an area of the country where there would not be a real risk of significant harm, per s 36(2B)(a). The Tribunal finds that the risk faced by the First Applicant extends throughout Fiji. Fiji is a small nation of about 940,000 people. Eighty-seven per cent of the population is spread over the two largest island, with the remaining population being thinly spread over a further 100 islands.[42] While the Tribunal does not accept the First Applicant’s return to Fiji would be immediately known among his former community and those who may wish to harm him, it finds that it would become known, even if he attempted to live in another area or another of the country’s inhabited islands.
[42] DFAT Country Information Report Fiji’, Department of Foreign Affairs and Trade, 20 May 2022, (DFAT Report 2022), p.6.; Fiji Population 2024 (Live) (worldpopulationreview.com); Atlas of humanity, Discovering the cultural diversity, Fiji Islands,
On relocation and policing, DFAT notes the following:
- Policing in outer islands and more remote places is more difficult because of the greater influence that the chief-based hierarchy has in the outer regions[43]; and
- Fiji is geographically small and land is held tightly in kin groups, which limits internal relocation in practice. Even Suva, the largest city in Fiji, has only a small suburbia and few relocation options. Movement to another island is possible but in practice most relocation is to urban centres from other islands.[44]
[43] DFAT Report 2022, p.23.
[44] DFAT Report 2022, p.25.
Noting this information and the fact that country information indicates Indo Fijians reside primarily on the two main islands, with indigenous Fijians living on the smaller islands,[45] and putting aside practical issues such as whether they be welcome, the Tribunal considers that an Indo-Fijian family attempting to relocate to a remote island with an indigenous population would be highly conspicuous.
[45] Encylcopedia Britannica, Fiji – People – Settlement Patterns; Countries and their Cultures - Indo-Fijians; Minority Rights Group, Indo-Fijians in the Fiji Islands, 2017.
The Tribunal finds that there is no part of Fiji where there would not be a real risk that the Applicant would suffer significant harm. The Tribunal makes this finding in light of the above country information about the size and composition of Fiji and the importance of kinship ties, and on the basis of the First Applicant’s long association with the bar scene in Fiji and because it considers the gangs operating in that space would be well connected to indigenous communities, including those on other islands.
An applicant is also taken not to be at a real risk of harm where they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm: s 36(2B)(b). The Applicant gave evidence that he raised concerns about drugs with the police, and that they were ineffective in stopping the trade within his club or by those involved in selling drugs. His experiences are consistent with country information that indicates police corruption in this space is a serious and ongoing issue. The Tribunal is not satisfied that the police force would offer the First Applicant a level of protection that would reduce the risk of significant harm that he faces to something less than a real one.[46] Even if there was sufficient will, and country information does not support that conclusion, the Tribunal further notes that criminal violence by gangs can be opportunistic, extreme and often carried out in complete defiance of law and order measures, making it difficult for those measures, and the persons charged with enforcing them, to reduce a risk of harm to someone targeted by them to less than a real one.
[46] MIAC v MZYYL (2012) 207 FCR 211 at [36].
Finally, under s 36(2B)(c) there is taken not to be a real risk that the Applicant will suffer significant harm if the risk is one faced by the population of Fiji generally, and is not faced by the Applicant personally. The Tribunal is satisfied the risk of harm from criminals/gang members is not one faced by the population of Fiji generally, and that it is faced by the Applicants personally.
The Tribunal has substantial grounds for believing that, as a necessary and foreseeable consequence of the First Applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm; Australia therefore has protection obligations, per s 36(2)(aa).
CONCLUSION
For the reasons given above the Tribunal is satisfied that the First Applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(aa).
Further, the Tribunal is satisfied that the First Applicant’s wife and two minor children are members of the same family unit as the First Applicant for the purposes of s 36(2)(c)(i). As such, their applications depend on the outcome of the First Applicant’s application. It follows that the other applicants will be entitled to a protection visa provided the criterion in s 36(2)(c)(ii) and the remaining criteria for the visa are met.
Section 36(3) of the Act provides that Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail themselves of a right to enter and reside in a third country. In this case, there is no evidence to suggest that the applicants have any right to enter and reside in any other country and the Tribunal finds that s 36(3) does not apply in the circumstances of this case.
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i) the first named applicant satisfies s 36(2)(aa) of the Migration Act; and
(ii)the other applicants satisfy s 36(2)(c)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Amy Faram
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 2697

11 April 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

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Natural Justice