2011343 (Refugee) - [2025] ARTA 1166

2011343 (REFUGEE) [2025] ARTA 1166 (24 JANUARY 2025)
DECISION AND

REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Numbers: 2011343
1931754

Tribunal:General Member R Johnston
Date:24 January 2025

Place:Sydney
Decision:The Tribunal affirms the decisions under review.

Statement made on 24 January 2025 at 10:06am
CATCHWORDS
REFUGEE – protection visa – Fiji – fear of harm from former employer – disagreements and altercations with senior managers – criticism of management in work email in breach of HR policy – official investigation, disciplinary inquiry and termination of employment – psychological abuse – reported suspected workplace theft to official agency and public official – fear of criminal charges and lack of work opportunities – no mental health treatment or counselling – relationship in Australia started after applications for review made – partner unable to be added to application, but hearings and decision records combined – partner’s claims of cost of living, lack of work opportunities and gender inequality – straightforward and reliable witnesses – no contact from employer while in Australia – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65
Migration Regulation 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

These are two applications for review before the Tribunal. They have been heard and decided together, with the prior written consent of both applicants, as the applicants are spouses. Both applicants claim to be nationals of Fiji.
The first named applicant seeks review of a decision made by a delegate of the Minister for Home Affairs on 30 June 2020 to refuse to grant him a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The first named applicant applied for the visa on 21 December 2017.
The second named applicant seeks review of a decision made by a delegate of the Minister for Home Affairs on 30 October 2019 to refuse to grant her a protection visa under s 65 of the Act. The second named applicant applied for the visa on 22 April 2019.
The delegate refused to grant the visas on the basis that the applicants are not persons in respect of whom Australia has protection obligations.
On 8 July 2020 the first named applicant lodged an application for review of the delegate’s refusal decision with the former Administrative Appeals Tribunal (AAT). On 8 November 2019 the second named applicant lodged an application for review of the delegate’s refusal decision with the AAT.
On 14 October 2024, the AAT became the Administrative Review Tribunal (Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
CLAIMS AND EVIDENCE
Claims and evidence before the Department
Protection visa application – first named applicant
The first named applicant lodged a protection visa application on 21 December 2017. In that application he provided the following:
·     He was born in [Year] in Suva, Fiji. He is a Fiji Islander and a [Christian denomination]. He speaks English and Fijian.
·     He married in September 1993 and divorced in 2015. He has [children] in Fiji. His brother is an Australian citizen.
·     He has travelled to [Country 1] in 2013 for an international [work-related] workshop, as well as [Countries 2-4] for workshops and [occupation 1 events].
·     He lived in Suva between [Birth] and November 2017 and [Town 2] between November 2017 and his departure to Australia.
·     He completed his primary, middle, and high school in Suva, Fiji, as well as his post graduate certificates.
·     He worked as [an occupation 2] in Suva prior to 1996. From June 1997 onwards he worked in [Employer 1] as [an occupation 1] in [job task 1] in Suva.
In a statement attached to his protection visa application form, the first named applicant makes the following claims:
·     He left the country feeling threatened by the management that he is being labelled trying to destabilise the [Employer 1]. On [date] July 2017 he circulated an email to his fellow [occupation 1]s sharing his disappointment at how management have been making decisions on a few issues and especially highlighting the stolen money from the [Employer 1] safe which only 3 or 4 people had access to.
·     The ACEO [Ms A] in her letter dated [date] July was of the view that these allegations are very serious because they threaten to destabilise the [Employer 1] and its management as well as undermine the procedures and processes that are set in place for employees to raise these types of issues. The management treated these allegations very seriously and found his behaviour breached the [Employer 1]’s HR policy. As a result he was sent on paid leave for two weeks while the matter was being investigated.
·     Two weeks later on [date] July he received a letter from the ACEO that based on the investigations he is being charged with breaching the [Employer 1] [HR Policy] because he sent an email to all [occupation 1]s speaking out against the [Employer 1], the management and its procedures and policies which is not the proper manner nor proper forum within which to raise grievances as set out under process [of the] HR [Policy] and breaching [a section] of [the HR Policy] which lists insubordination as a major offence.
·     He was to face the Disciplinary Enquiry on [date] August but he requested for a change of date via email. A few days later after the Disciplinary Enquiry he was verbally informed on three separate occasions by three of the panellists that he had a no case to answer and was not guilty of any charge. The fourth panellist that sat on the panel is the legal officer [Ms B].
·     On [date] August he received another letter of extended paid leave from the ACEO and stating that his case is currently awaiting finalisation by [Employer 1] legal advisors. Under the [HR Policy], after 7 days of the Disciplinary Enquiry the CEO must inform the employee by circular the outcome of the enquiry. [In] July his leave was extended again with the same reason pending legal opinion.
·     [In] September his leave was extended again with the reason “further to your letter dated [date] August 2017, you are hereby notified that your leave with pay has been extended to [date] October 2017 at which time we envisage that a decision will be reached on the outcome of your case”. When he asked the ACEO what the outcome of the legal advisors was, she again issued another letter on that same date [in] September extending his leave to [date] October by which date they expected to finalise the decision in his case with their legal advisors. On [date] October an extended paid leave letter was issued again with legal advice still pending.
·     He learnt of his termination when he did not receive his salary. When he went to enquire at his HQ, he was then given his termination letter dated [date] October. He knew something was not right because on the [day] he was just emailing the pay clerk on adjustment of his salaries regarding repayments to his credit union which she responded confirming the adjustments. He felt insecure and threatened by the behaviour of the management and suspected dirty play against him.
·     If he returns to Fiji he will be persecuted and criminally charged for the missing [job task 1] allowance and Winston money contributed by staff stolen from the safe. He believes being terminated from his employment is to keep him away from the [Employer 1] property and deny him contracts and connections to the organisations. By doing that he is being starved of information which gives the management ([Mr C], [Mr D] and ACEO) the edge to plot a case against him.
·     The case has been reported to the police but today he is not sure of the progress of the investigation. He fears the information can be manipulated against him because [Mr C] is a very powerful person. For example last year during [an event] at [a Venue], [named organisation] CEO [Mr D], [named official], [named person] ([Employer 1] staff), [named official] were [caught] [deleted] in one room at the [venue]. [Additional information].
·     The TC Winston money was in the safe when there was no PA for the CEO position and the CEO position was also vacant. [Mr C] was leading the [Employer 1] from his office as [Position 2]. [Mr D] was often seen using the CEO’s office at [Location] even though he was CEO [named Organisation]. All communication to the hierarchy was through [Ms A] and [Mr D]. These three know something about the missing money and the story can be plotted against him.
·     When [Mr C] became [Position 3], he had his agendas of what he wanted of how business will be operated at [Employer 1]. He wanted to have a working environment that is under threat and people working under fear. His leadership style is commanding and orders are directed without questions. He takes advantage of his position [and] he abuses this authority. He terminated nearly [number] staff at [an organisation] for some reason and that reputation alone has created fear. Even [Mr D] worships him like a god and whatever ideology and agendas is put forward by [Mr C] is law of the day.
·     After his argument with [Mr C] in 2013 he was under scrutiny by the management and he felt the psychological abuse affected him. He was affected with his inner thoughts and feelings as they exerted control of his life. He felt uncertain of the world around him and felt unsafe in his own home. Most times he’s not home and intimately lost all feelings towards his wife. As a result his life was ruining and he was losing his wife without noticing it. By September 2014 he failed his marriage in separation and divorced a year later where he lost his wife and children, house and car and everything he had except the job. Holding onto the job was the one thing he had and the psychological impact continued.
·     In February 2015 he enrolled into the post graduate [certificate] at [university] studying in a unit called [Unit name]. It was from this unit that he came to understand what he was going through psychological abuse. Counselling was the aid of help which he referred to heal the feelings and psychological abuse he was going through.
·     He reported the nepotism, corruption, abuse of office and related issues going on at work to [Official agency] via email to a complaint officer. For the issue of theft, he met with [Official 1] in person at a [location] in [Town 2] reporting of his unfair termination and the missing Winston money. He advised him to follow the appeal process but on the missing money, he acquired a written note from him reporting the missing money. Today there is still no response from [Official agency] and the Minister’s office on these issues.
·     In 2016 his elder children moved in and stayed with his parents in [Suburb]. When he was sent on leave and under investigation in June, he asked his children to move back with their mum because he was insecure and felt threatened. A week after collecting his termination letter he moved to [Town 2] with his parents and stayed there until he left the country. Prior to his leaving the country he hand-delivered his appeal letter following the appeal process which states that he could appeal within 14 days after his termination letter. When submitting his appeal letter he had the ACEO, CFO, AHRM and legal officer endorse his copy of the appeal to prove that they have received his appeal. He was curious that they emailed later asking for his residential address to deliver the letter acknowledging his appeal letter. Why he is suspicious is that the acknowledgement has been emailed to him and yet they still wanted to know about his physical location.
·     [Mr C] is a murderer and is still there working as [Position 2]. The judicial system is in name only, therefore if powerful people like him want him persecuted and to be criminally charged, there is no hope for a fair trial. The mistreatment and harm will be affected to him when he is imprisoned. Prisoners have died in the past and he could be another victim and silenced for good.
·     He raised his concerns to [Official agency] and even [an official] of corruption, nepotism and other issues. To date there is no positive feedback forthcoming from them. Police will do an investigation of the missing money which he is sure is being trumped against him. Once he enters prison that is where [Mr C] will exercise his authority to harm him.
·     There is nowhere in Fiji that he can relocate to that could save him from being criminally charged. Police stations and posts are all over the country and he will always be identified if being pursued by the police or any disciplinary institutions.
The first named applicant stated that he could not provide [evidence] of his claim related to [deleted] at [venue] but there is [evidence] of it.
The first named applicant provided the following supporting documents with his protection visa application:
·     Copies of his identity documents.
·     Background information on the [Employer 1].
·     The management, policies, and decision-making occurring within the [Employer 1]. It is stated in this document that [Mr C] was [Position 3] in 2016, still dictated the operations of [Employer 1] in 2017 despite being [in another organisation], and the country suffered from the Cyclone Winston in 2016. The applicant notes in this document that in 2013 he had disagreements in a management meeting with [Mr C] on some issues and he was threatened by [Mr D] that the Board and management would not tolerate people like him and he was under scrutiny. He states in 2017 an in-house union was formed and that he raised his disagreement with [Mr C] about his attendance at a meeting, leading [Mr C] to label him as a unionist. He also claims he was threatened by [Mr C] when he raised issues in 2017 about how the recruit selection process and other issues were being handled. He claims the ACEO and CFO tried to remove him from the head of recruit projects because he was not following instructions set by [Mr C]. He claims the only way out of the situation was to kick him out of the system.
·     Emails from early January 2017-February 2017 between the first named applicant, his supervisor, the Acting CEO of [Employer 1] to the applicant, and other staff at [Employer 1] concerning [job task 1], approvals, issues occurring in the applicant’s role, issues directed at the applicant’s [job task 1] and areas for improvement in his role, and reports on [information about specified people].
·     Documentation including a written statement, undated, indicating an allowance of $[Amount] for [a work-related purpose] was left in the safe [in] 2017 as per breakdown which was left inside the envelope and upon collecting the money this morning ([date] June 2017), [another person] and himself counted it and found out that it was short by $[amount], therefore they cannot proceed with the [work-related activity].
·     An email of [date] June from the first named applicant explaining [Ms I] informed him that she had noticed irregularities on the brown envelope containing the said amount and extra stapling pins stapled on the envelope as compared to her initial stapling when she issued the sum of money for safe keeping and that the envelope was disrupted with more foldings as if it was shoved by force or hurry. It is noted if there are any discrepancies the [work-related activity] is postponed until the case is investigated. It is stated the matter is being reported as the money was lying in the safe since last week and only authorities to the safe would have access to the money and he seeks advice of the above because the money is missing and if no action is taken, he will report it to the police because [Ms I] will not reimburse the lost amount.
·     An email of [date] June reports the ACEO [Ms A] states to please conduct a thorough investigation immediately and provide a report tomorrow morning.
·     An email of [date] June from the first named applicant indicates an internal investigation is occurring and the matter will be reported to the police if the internal investigator cannot find a conclusion. A further email indicates the first named applicant has appointed two other staff to conduct the investigation.
·     An email of [date] June where the applicant reported to [Employer 1] staff that another staff member was sent on suspension without pay, with reasons known to the ACEO and HR department, and that the issue was reported to police and they are waiting for when their statements will be recorded. In that correspondence he raised concerns about the suspension of the other staff member. He indicates in that email that the people who should be taken to task are the people accessing the safe and accessing the PA’s office and the police should round up these people and that they will lodge a police complaint and ensure the police interview those people. In the June [date] email the first named applicant also raised that donations from respective staff towards the Winston victims kept in the safe were also missing and that it calls for police investigation and [Official agency] investigation.
·     Email of [date] July 2017 by the first named applicant to a number of [Employer 1] [work locations] and staff about a range of issues, union issues, and an email received by another staff member about the missing money. The first named applicant ends the email by seeking they unite to demand their rights as workers to overcome the current environment.
·     Letter of [date] July 2017 to the first named applicant by the Acting CEO of [Employer 1] advising him that [Employer 1] is undertaking an internal investigation into the events of [date] July where it is alleged he circulated an email in his capacity as [Occupation 1], to all [occupation 1]s and [employees] in charge of all [work locations] speaking out against [Employer 1] and its management and its processes and practices in contravention of [Employer 1]’s Human Resources Policy.
·     Investigation report of [Employer 1] concluding the first named applicant had breached [Employer 1] Code of Conduct and the Human Resources Policy and Procedures classified as a Major Offence, with a recommendation that he be transferred to outer [work location] [and] also be given a written warning letter. It contains a handwritten note of [date] July 2017 by the ACEO below the recommendation relating to charging the first named applicant with the above charges on [date] July 2017 or [date] August 2017 when the panel is together.
·     Letter from [Employer 1] ACEO of [date] July 2017 to the first named applicant advising him of the incident report and inviting him to a disciplinary hearing on [date] August 2017.
·     Letter of [date] August 2017 from [Employer 1] ACEO to the first named applicant advising him his leave without pay has been extended until [date] August 2017. Further letters of [date] August 2017 and [September] 2017 confirm his leave has been extended until [September] 2017 and [date] October 2017. The letter of [September] 2017 advises the first named applicant that by [date] October 2017 it is expected the decision in his case will be finalised and the legal advisors will advise him of the outcome of his case.
·     Letter of [date] October 2017 by the ACEO to the first named applicant advising him that following a disciplinary inquiry held on [date] August 2017 it has been determined the charges against him have been proven and that the charges are breaching [Employer 1] Human Resources Policy when he failed to follow the proper procedure to raise employee grievances but instead emailed other [occupation 1]s with his concerns. It was found this was in breach of [his] employment contract. It is noted they have taken into consideration the matters arising in the investigation, his statement, and the evidence and mitigating circumstances and it has been found given the serious nature of the charges and his conduct he is guilty of gross misconduct and a result his employment is summarily terminated at the date of the letter.
·     Emails from the first named applicant with [Employer 1] about deductions from his pay.
·     Email of [date] August 2017 from the first named applicant to [Official agency] regarding the missing [job task 1] allowance money and how it was handled by [Employer 1], missing Winston money and how it was discovered missing and who had access to the safe, including a statement that that ACEO was fond of working late, staff being approved to leave work to [do something], the appointment of the ACEO as Manager HR and Corporate affairs without advertisement, formation of the in-house union, issues with job advertisements going up when someone is on leave, [Employer 1] recruitment issues, and abuse of power relating to his email and forced period of leave.
·     Email of [date] November 2017 from the first named applicant to [Official 1] outlining his concerns about missing money from the [Employer 1] safe and that he suspects money was stolen from the safe by people who had access to it and even [Position 3, Mr D] whom he assumes is aware of his email to all heads of [work locations] around Fiji sharing his opinions about the missing money.
·     Appeal letter from the first named applicant of [date] October 2017 to the ACEO of [Employer 1]. In this letter the first named applicant sets out issues with the [Employer 1] handling of his investigation and termination, the actual penalty and its harshness.
·     Email from the [Employer 1] HR department of [date] November 2017 attaching a response to the first named applicant’s appeal letter of [date] October 2017 and seeking his forwarding address to send the original of the letter.
·     Reference letters for the applicant of 29 January 2015 and 12 November 2014.
·     Fijian Birth Certificates for the first named applicant and each of his [children].
·     [University] Diploma in [Subject].
Protection visa application – second named applicant

The second named applicant lodged a protection visa application on 22 April 2019. In that application she provided the following:
·     She was born in [Year] in [Fiji]. She has never married. She is a Christian.
·     She has sisters in Fiji who reside in [Towns 3, 4] and Suva.
·     She lived in Suva between [Year] and 2014 and in [Town 3] between 2014 and April 2019.
·     She completed primary school between [Year] and [Year] and one year of high school in [Year].
·     Whilst in Fiji she worked in babysitting and helping with household chores. She obtained financial support from her sister.
The second named applicant makes the following claims in her protection visa application form:
·     She has been living with her [sister] most of her life since both of her parents passed away. Her sister has been tending to her every need. She is the [birth order] of her siblings, unemployed and mostly relying on her siblings since looking for work in Fiji is hard and complicated. The cost of living is high and everything is expensive.
·     She helps her sister in the household chores and babysitting her kids most of the time. Since she has the opportunity to come to Australia and her visa was granted, she has made a bold decision to stay and apply for a protection visa. Here in Australia work is not hard and there is work everywhere unlike at home in Fiji work is very hard to find and pay is unrated. She knows she will definitely find work in Australia and help her family back at home who are unfortunate.
·     Her sister’s place is the only place where she was accepted. Her sister is willing to accept her since her parents died. She is unemployed and the only place she is being supported financially is at her [sister]’s place in [Town 3].
·     If she returns to Fiji, it will be the same old situation. Babysitting and doing household chores. She is bored and looking at the opportunity she has in Australia and grabbing it. She needs to look after herself and not rely on her sister since she has a family of her own and a big responsibility to tend to in her own family.
·     The authorities have their own business to tend to and they will not bother about her life situation and the situations back in Fiji is complicated and the Government of today is making lots of false promises to help mostly us the Indigenous Fijians.
·     She will not be able to relocate because she didn’t have any other place to go to, her other [siblings] have their own respective families they are fully responsible for, so the only place she is stuck in is in [Town 3] at her [sister]’s place.
The second named applicant provided the following supporting documents with her protection visa application:
·     A copy of her Fijian Birth Certificate.
·     A letter form the [Minister] of the [Church] in Fiji certified in April 2019 commenting on her attitude and noting she loves cooking and endeavoured into micro-economical activities to assist her in taking care of her financial obligations.
·     Letter of 19 April 2019 from her sister commenting that the applicant’s mother died in 1990 and her father in 2005 and that her sister has continued to live with her and that she looked after her young children whilst she worked. It is stated now her children have grown up the applicant has decided to move on and be responsible for her own self.
·     Certificate of registration of a business name – [Business name], regarding buying and selling of [products] and commercial activities, with the registration commencing in October 2016.
·     Death certificates for her mother and father.
·     Certificate of marriage and birth certificates for her mother and father.
·     Birth certificate for her sister.
·     Letter certified on 5 June 2019 confirming when she was living with her sister, she opened her [business] to buy and sell [products] and commercial activities. It is stated this was a survival technique she had whilst in Fiji prior to coming to Australia.
Interviews with the delegate
The Department did not invite either applicant to attend an interview to discuss their claims for protection.
The delegate’s decisions
On 30 June 2020, a delegate of the Minister refused the first named applicant’s protection visa application. The delegate did not accept the applicant’s claimed harm on return to Fiji was for a s 5J(1)(a) reason. The delegate was not satisfied that the applicant is a refugee, as defined by s 5H(1) of the Act or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Fiji, there is a real risk that he will suffer significant harm as defined in s 36(2)(aa) of the Act. The delegate therefore found the first named applicant is not a person in respect of whom Australia has protection obligations.
On 30 October 2019, a delegate of the Minister refused the second named applicant’s protection visa application. The delegate was not satisfied that the second named applicant is a refugee, as defined by s 5H(1) of the Act or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Fiji, there is a real risk that she will suffer significant harm as defined in s 36(2)(aa) of the Act. The delegate therefore found the applicant is not a person in respect of whom Australia has protection obligations.
Claims and evidence before the Tribunal
Review applications
On 8 July 2020, the first named applicant lodged an application for review of the delegate’s decision. He included with his application a copy of the delegate’s decision.
The second named applicant applied to the Tribunal for a review of the delegate’s decision on 8 November 2019. She included with her application a copy of the delegate’s decision.
Procedural matters
On 17 October 2024 the first named applicant wrote to the Tribunal indicating that the second named applicant is his spouse, that they have been in a de facto relationship since February 2020, and requesting that her application before the Tribunal be withdrawn and that she be added as a secondary applicant to his application for review. He attached to his correspondence a copy of the bio-data page of the second named applicant’s passport, a confirmation letter from the Tribunal of lodgement of the second named applicant’s application for review, a general tenancy agreement confirming he lives with the second named applicant, and copies of the second named applicant’s Medicare Card, Photo Card, and Learner Driver Licence.
On 5 November 2024 the Tribunal wrote to the first named applicant informing him that he is unable to combine his application with another application before the Tribunal or add an applicant from another application as a secondary applicant to his application where those applications were not combined before the Department. It also informed him he is unable to withdraw an application for another applicant. In its letter of 5 November 2024 the Tribunal sought the first named applicant’s views and comment as to the Tribunal conducting concurrent reviews for both his and the second named applicants’ matters, which could include a combined hearing, hearings held back-to-back, and/or a single decision record. It informed him that if a combined hearing was conducted, each applicant would have a chance to give separate oral evidence and written submissions to the Tribunal.
The Tribunal arranged to have the second named applicant’s matter constituted to it. On 5 November 2024 the Tribunal also separately wrote to the second named applicant indicating that it had before it another review application which appears to be related to hers, where that applicant has stated that they reside at the same residential address as her and that she is their de facto partner. The Tribunal sought her comment and views and as to the Tribunal conducting concurrent reviews for both hers and that application, which could include a combined hearing, hearings held back-to-back, and/or a single decision record. It also informed her that if a combined hearing was conducted, each applicant would have a chance to give separate oral evidence and written submissions to the Tribunal.
On 11 November 2024 the first named applicant wrote to the Tribunal indicating that he and the second named applicant have agreed to a combined hearing. On 12 November 2024 the second named applicant wrote to the Tribunal and stated she and the first named applicant had agreed to a combined hearing.
Pre-hearing submissions – first named applicant
Prior to the hearing, on 9 December 2024, the first named applicant provided the Tribunal with a written statement. That statement included the following claims/submissions (summarised):
·     He fled from Fiji after he escalated claims of theft in the workplace to his employer, [Employer 1]. Despite doing what he considered to be the rational and right thing to do, he was instead reprimanded by the human resource department for breach of policies and later had his employment terminated. After this he escalated his claims to [an Official agency] and at the time of lodging his application in 2017, he had not received a response.
·     He asserts that these actions, based off of his moral attitude on reporting the theft which he believes to be the correct thing to do, is his political opinion. This is further reaffirmed by the Australian Fair Work Commission definition of political opinion.
·     At the time of his escape from Fiji in 2017 he had not received any response from the [Official agency] regarding the claims of workplace theft that he escalated to them following his termination from [Employer 1]. However, there has since been a significant change in circumstances that underscores his fear of persecution if he were to return to Fiji.
·     [Mr D] who served as [a senior executive] of [Employer 1] during his tenure and was one of the organisation heads to whom he initially reported the theft, is now under the investigation by [Official agency] and facing charges of [deleted]. It is alleged that between [January] 2018 and [September] 2018, [Mr D] whilst being employed in the civil service as [Position 3] of [Employer 1] Board, directed the [employees] of [Employer 1] to amend the findings in their investigation report for [an incident] which occurred [in] April 2018 at [a Venue] located at [Location].
·     [Mr D] was one of the key figures to whom he reported the workplace theft to, and his ongoing investigation and charges by the [Official agency] for [deleted] not only validate the corruption concerns he raised but also place him in an increasingly precarious position. Given his influential status during his tenure at [Employer 1], he believes that these developments could trigger retaliatory actions against him as a potential witness in the corruption that he is accused of. The charges lend further credibility to his original claims, potentially branding him as a whistleblower and exposing him to harm for his moral stance, which he assets is an expression of his political opinion.
·     His well-founded fear of persecution if he were to return to Fiji is reinforced by his previous altercations with [Mr C], the [Position 2] and [a relative of an official]. During the same period that he lost his job at the [Employer 1], [Mr C] who had a personal vendetta against him for exposing and escalating the theft that was happening under his successor’s ([Mr D]’s) nose, verbally threatened him, creating a climate of fear that continues to affect him to date. [Mr C]’s documented history of abuse as reported by the [News source 1] aligns with his personal experiences and highlights his capacity for retaliation against those he perceives as adversaries.
·     The [News source 1] article reports that [Mr C] [details deleted]. [Mr C]’s leadership has been characterised as a ‘dictatorship’, by the article and persons under his authority alike, which reflects the oppressive environment he also encountered during his tenure at [Employer 1].
·     The experiences of [former Organisation 1 personnel], as reported by [News source 1] who sought asylum in Australia illustrate the real dangers posed by [Mr C]. They allege that [Mr C]’s orders to [deleted] and his ability to destroy careers, underscore his capacity for unchecked retaliation and is one of his greatest fears if he were to return to Fiji. [Mr C] directly/indirectly caused the termination of his employment with [Employer 1], and he could destroy his career once he returned to Fiji. The officers in the [News source 1] article further describe how [Mr C] leveraged his connections, including his relationship with [a public official], to ensure ‘impunity’ for his actions and to punish those who disobeyed him. This further illustrates his fear of political persecution, as [Mr C]’s proximity to the highest levels of power in Fiji makes it impossible for him to seek protection or justice within the country.
·     His altercations with [Mr C], coupled with his documented abuses of power, create his legitimate and well-founded fear that his safety and freedom would be gravely threatened if he were to return to Fiji. [Mr C]’s demonstrated ability to retaliate against perceived dissenters and his entrenched political influences leaves him at significant risk of harm, persecution, and possible imprisonment.
·     By virtue of corruption in Fiji being country wide and carried out by officials at the very top of the government, the chances of him facing persecution wherever in the country are high. The first named applicant refers in his statement to excerpts from reports where the authorities are reported to have instituted legal proceedings against former Prime Minister Voreqe Bainimarama and suspended Police Commissioner Sitiveni Qiliho on abuse of office charges, which were acquitted by the court in October, however the state appealed the ruling. He also provided an excerpt about former Attorney General Aiyaz Sayed-Khaiyum being arrested on suspicion of abuse of his authority as acting prime minister in 2022, and the Fiji Independent Commission Against Corruption instituting legal proceedings against five former officers of the Land Transport Authority for issuing fraudulent driving licences and fraudulently taking money from private citizens. He believes the excerpts from the report illustrate that there exists a real chance that the persecution he fears relates to all areas of Fiji due to the systematic abuse of authority by influential figures in the government and public institutions. He believes that these incidents collectively illustrate a lack of accountability and a culture of corruption in the entire country leaving no area insulated from the influence and retaliation of these powerful individuals. His fear of persecution is not localised but instead reflects the broader environment of unchecked authority and systemic corruption across the entire country.
· He believes he satisfies the substantial grounds required under the Migration Act 1958. He believes that he will suffer significant harm, including physical harm, intimidation, and abuse of power, if he were to return to Fiji. His well-founded fear of persecution is rooted in his political opinion, which stems from his moral stance against corruption and the actions he took to report misconduct within [Employer 1]. The documented instances of systemic corruption, abuse of authority, and the oppressive environment in Fiji, coupled with his personal experiences and the ongoing threats posed by individuals such as [Mr D] and [Mr C], demonstrate that his fear of harm is real and relates to all areas of the country. He submits he is a person in respect of whom Australia has protection obligations and kindly requests that the Tribunal grants him the protection that he seeks.
Pre-hearing submissions – second named applicant
Prior to the hearing, on 9 December 2024, the second named applicant provided the Tribunal with a written statement. That statement included the following claims/submissions:
· She asserts that she meets the statutory criteria for refugee status as outlined in s 5H and 5J of the Migration act 1958. The pervasive and systemic gender-based discrimination in Fiji places women as a particular social group at substantial risk of persecution, with no safe area within the country. These risks are substantiated by comprehensive reports highlighting significant disparities in income, labour rights, and societal protections, which unequivocally demonstrate the entrenched nature of gender inequality across all regions of Fiji.
· She also reiterates her well-founded fear of persecution if returned to Fiji, emphasising that this fear is not speculative but grounded in the current, documented realities faced by women throughout the nation. She seeks the Tribunal’s favourable consideration of her application for protection, affirming Australia’s international obligations to uphold her rights and safeguard her from persecution.
· She hasn’t talked about her status as an Indigenous Fijian/refuted the delegate’s claim as DFAT Country Information Report(s) and all other reports really, indicate that there’s no discrimination against Indigenous Fijians. If anything they tend to receive preferential treatment and enjoy socio-economic capital.
It appeared to the Tribunal that the second named applicant’s written statement that was provided to it on 9 December 2024 may have been missing pages. At the hearing of the applicants’ matters on 12 December 2024 the Tribunal discussed this with the second named applicant and confirmed her statement was not all provided to the Tribunal on 9 December 2024. The Tribunal obtained a copy of the second named applicant’s statement at the hearing, read it, and discussed it with the second named applicant during the hearing. The statement included the following further claims/submissions, in addition to those that had been provided to the Tribunal on 9 December 2024:
·     Her protection claims are not based on her political opinion but the fact that she is a woman and a member of a social group that is highly persecuted in Fiji.
·     There is a real chance that if she were to return to Fiji, she would be persecuted by virtue of being a woman.
·     The United Nations Women country information on women in Fiji report, Beyond 33%: The Economic Empowerment of Fiji Women and Girls Report, and 2022 DFAT Country Information Report on Fiji (quoted in the second named applicant’s submission) demonstrate if she were to return to Fiji the systemic gender inequality that disadvantages women would place her at a vulnerable position. The reports reaffirm that labour exploitation, underpayment, and lack of enforcement exacerbate women’s economic state in Fiji. Altogether these factors illustrate a pervasive social pattern that tends to marginalise and oppress the entire social group of women in Fiji, illustrating her well-founded fear of her return to Fiji.
·     The real chance of persecution faced by women in Fiji is not confined to specific regions but is pervasive across all areas of the country. Systemic gender inequality and widespread societal discrimination against women are deeply entrenched in Fiji’s structures. Reports reveal that gender disparities in income, employment opportunities, and asset ownership affect women nationwide. DFAT report pervasive issues such as inadequate enforcement of labour rights and insufficient protections for women in workplaces, further exacerbating vulnerabilities across rural and urban areas alike. The widespread pattern of discrimination and persecution underscores that no part of Fiji offers a safe haven from these risks.
·     The first named applicant’s protection claims before the Tribunal further support her protection claim. His claims demonstrate the pervasive nature of corruption, systemic abuse, and retaliation in Fiji, which heightens her fear of persecution. His whistleblowing activities and moral stance against corruption have exposed him to retaliation and threats from powerful government individuals in Fiji. Given her association as his wife, she is afraid that she faces a substantial risk of being targeted as a perceived extension of his actions, especially since familial connections tend to carry significant consequences in retaliatory actions. The systemic corruption and impunity detailed in her husband’s submission reinforces her claim that there is no safe haven within Fiji, as the persecution they face relates to all areas of the country.
The hearing

The applicants appeared before the Tribunal on 12 December 2024 to give evidence and present arguments. The applicants brought one witnesses along to the hearing in person to give evidence in support of their claims. That witness was [Mr F], a former resident of Fiji, who worked under [Mr C]. The applicants were not represented in relation to the review.
The hearing was conducted with the assistance of two interpreters in the Fijian and English languages. The Fijian interpreters did not appear at the same time. An interpreter appeared via videoconference initially as the in-person Fijian interpreter booked for the hearing was running late due to a communication error. The applicants agreed to commence the hearing with a Fijian interpreter appearing via videoconference, until the in-person interpreter arrived at the Tribunal. The Tribunal confirmed with the applicants they were able to understand the interpreters. The applicants speak English and did not always require the assistance of the interpreters. The applicants were able to answer questions without hesitation and their answers demonstrated an understanding of the questions being put to them.
The Tribunal confirmed at the start of the hearing that both applicants remain separate applicants before the Tribunal and that they could give separate evidence and submissions to the Tribunal. It outlined they could request breaks as needed. It took their comment and views as to who would give evidence to the Tribunal first. The first named applicant gave evidence first, in the absence of the second named applicant. At the completion of his evidence, the second named applicant gave evidence, initially with the first named applicant remaining in the hearing room. After the Tribunal checked with the second named applicant if she would prefer to give evidence in the absence of the first named applicant, which she confirmed she would, the first named applicant vacated the hearing room for the second named applicant to discuss her claims for protection. With the consent of both applicants, the Tribunal raised country information and concerns in respect of their economic claims on return to Fiji with them together at hearing, as set out below.
At the hearing the applicants provided the Tribunal with a bound bundle of documents, which the Tribunal has considered. It included:
·     The supporting documents the first named applicant had provided to the Department.
·     Copies of the applicants’ statements.
·     A [Official agency] report from [February] 2024 about the charge against former [Employer 1 senior executive Mr D].
·     A report from [News source 2] from [February] 2024 about [an incident] at [Venue] in 2018 and the involvement of [Mr D] and [named person].
·     A letter of 1 December 2024 from [an occupation 1] at [Employer 1] confirming [Mr D] created a culture of fear and was physically abusive and used vulgar language and physical torture whilst [senior executive] of [Employer 1] over 2012-2015 and that the applicant had arguments with [Mr C] and was recognised as a unionist.
·     Country information reports on the situation in Fiji.
The Tribunal is satisfied that the applicants had a reasonable opportunity to present evidence and submissions, be heard, and participate fully in the hearing. Where relevant, the applicants’ oral evidence to the Tribunal and the witness evidence of [Mr F] is referred to in the analysis below.
Post-hearing submissions and evidence
At the conclusion of the hearing the Tribunal provided the applicants with a further week to provide it with any additional materials before it would proceed to make a decision.
Between 18 and 20 December 2024 the second named applicant provided the Tribunal with links to or copies of the following articles:
·     World Bank Group, ‘Urgent Action needed to reduce Fiji’s debt levels: World Bank’, 17 April 2023.
·     Vijay Narayan, ‘Urgent need to develop a Fiji Women’s Economic Empowerment National Action Plan – Cabinet’, Fiji Village, 16 February 2024.
·     Fiji Economic Country Report.
·     RNZ, ‘Over 200,000 people live in poverty in Fiji: UN report’, 28 September 2020.
·     Alisi W Daurewa, ‘Understanding women and their spaces: A Fijian Experience in the 21^st Century’.
·     Fiji News, ‘Fiji women’s rights spotlighted, alarming statistics’, 8 March 2024.
·     RNZ, ‘Fiji police lack understanding of universal human rights – women’s rights activist’, 11 December 2024.
·     DFAT Country Information Report – Fiji, 20 May 2022.
·     Judith Shaw, Fiji Country Report.
·     In the Magistrates’ Court of Fiji at Suva Criminal Jurisdiction – State v Josaia Voreqe Bainimarama and Sitiveni Tukaituraga Qiliho, stated to be the abuse of authority affecting the economy and people of Fiji.
·     In the Magistrates’ Court of Fiji at Suva Criminal Jurisdiction – State v Josaia Voreqe Bainimarama and Sitiveni Tukaituraga Qiliho, no case to answer ruling.
·     Action on Poverty, Fiji, Case study: training increase health and hygiene awareness.
·     United States Department of State, 2022 Country Reports on Human Rights Practices: Fiji.
·     In the High Court of Fiji at Suva Criminal Appeal – State v Josaia Voreqe Bainimarama and Sitiveni Tukaituraga Qiliho, judgment and sentence.
·     Abigail Vaughton, ‘Everything to know about women’s rights in Fiji’, 25 January 2023.
·     Convention on the Elimination of All Forms of Discrimination against Women, Information received from Fiji on follow-up to the concluding observations on its fifth periodic report, 14 May 2021.
·     Ocean and Human Rights, Tackling Gender Inequality in Fiji: Business Responsibilities and Opportunities, May 2023.
·     Fiji 2020 Human Rights Report.
·     ADB, ‘Priorities of the People: Hardship in the Fiji Islands’, September 2003.
The second named applicant also provided the Tribunal between 18 and 20 December 2024 with links to various YouTube videos of the state of services, economic policies, and the government budget in Fiji.
In submitting supporting evidence the second named applicant stated with her correspondence that the government's intention for economic growth and the strategy it will implement to reduce national debt, poverty, and the newly elected government has publicly acknowledged constraints to growth such as climate-related shocks, lack of diversification and investment, and sluggish private sector job growth. She stated even though tourism has grown and stimulated economic activity across services-related sectors such as accommodation, transport, wholesale, and finance and insurance, creating jobs to reflect this growth is yet to be seen and finding a job is not that easy and especially if you are a returning citizen (woman) who has been living overseas.
Combined written decision
On 16 December 2024 the Tribunal wrote to the applicants separately asking them to each confirm their consent for a combined decision record or alternatively to advise the Tribunal if they would prefer a separate decision record. On 3 January 2025 the first named applicant wrote to the Tribunal indicating he had discussed the decision record with the second named applicant and he consented to a combined decision record. On 6 January 2025 the second named applicant confirmed in writing her consent to a combined decision record.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
REASONS AND FINDINGS
The issue in these cases is whether the applicants are persons in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decisions under review should be affirmed.
Nationality
The applicants claim to be citizens of Fiji. The first named applicant provided a copy of the bio-data page of his Fijian passport to the Department. The delegate was satisfied that the first named applicant is using his own identity and that he is a citizen of Fiji. At hearing the first named applicant presented his Fijian passport to the Tribunal. The second named applicant provided a copy of the bio-data page of her Fijian passport to the Department. The delegate was satisfied that she is using her own identity and that she is a citizen of Fiji. She also presented her Fijian passport to the Tribunal at hearing. The applicants have consistently claimed to be citizens of Fiji. In the absence of evidence to the contrary, the Tribunal accepts this and finds the applicants are citizens of Fiji and Fiji is their receiving country for the purposes of assessing their claims for protection.
Analysis, reasons and findings
In the hearing, the Tribunal discussed the applicants’ protection claims, what they claim occurred in Fiji, why they fear returning to Fiji, and their work, family, education, and residential history.
The first named applicant advanced the same claims at hearing as detailed in his written protection visa application and in his statement to the Tribunal. He claims he will be harmed on return to Fiji in respect of the action he took revealing instances of corruption at [Employer 1], as a witness that can give evidence against [Mr D] and [Mr C], and in retaliation by [Mr C] and [Mr D]. He also raised concerns he would be imprisoned in relation to the theft of money at the [Employer 1], that he would not find steady employment and have a stable income on return to Fiji, and that he would be distressed re-adjusting to life in Fiji and returning there and not being able to cover his and his broader family’s expenses.
The second named applicant advanced the same claims at hearing as detailed in her written protection visa application and written statement of 9 December 2024. She claimed she would be harmed on return to Fiji on account of her status as a woman, in connection to the first named applicant’s claims, and due to the political situation in Fiji. She also raised concerns about obtaining a stable income in Fiji, affording her expenses, re-adjusting to life in Fiji, and experiencing emotional distress and psychological harm at having to return to Fiji and leaving her life in Australia.
Whilst the Tribunal has not reached the same conclusions as the applicants as to the impact on them on return to Fiji, the Tribunal found them to be straightforward and reliable witnesses. The Tribunal’s assessment and findings in respect of the applicants’ claims are set out below.
First named applicant
Personal background and circumstances in Australia
The first named applicant provided a detailed personal background for himself at hearing. The Tribunal accepts he was born in Suva, that he has an aunt and uncle in Australia, [children] living in Suva, and [children] living in [Town 4] with their mother. The Tribunal accepts the first named applicant is providing financial support for his children in Fiji, and that one of them works as [an occupation] and another in [a workplace], with [number] of them still in tertiary schooling and [number] in primary or high school. The Tribunal accepts he is in a de facto relationship with the second named applicant and that they commenced their relationship in 2020.
As to his residential history, the first named applicant explained at hearing, and the Tribunal accepts, he lived in Suva whilst in Fiji other than the three weeks before he departed Fiji for Australia, where he went to stay in [Suburb], [Town 2] in his [brother]’s house.
The first named applicant has set out a detailed account of his work history in his written claims. At hearing he confirmed he competed his schooling and diploma in Fiji and that he commenced working at the [Employer 1] in Suva in 1997. He stated at hearing his ranking at [Employer 1] was [an occupation 1] in [job task 1] and that his role was a [job title 1] and that he [worked in] the [job task 1] department. He indicated that he commenced that specific role in 2015. The Tribunal accepts the applicant’s claimed study and work history in Fiji.
The Tribunal explored with the applicant whether he underwent any medical treatment or counselling or mental health treatment in Fiji. He stated he had an internal illness back in 2000 and had his appendix out before that but otherwise his health issues resolved after that and he went back to playing [sport]. He did not outline any mental health treatment or counselling.
The first named applicant explained that whilst in Australia he has worked in [workplaces/job tasks]. He stated he and the second named applicant have been living in rental accommodation. He outlined he has not been involved in any groups whilst in Australia, including political or religious groups, and he has not obtained any form of medical or mental health treatment in Australia. The Tribunal accepts the first named applicant’s work history in Australia and medical circumstances in Fiji and Australia.
Claims related to his past employment with the [Employer 1]
The first named applicant claims he was unlawfully terminated from his employment at [Employer 1] and that he will be harmed on return to Fiji on account of his role in revealing the theft of money from the safe at [Employer 1], in respect of the information he holds about corruption within [Employer 1], and in respect of the information he communicated about [Employer 1] and its executive team.
He has provided a detailed statement and a significant amount of documentary evidence regarding his employment dispute with the [Employer 1], the email he circulated to the broader [Employer 1] [work locations] on [date] July 2017, his reports about the theft of money at the [Employer 1], and his termination. He explained at hearing the [Employer 1] safe was missing about $[Amount] according to the accountant at the [Employer 1] and confirmed $[Amount] was missing from the Winston fund. He stated the only people checking the safe were the Acting CEO and [Mr D]. The emails and supporting documents the first named applicant has provided to the Department and Tribunal evidence his reports of the theft of the money to the [Employer 1] executive, [Official agency], and [public official].
The Tribunal explored with the first named applicant at hearing the interactions he had with [Mr D] and [Mr C] in Fiji and his past experiences of harm there. He explained he had some intimidating interactions with [Mr C] and that on one occasion when [Mr C] was [Position 3] and [another position], he came into a management meeting at [Employer 1] and told everyone off comparing them to [deleted] and how [deleted] does a better job. The first named applicant explained he put his hand up and said not to compare the two and they had some exchanges and swear words as a result. He explained [Mr D] told him that day that [Mr C] had directed him to get him terminated, but [Mr C] did not come back that day. He explained on other occasions [Mr C] would make the [sport] team walk home without food after losing a match and he stopped that, having an argument with him and [Mr D].
The first named applicant explained the last incident he had with [Mr C] was in March 2017 when he was with the [work] group and [Mr C] was telling the Acting CEO of the [Employer 1] how to run the [work] program and he objected, saying [Mr C] and the police should not be affiliated with [Employer 1]. He explained the Acting CEO forced the recruits to walk to the [location] which he did not consider safe. He said [Mr C] came to the [workplace] that day and told him to go home, which he refused to do, stating it was against his employment law conditions. He explained he had a tense exchange with [Mr C] and pushed the bonnet of [Mr C]’s car. When asked if [Mr C] retaliated in any way he stated no, but that he believes the email he then sent to [Employer 1] [work locations] was legal and they then suspended him.
At hearing the first named applicant explained he was not otherwise harmed, intimidated, harassed, or persecuted in any way in Fiji. When asked if he had any other contact with [Mr C] after March 2017, he stated no.
The Tribunal accepts the first named applicant had a series of verbal altercations with [Mr C] and [Mr D] throughout his employment with the [Employer 1] in Fiji, that he pushed the bonnet of [Mr C]’s car on one occasion, that [Mr C] sought that he be terminated at one point, and that his last altercation with [Mr C] was in March 2017. The Tribunal accepts the first named applicant raised the issue of missing funds from the [Employer 1] safe with [Employer 1] management by email, including [in] June 2017 and that he raised ongoing concerns about the missing funds in emails to the [Employer 1] and in subsequent emails to the [Official agency] on [date] August 2017 where he named who had access to the safe and a range of other [Employer 1] issues. The Tribunal accepts the first named applicant raised the missing [Employer 1] funds and other [Employer 1] issues in a letter to [public official] on [date] November 2017, where he named people who had access to the safe, including [Mr D]. The Tribunal accepts on [date] July 2017 the first named applicant emailed broader [Employer 1] [work locations] and staff members about a range of issues, leading him to be investigated, suspended from him employment and ultimately found to have breached the [Employer 1] Human Resources Policy and was terminated from the [Employer 1] on [date] October 2017.

The Tribunal explored with the first named applicant at hearing his departure from Suva to [Town 2] before he left for Australia and his concerns in respect of the [Employer 1]’s request for his address. In his statement with his protection visa application he stated a week after collecting his termination letter he moved to [Town 2] with his parents and stayed there until he left the country and that he was curious why he was asked for his residential address to deliver a letter acknowledging his appeal letter. At hearing the Tribunal raised with him the email he had provided the Tribunal dated [date] November 2017 notes [Employer 1] requested his forwarding address to send him an original copy of their letter. It asked him whether it is possible they wanted his forwarding address to send him a physical original document, as opposed to them having any desire to have ongoing physical contact with him for any reason. In response the first named applicant stated they had already emailed him so why would they want his physical address and he was under fear so didn’t want to tell them. He stated if he told them they would know he was leaving the country and that was the environment he faced at the time.
The Tribunal asked the first named applicant about the current circumstances of his employment, the appeal, and various [Employer 1] members at hearing. He stated the Acting CEO left [Employer 1] in 2018 when [Mr D]’s case for [incident] manipulation came up. He explained his appeal went through a Tribunal and the union was fighting the case and the Tribunal found that he was unfairly dismissed in mid-2018. The Tribunal asked if he was able to be reinstated in his position at [Employer 1]. He stated in response that he was given two options, either to be reinstated or to be paid what was left over in his contract. He stated he chose to be paid out his contract and he received about 12,000 Fijian dollars. The Tribunal accepts the applicant’s evidence in respect of the outcome of his appeal.
In discussing his letters to [public official] and the [Official agency] the first named applicant stated nothing came of his letters but he met with [public official] personally as he was dropping his son at [location] and [public official] was himself [doing something there]. He stated when he told him about the complaint, he had a driver sent to pick up his documents. The Tribunal asked the first named applicant if he followed up his letters to the [Official agency] or [public official] from Australia. He stated no he did not follow up. He stated he has not heard from [Mr C], [Mr D], or the Acting CEO of [Employer 1] since he arrived in Australia. The Tribunal accepts this to be the case.
When asked why he fears returning to Fiji and what will happen to him if he returns there, the first named applicant stated he fears the theft of money he reported will be turned against him and he will be blamed for the theft because of the power of [Mr D] and [Mr C]. He stated he fears if he gets blamed for the theft and gets a sentence, [deleted] in the prison system.
The Tribunal asked the first named applicant if he was ever criminally charged in Fiji in respect of the theft of [Employer 1] money. He stated no. When asked if he could explain why he believes he would be accused of stealing the money on return to Fiji seven years later and why he would be subject to a criminal charge when it does not appear that he was ever charged or accused at any time whilst he was in Fiji, and where his employment dispute appears to be in respect of a breach of a policy and a finding of misconduct, he stated his claim was put when the government was in place and the manipulation of theft was relevant at that time. When asked if he thought they would still try to have him criminally charged with the theft on return to Fiji now he stated he did not think so.
The first named applicant stated [Mr C] is still out there and [Mr D] was charged with manipulating the cause of [an incident] in 2018. He outlined that during his time working with them their leadership style was one of fear and he was the only person who was straight with them and opposing them. The first named applicant explained he could be a key witness to place [Mr D] in jail because of how he manipulated the [incident] and ran [Employer 1].
The Tribunal asked the first named applicant how he could be a key witness to the [incident] if it occurred in 2018, which was after he left Fiji. He stated he knows the individuals who manipulated the [incident] investigation. When asked if he had information about the [incident] or knew the people, he stated he discussed the [incident] with a few [employees] and they told him the cause of the [incident], but he knew [Mr D] had been influencing the Department to change it. He stated the [employee], Mr R, who had reported the email he had sent around had been promoted and that Mr R was the head of the investigative department. He explained Mr R had been promoted for dobbing on him and that officer would say whatever [Mr D] wanted him to. The Tribunal confirmed with the first named he had spoken to people about the [incident] from Australia.
The Tribunal asked the first named applicant what witness evidence it is that he could give. He stated he was called and told he could use the [incident] information to try and get back at that [employee], Mr R, on the basis of corruption or something. He explained [Mr D] was reported to [official agency] last year. The Tribunal raised with the first named applicant that it was struggling to understand why he would be sought out as a witness for any reason. He stated if [Mr D] comes back, he could explain the [employee], Mr R, is the guy who changed the [incident] report. In discussing how he knew that he stated the guy who wrote the report spoke with him. The Tribunal raised with the first named applicant wouldn’t the guy who spoke with him and who wrote the report be the witness rather than him. In response he stated yes, he could be.
The Tribunal explored with the first named applicant who it is he fears harm from on return to Fiji. He stated he fears harm from [Mr C], both directly and through the prison system if he is put in prison. He stated [Mr C] tried to instil fear in people and in him so many times but he was up front with him in front of others and [Mr C] didn’t like that. He raised concerns about powerful people sabotaging his job applications in the future. In discussing whether there was anyone who could protect him from the harm he fears, such as the authorities or police, he stated he doesn’t know and he doesn’t trust even the high [authorities].
The first named applicant’s childhood friend [Mr F] gave evidence to the Tribunal that he had direct experience of [Mr C]’s leadership and abuse in Fiji as he worked [in Organisation 1]. He stated he had himself made videos discussing [Mr C]’s leadership. In discussing his knowledge of the first named applicant’s issues in Fiji he stated how [Mr C]’s leadership was the issue and a number of people left Fiji due to the past government and corruption. He stated [Mr C] is still around in public and has been in and out of Australia and is a murderer and there would still be at threat that the first named applicant would be taken into custody if he returns to Fiji.
The Tribunal discussed with the first named applicant that in the supporting documentation he provided the Department he has included the email he circulated on [date] July 2017 and the formal letter he was sent by [Employer 1] on [date] July 2017, as well as the appeal of his termination. It raised its concern with the first named applicant that it appears his employment ceased by way of a formal employment dispute, he was investigated and terminated, and he sought a review of that termination and set out his grounds of appeal. It outlined it was struggling to understand why he believes he’d be criminally charged, harmed, or targeted in any way in relation to those incidents or his connection with the [Employer 1] on return to Fiji in the reasonably foreseeable future, particularly where he was not harmed or accused of stealing money at any time over several months by [Mr C], [Mr D] or anyone at [Employer 1] or anyone else during the investigation, when he was on paid leave, when he was terminated, after submitting his concerns to the [Official agency] and [public official], or when he submitted his termination appeal. The Tribunal raised with him it appears he was not harmed or targeted in Fiji, and discussed its concern with him as to why anyone would do anything in relation to him on return to Fiji in the reasonably foreseeable future given it’s now been a further seven years since the incidents occurred at [Employer 1]. In response he stated in honesty, he sees the concern seven years down the line, but in the thick of things, back then, being fair, if he had been asked that question when the last government was still in place, he would have harm. But honestly, he stated, he doesn’t think he has that strong a case now.
The Tribunal raised country information with the first named applicant at hearing that indicates [Mr C] resigned as [Position 2] and that he was suspended in 2023 regarding allegations before [named authority][1]. It explained it is reported there was a wide sweep of government changes since the new Fijian government came into power in December 2022[2] and that the 2022 election resulted in a victory for the opposition coalition led by former SODELPA leader Sitiveni Rabuka[3], with the People’s Alliance Party, National Federation Party, and Social Democratic Liberal Party forming a people’s coalition[4]. The Tribunal explained it appears there has been a significant shift in political power since he was in Fiji, and since [Mr C] was in power and in government. It stated it appears the articles he has referred to in his statement relate to [Mr C] in 2020, before he was suspended and when he was still in power and before the change of government.
[1] [Source deleted].
[2] [Source deleted].
[3] Jon Fraenkel, ‘The Anatomy of Frank Bainimarama’s Defeat at the Fiji December 2022 Election’, The Journal of Pacific History, Volume 59, 2024, Issue 2.
[4] Patricia O’Brien, Centre for Strategic and International Studies, ‘A New Era in Fijian Politics’, 7 February 2023.
The Tribunal also raised with the first named applicant it is reported by DFAT in their latest country information report that corruption in Fiji in not a significant problem[5]. It also outlined the United Sates Department of State Report on Human Rights Practices in Fiji report on instances of corruption with arrests being made, proceedings being issued against individuals, and the state appealing rulings, as he himself had pointed out in his supporting evidence[6]. It explained given the country information and evidence before it, it may find he does not face a real chance of serious harm or a real risk of significant harm from [Mr C] or any other people connected to [Employer 1] on return to Fiji, including in respect of anyone trying to destroy his future career or using any influential connections against him. In response the first named applicant stated he wouldn’t argue with that, and he hopes the Tribunal can consider the seven years he has been in Australia, the time he had to wait for an outcome, and the investment he has made in schooling, his job, and the life he has established. He stated he could not support his children if he returns to Fiji and he would face emotional and psychological harm if he has to return there. The Tribunal appreciates the first named applicant has undertaken study and work in Australian and has established a life in Australia, although did not find his response overcame the Tribunal’s concerns.
[5] DFAT, Country Information Report – Fiji, 20 May 2022, 2.10, 7.
[6] United States Department of State, 2023 Country Reports on Human Rights Practices: Fiji.
In discussing the first named applicant’s written documents and emails, the first named applicant stated some of those emails were sent directly to [Mr C]. The Tribunal raised with the first named applicant its concern given the first named applicant’s profile in Fiji and the nature of what was raised in his emails and correspondence in respect of [Employer 1] and sent to [Mr C], and that he wasn’t harmed or charged in Fiji for any reason, that it may find he does not face a real chance of serious harm or a real risk of significant harm in respect of his views or emails on return to Fiji in the reasonably foreseeable future. The first named applicant did not wish to comment on the Tribunal’s concern.
The Tribunal acknowledged the first named applicant’s study and employment in Australia, that he would need to re-establish himself on return to Fiji, that he may not have capacity to pay his broader family’s expenses on return to Fiji, and that he may experience emotional or psychological distress at returning to Fiji and re-establishing himself. The Tribunal raised with the first named applicant that it may not find these concerns or considerations, or his removal from Australia to Fiji, amount to serious or significant harm under the Act. The Tribunal explained the concept of serious harm in the Act, the non-exhaustive instances of serious harm that are detailed in the Act, and the exhaustive definition of significant harm. In response the first named applicant stated he fears economic harm and a lack of stability and he has no guarantee of getting a job or a consistent or reliable source of income and he can only survive if he returns and has a steady income. The Tribunal considered the first named applicant’s response and did not find it overcame the Tribunal’s concerns. The first named applicant’s economic concerns on return to Fiji are discussed in more detail below.
Economic concerns on return to Fiji
The first named applicant explained if he had to return to Fiji he would have to start at the beginning and re-establish himself. He explained he has had seven years in Australia and it hasn’t crossed his mind that he might need to go back. He stated he has spent $20,000 on schooling as he has tried to establish himself, doing courses [and] obtaining various licences. He raised concerns about not having a stable income or any guarantee of getting a job or consistent source of income on return to Fiji.
When asked what he would do if he returned to Fiji, he stated he would look for another job, although he fears the powerful people may sabotage his job applications somehow, even though the government has changed, as it is only the political party that has changed. He stated if he returned to Fiji he would return to Suva, although he could not afford to pay rent and he has no house and his children are renting accommodation. He stated he could not support his children if he returns to Fiji.
Country information before the Tribunal indicates that Fiji is an upper-middle income country and one of the largest economies in the Pacific region. Most Fijians work in sectors such as tourism and agriculture although the pandemic caused disruption[7]. The official unemployment rate was 4.8% in 2020, and the country information indicates about 30 per cent of the population was living in poverty in 2019 but estimates of poverty rates vary and the impact of the pandemic is unknown[8]. The country information indicates there has been significant economic growth in Fiji across 2022-2023, steady economic growth in 2024, and projected continuing economic growth across 2025-2026[9]. The job market has improved in Fiji, demand for labour has persisted, job advertisements have risen, and labour loss in Fiji is considered a domestic risk[10]. In 2023 the minimum wage increased to FJD 4/hour[11].
[7] DFAT, Country Information Report – Fiji, 20 May 2022, 2.7, 7.
[8] DFAT, Country Information Report – Fiji, 20 May 2022, 2.21, 8.
[9] Reserve Bank of Fiji, ‘Macroeconomic projections for the Fiji Economy’, 12 June 2024, accessed at on 11 December 2024.
[10] The World Bank, Pacific Economic growth Slowing After Post-Pandemic Rebound, 5 March 2024; Reserve Bank of Fiji, RBF September Economic Glance Review: at a glance, accessed at on 11 December 2024; Reserve Bank of Fiji, RBF August Economic Glance Review: at a glance, accessed at on 11 December 2024.
[11] '$4 Minimum Wage in Place', FijiLive, 4 January 2023.
The Tribunal discussed this country information with the applicants at hearing as part of the combined hearing. It raised that the information suggests the economy in Fiji is steady, there are opportunities for work, including for women, and its concern that the country information and evidence before it any does not indicate the applicants would be denied employment in Fiji for any reason, or that there is any intention on the part of any person, body, or group to cause the applicants economic harm. The Tribunal outlined that whilst it acknowledges it may be challenging re-establishing themselves on return to Fiji, and that wages and opportunities in Fiji are not as abundant as those in Australia, it may not find those challenges amount to serious or significant harm under the Act. It explained it may find on the country information, and considering the first named applicant’s skills at the [Employer 1] and the second named applicant’s skills in caring for children and cooking, that they would each be able to secure employment and earn an income on return to Fiji such that they do not individually face a real chance of serious harm or a real risk of significant harm on return to Fiji in the reasonably foreseeable future in terms of their ability to each earn an income or subsist.
The first named applicant stated in response that the figures do not reflect the grass roots level and true reality of an individual in Fiji and if he returns to Fiji, he has no guarantee of a job. He stated he has obtained skills and training in Australia and he wants to obtain a job in Fiji equivalent to his skills and qualifications. The first named applicant stated he does not want to work in security for $2 and hour and he has expenses to pay and he will run out of money. He explained people are coming abroad to work and the data doesn’t reconcile with why people are coming to work in Australia. The first named applicant stated in his personal experience friends have come to Australia to work under the Pacific Scheme and he doesn’t agree with the country report as it doesn’t reflect the individual person. He stated for him they have established themselves in Australia, paid off their car loan, are paying off bank loans, and they have a credit system. He stated in Fiji they won’t be able to get that because of his age and they won’t get a loan as he’s [Age] and they have moved the retirement age to sixty. The first named applicant stated he is half-way paying off some land back in Fiji to build a house on a block of land in case they need to return. The Tribunal accepts the first named applicant has paid off debts and a car loan in Australia and that he has a financial system in Australia. It accepts he has obtained qualifications in Australia. However, the Tribunal did not find his responses overcame its concerns. The second named applicant’s economic concerns on return to Fiji and her response to the Tribunal’s concerns are discussed in more detail below.
Second named applicant
Background and circumstances in Australia
The second named applicant explained at hearing she and the first named applicant commenced their relationship in 2020. She stated she has [sisters], one of whom remains in Fiji in [Town 3], with her other [sisters] now living in [another country]. She explained at hearing both her parents have passed away. Whilst in Fiji she stated she lived in Suva before living in [Town 3] with her sister. She attended primary and some high school in Fiji.

104. The Tribunal has accepted the first named applicant has not followed up on his letters to the [Official agency] or [public official] from Australia, and that he has not heard from [Mr C], [Mr D], or the Acting CEO of [Employer 1] since he arrived in Australia. It has accepted he appealed his termination, that a Tribunal found he was wrongfully terminated, and that he received a payout from his employment of approximately 12,000 Fijian dollars in mid-2018.
105. The Tribunal has accepted the second named applicant holds general political views that the Fijian government is corrupt and ill equipped. The Tribunal has accepted the second named applicant provided assistance to her sister looking after her children for fifteen years in Fiji, in addition to selling [products]. It has accepted she has obtained farming and machine operator experience whilst in Australia and that she has not experienced any medical issues or obtained any medical treatment or counselling. It has accepted the first named applicant has not obtained any mental health treatment or counselling in Fiji or Australia.
106. The Tribunal has considered the findings above, and having regard to the findings above, its assessment of the applicants’ future conduct in Fiji and relevant country information as raised above and discussed with the applicants at hearing, the Tribunal is not satisfied there is a real chance that they will suffer serious harm upon return to Fiji in the reasonably foreseeable future.
107. To meet the refugee criterion, a person must have a well-founded fear of persecution for one or more of the reasons mentioned in s 5J(1)(a), namely race, religion, nationality, membership of a particular social group or political opinion.
108. The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, whilst s 5J(1)(b) imposes an objective standard, that there must be a real chance of that fear being realised and the person being persecuted.
First named applicant
109. The Tribunal considered the first named applicant’s claim he will be harmed in respect of his role in revealing the theft of money at [Employer 1] and the corruption and other issues that occurred at [Employer 1], including his emails that named [Mr C] and [Mr D] and his conflict with [Mr D], [Mr C] and other senior officials at [Employer 1]. The Tribunal accepts in revealing the theft of money at [Employer 1], emailing the broader [Employer 1] about issues at [Employer 1], and emailing the [Official agency] and writing to and speaking to [public official] the first named applicant has expressed views in opposition to the government in power in 2017 and of [Employer 1].
110. The Tribunal finds whilst the first named applicant worked in a volatile environment at [Employer 1] and with [Mr D] and [Mr C], he was involved in an employment dispute with [Employer 1] at the time of his departure from Fiji and was not the target of ongoing harm from [Mr C], [Mr D] or anyone else involved in [Employer 1] on his departure from Fiji to Australia. During the months in which he was being investigated after sending his [date] July 2017 email to [Employer 1] [work locations] and staff he was not threatened, targeted or harmed in any way. Nor was he charged, threatened, or harmed in any way in respect of his role in raising the missing funds from the [Employer 1] safe. He was not a target of any harm after he sent an email to the [Official agency] or [public official] or after he appealed his termination from [Employer 1]. Whilst he has claimed [Employer 1] sought his residential address in [Suburb], [Town 2] to potentially target him after he lodged his termination appeal, the Tribunal finds the first named applicant’s details were sought for the purposes of sending him a hard copy of correspondence from [Employer 1], as outlined in the [Employer 1]’s email to him, and not to target or harm him for any reason.
111. The first named applicant worked at [Employer 1] and had observations of the conduct of [Mr D], [Mr C] and [Employer 1] officials there up until the cessation of his employment in October 2017. He does not have direct information about the 2018 [incident] involving [Mr D]. He has not continued to agitate for any action against [Employer 1], [Mr D], or [Mr C] since arriving in Australia and has not followed up on his [Official agency] complaint. He has not joined any political groups whilst in Australia or undertaken any political action of any kind in Australia against the Fijian government.
112. As raised with the first named applicant at hearing, [Mr C] resigned as [Position 2] and was suspended in 2023 regarding allegations before [named authority], and the Fijian government since coming into power in December 2022 has conducted a wide sweep of government changes. The information provided by the first named applicant to the Tribunal about [Mr D] and as discussed with him at hearing indicates he has been charged by the [Official agency]. The Tribunal finds in these circumstances and given the nature of the information the first named applicant holds in respect of [Mr C], [Mr D] and [Employer 1], the first named applicant will not be sought out to give witness evidence against [Mr C] or [Mr D] or anyone else in any forums in the reasonably foreseeable future on return to Fiji, including the [Official agency]. It finds even if he were to give witness evidence in respect of his former work at [Employer 1] and what he experienced there, given the country information as discussed with the first named applicant at hearing, and that he was not harmed on any occasion whilst in Fiji for raising his views and speaking out, he would not be the subject of any retaliatory harm in supporting the new government to speak on issues of government corruption and his observations of [Mr C], [Mr D], or general corruption in government functions.
113. When the Tribunal raised with the first named applicant that it may find he does not face a real chance of serious harm or a real risk of significant harm from [Mr C] or any other people connected to [Employer 1] on return to Fiji, including in respect of anyone trying to destroy his future career or using any influential connections against him, he stated he would not argue with that. He stated at the hearing he does not think he has a strong case now in respect of [Employer 1], [Mr C], or [Mr D], and he does not think he will be charged with the theft that occurred at [Employer 1]. He did not wish to comment on the Tribunal’s concern that it may find given his profile and what he raised in respect of [Employer 1] and to [Mr C] that he does not face a real chance of serious harm or a real risk of significant harm on return to Fiji in respect of his views and emails. The first named applicant’s evidence in respect of the work and qualifications he has obtained in Australia and the length of time he has been in the country did not overcome the Tribunal’s concerns in respect of whether he faces a real chance of serious harm on return to Fiji for any reason.
114. Considering the above and the first named applicant’s claims individually and cumulatively, as well as the supporting documentation he has provided throughout the process, the Tribunal finds there is no real chance he will experience harm of any kind in respect of his political views, or from [Mr C], [Mr D], or any past members of [Employer 1] or anyone else on return to Fiji in the reasonably foreseeable future regarding the former theft of money from [Employer 1], his role in exposing issues that occurred at [Employer 1], or his past employment dispute and appeal concerning [Employer 1], including in respect of his ability to seek work without being sabotaged.
115. The first named applicant raised at hearing that he fears he will not find steady employment on return to Fiji, have a stable income, and be able to cover his and his extended family’s expenses. He stated he wanted a job equal to the qualifications he has gained in Australia and that he feared he would not get loans or work due to his age. The first named applicant has a significant work history in Fiji and Australia, with experience at [Employer 1], in [workplaces/job tasks]. He has obtained additional licences whilst in Australia. Whilst the Tribunal accepts wages in Fiji are not as high as they are in Australia, and that the first named applicant may not be able to continue to cover his extended family’s expenses on return to Fiji, or obtain employment in Fiji that matches his exact qualifications in Australia or obtain financial loans, it finds as raised with the first named applicant at hearing that jobs are available in Fiji and the first named applicant will not be denied work for any reason, including due to his age. In these circumstances it finds his economic concerns on return to Fiji do not amount to serious harm under s 5J(4)(b) of the Act.
116. The Tribunal considered the first named applicant’s concern he will have trouble re-establishing himself on return to Fiji, providing for his extended family, that he will be distressed returning to Fiji, and that he has created a life for himself in Australia and found employment and undertaken study and that he does not want to return to Fiji. As raised with the first named applicant at hearing, whilst the Tribunal appreciates the first named applicant does not want to return to Fiji and that he has undertaken steady employment in Australia and obtained a number of additional qualifications, it finds any emotional distress he may experience on return to Fiji, in re-adjusting to life in Fiji, his inability to continue to provide financial support for extended family members, and his removal from Australia to Fiji does not amount to serious harm in accordance with s 5J(4)(b).
Second named applicant
117. The second named applicant raised at hearing she would experience gender based harm on return to Fiji. She claimed women are underpaid, insufficiently protected in workplaces, and subject to systemic violence and drug abuse. As raised with the second named applicant at hearing, whilst the Tribunal acknowledges gender based violence is an issue in Fiji, it finds she specifically will not be the target of harm from any person, group, or body on return to Fiji in respect of her gender, including in relation to drugs or in a community or family setting. She was not the target of harm whilst in Fiji for any reason and did not experience any threats or harm there, including for reason of her gender. The Tribunal considered the additional supporting evidence provided by the second named applicant after the hearing. It did not find that material overcame the Tribunal’s concerns as to why she would be the target of harm from anyone on return to Fiji for reason of her gender. On the basis of the evidence before it, the Tribunal finds there is no real chance the second named applicant will be subject to gender based violence on return to Fiji in the reasonably foreseeable future. Whilst the Tribunal acknowledges women are comparatively underpaid in Fiji and undertake substantially more domestic labour compared to men, as raised with the second named applicant at hearing it finds these concerns do not amount to serious harm. The Tribunal finds the second named applicant will not be denied employment or services for any reason on return to Fiji, including her gender. The Tribunal is not satisfied acceptance of a lower paid role on return to Fiji or facing cultural pressure to perform a higher level of domestic tasks constitutes serious harm in accordance with s 5J(4)(b) of the Act.
118. The Tribunal considered the second named applicant’s claim she would be a target of harm owing to the first named applicant’s claims in respect of [Employer 1]. As outlined above, the Tribunal finds the first named applicant does not face a real chance of serious harm on return to Fiji in the reasonably foreseeable future on account of his involvement with [Employer 1], from anyone connected to the [Employer 1], or owing to his role in revealing any issues that occurred at [Employer 1]. As discussed with the second named applicant at hearing, it finds as her claims derive from the first named applicant’s claims, it similarly finds she does not face a real chance of serious harm for these reasons.
119. The Tribunal considered the second named applicant’s claim she would be harmed owing to the political climate in Fiji and her political views. The Tribunal has accepted the second named applicant holds general views in opposition to the government and that she finds the government to be ill-equipped. The second named applicant has not expressed her views publicly, does not have a large political profile, and has not indicated in her evidence that she is an active member of any political group or that she has engaged in any political activity in Australia. When the Tribunal raised with her at hearing, as outlined above, that it may find she would not be a target of political harm on return to Fiji and that she would not face a real chance of serious harm for any reason she raised a general concern that the government is still unstable and discussed government economic concerns without explaining why she would be a target of harm for any reason. The country information as discussed with the second named applicant at hearing indicates there has been no significant political unrest or deterioration of government functions since the formation of the new government in December 2022 and the political situation has remained generally stable. Considering the country information and the second named applicant’s limited political activity in Fiji and Australia, the Tribunal finds there is no real chance she will experience harm on return to Fiji in the reasonably foreseeable future in relation to the political stability of the government or the continued expression of her political views.
120. The Tribunal considered the second named applicant’s claim she would be unable to work and earn an income on return to Fiji. The Tribunal has found the second named applicant provided unpaid childcare to family whilst she lived in Fiji, in addition to selling [products] for additional income. Whilst in Australia she has worked as a machine operator, stating at hearing that she has been working six days per week. Whilst she has claimed she would not be able to obtain a stable income compared to that in Australia, and her post hearing documentation and information raises concerns about obtaining an income and services as a returning woman to Fiji, the Tribunal finds as discussed with her at hearing that she has experience and skills that she could utilise on return to Fiji to secure paid work. Also as discussed with the second named applicant at hearing, there is no evidence before the Tribunal that she will be denied work or services or a livelihood for any reason on return to Fiji. Whilst the Tribunal appreciates the opportunities, services, and wages in Fiji are not as well-resourced or high as they are in Australia, the Tribunal finds the second named applicant will not suffer significant hardship threatening her capacity to subsist on return to Fiji or that she will be denied access to basic services or the capacity to earn a livelihood of any kind on return to Fiji. The Tribunal finds her economic concerns on return to Fiji and concerns about the limited opportunities and services available in Fiji do not amount to serious harm in accordance with s 5J(4)(b) of the Act.
121. The second named applicant raised at hearing that she fears she will be stressed on return to Fiji and that she will have to re-establish herself and she will suffer mental health issues and psychological harm. The second named applicant has not obtained any mental health treatment in Australia or Fiji and the Tribunal has found she does not suffer from a mental health condition. Whilst the Tribunal appreciates the second named applicant may experience some emotional distress on return to Fiji and require a period of time to adjust to her changed circumstances, as raised with her at hearing it finds she will not be denied access to mental health services for a s 5J(1)(a) reason, and that her concerns about experiencing emotional distress on return to Fiji, being removed from Australia to Fiji, and at having to re-establish herself in Fiji do not amount to serious harm under s 5J(4)(b).
122. The applicants did not claim, and there is nothing in the material to suggest, that they fear persecution for any other reason in Fiji.
123. For the reasons given above, and having considered the applicants’ claims individually and cumulatively, the Tribunal is not satisfied that if the applicants return to Fiji now or in the reasonably foreseeable future that they face a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason. Accordingly, the Tribunal is not satisfied that the applicants have a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicants have a well-founded fear of persecution, the applicants do not meet the definition of refugee in s 5H(1) and does not satisfy the criterion set out in s 36(2)(a).
Do the applicants satisfy the complementary protection criterion for protection?
124. Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
125. The Tribunal has considered whether on the evidence before it, there are substantial grounds for believing that there is a real risk that the applicants will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Fiji.
126. For the reasons set out above, the Tribunal has found that there is not a real chance that the applicants will experience harm in relation to the first named applicant’s work or reports about [Employer 1] or from anyone connected to [Employer 1] if they return to Fiji in the reasonably foreseeable future. It has found there is not a real chance the applicants will experience harm in respect of their political views on return to Fiji or that the second named applicant faces a real chance of gender based harm on return to Fiji in the reasonably foreseeable future. The ‘real risk’ test under the complimentary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion[20]. This applies equally to the assessment of ‘well-founded fear’ for the purposes of s 5J. It follows the Tribunal finds that the applicants do not face a real risk of significant harm for these reasons.
[20] MIAC v SZQRB [2013] FCAFC 33.
127. The applicants raised economic concerns on return to Fiji. The Tribunal discussed with them both at hearing that the country information before it indicates the job market has improved in Fiji, demand for labour has persisted, and labour loss in Fiji is considered a domestic risk. As raised with the applicants at hearing, there is no evidence before the Tribunal that the applicants will be denied employment on return to Fiji for any reason. The first named applicant has a substantial work history across multiple industries including [with Employer 1], [and work sectors]. The second named applicant has a history of providing un-paid domestic care work for family, obtained some paid employment in Fiji in food provision and sales, and has obtained significant work experience in Australia in machine operations.
128. The Tribunal finds the applicants’ work experience and qualifications in Australia would assist them to obtain employment on return to Fiji. As discussed with the applicants at hearing, whilst the Tribunal appreciates wages, opportunities, and services in Australia are more extensive than they are in Fiji, there is no evidence before the Tribunal that there is any body, group, government, or person intentionally seeking to cause the applicants economic harm or deny them employment, income, or services for any reason. Whilst the Tribunal appreciates the applicants may not be able to obtain work on return to Fiji that is equal to the wages they receive in Australia or the qualifications they have obtained in Australia, and that they may not be able to obtain financial loans, the Tribunal finds these concerns do not amount to significant harm. The Tribunal considered the second named applicant’s additional supporting evidence and submissions and did not find it overcame its concerns as to whether the applicants would be denied income or be subject to significant harm on return to Fiji for any reason. Considering the above, the Tribunal finds the applicants’ economic concerns do not amount to significant harm in accordance with s 36(2A).

129. The Tribunal considered the applicants’ claims they will experience emotional distress and mental harm on having to leave Australia and return to Fiji, be unable to continue to support extended family in Fiji and re-establish themselves on return to Fiji. The Tribunal acknowledges the applicants have established themselves in the Australian community, obtained additional qualifications, that they have steady employment in Australia, and that they have supported family members back in Fiji from their work in Australia. Whilst the Tribunal acknowledges they may experience some personal and emotional distress at having to leave their jobs and lives in Australia and return to Fiji, and that they may not be able to continue to provide ongoing financial support for family members on return to Fiji, as discussed with them both at hearing and as outlined above, it finds such concerns and their removal from Australia to Fiji, does not result in any intentional act to cause them harm, or come within the exhaustive definition of significant harm in s 36(2A) of the Act.
130. The second named applicant raised concerns at hearing that women in Fiji are underpaid in Fiji compared to men and that they undertake a substantial amount of domestic labour. The second named applicant has some paid employment experience in Fiji through her food sales and cooking work and she has obtained additional skills and qualifications whilst in Australia. The Tribunal finds the second named applicant is well placed to secure work on return to Fiji with her additional machine operations experience and qualifications or in an industry related to her past cooking and food sales business or experience in providing domestic support and childcare. The Tribunal is not satisfied she would be denied employment based on her gender or time working in Australia.
131. Whilst the Tribunal appreciates gender pay disparity exists in Fiji and that women undertake a larger proportion of domestic and care labour, as discussed with the second named applicant at hearing and raised above, the Tribunal finds the second named applicant’s general concerns in this respect and acceptance of a lower paid job on return to Fiji does not amount to significant harm. A person will suffer significant harm if they are 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. The Tribunal is not satisfied that having to accept employment in Fiji at a lower level of pay than she has received in Australia or compared to equally qualified men or being expected to complete a higher level of domestic care tasks in Fiji results in her being arbitrarily deprived of her life or the death penalty being carried out on her. The Tribunal finds there is no intentional act to bring her harm and suffering such that she will experience torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment. Whilst the Tribunal acknowledges the second named applicant would prefer to keep her current job in Australia and that she may feel some level of distress and embarrassment at accepting a lower paid job on return to Fiji and in being expected culturally as a woman to be a domestic care provider, the Tribunal is not satisfied any job offer she receives on return to Fiji or decision that is made about the appropriate remuneration for a role involves an intentional act on the part of anyone to cause her extreme humiliation which is unreasonable. Considering the second named applicant’s concerns individually and cumulatively, the Tribunal finds the second named applicant’s concerns in respect of gendered pay disparity and gendered domestic labour expectations on return to Fiji do not amount to significant harm under s 36(2A) of the Act.
132. On the evidence before it, whilst the Tribunal is sympathetic to the applicants’ circumstances and acknowledges their qualifications and work experience in Australia, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Fiji, there is a real risk that they will suffer significant harm. That is, the Tribunal is not satisfied that there is a real risk in being removed from Australia to Fiji that they will be arbitrarily deprived of their lives or suffer the death penalty; or subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
133. The Tribunal is therefore not satisfied the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).
Conclusion
134. For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a).
135. Having concluded that the applicants do 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 applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).
136. There is no suggestion that the applicants satisfy 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 applicants do not satisfy the criteria in s 36(2).
DECISION
137. The Tribunal affirms the decisions under review.
Date of hearing: 12 December 2024
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.
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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.
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36     Protection visas – criteria provided for by this Act
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(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.
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