2010877 (Refugee)

The case concerned an application for a protection visa by a family from Fiji. The First Applicant, an Indo-Fijian, alleged he experienced racial discrimination, insults, and physical assaults at his workplace, a club dominated by indigenous Fijians. He also claimed his family faced harassment at their home in a squatter settlement and could not afford to rent proper land due to their ethnicity. The dispute before the Tribunal was whether Australia had protection obligations towards the applicants under s 36 of the Migration Act 1958 (Cth) and cl 866.221 of Schedule 2 to the Regulations, due to the risks posed by gangs and corrupt police, or the family's ethnicity.

The Tribunal was required to determine if the First Applicant had a well-founded fear of persecution for reasons of race, or if there were substantial grounds for believing that, as a necessary and foreseeable consequence of removal from Australia, the applicants would suffer significant harm. This involved assessing whether the alleged harm constituted torture, or cruel, inhuman, or degrading treatment or punishment, and whether effective protection measures were available in Fiji. The Tribunal also considered whether relocation to another area within Fiji would be reasonable, and whether the applicants were members of a particular social group.

The Tribunal found that the First Applicant had experienced racial discrimination and physical assaults, and that his family had been harassed. It noted that the First Applicant could not return to his previous workplace and that his family could not afford suitable accommodation due to their ethnicity. The Tribunal concluded that the decision under review should be remitted for reconsideration, directing that the First Applicant satisfied s 36(2)(aa) of the Migration Act, and the other applicants satisfied s 36(2)(c)(i) on the basis of their membership in the same family unit. The Tribunal also determined that s 36(3) of the Act did not apply, as there was no evidence suggesting the applicants had a right to enter and reside in any other country.