2011857 (Refugee)

2011857 (Refugee) [2024] AATA 4087 (26 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2011857
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Linda Pearson
DATE:26 September 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 26 September 2024 at 2:05pm
CATCHWORDS
REFUGEE – protection visa – Fiji – supporters of Christian breakaway states and members of Indigenous association – political instability and military and police brutality – application made after period as unlawful non-citizens – written claims suggested by another person, and disavowed – new claims that wife from same village as and related to public figure – no involvement in politics – age, husband’s health, and financial circumstances – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 6 April 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Fiji, applied for the visas on 24 March 2016. The delegate refused to grant the visas on the basis that neither applicant met the refugee or the complementary protection criteria.
The applicants appeared before the Tribunal on 15 August 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the whether [the first or second applicant] is a refugee or a person who meets the criteria for complementary protection or is a member of the same family unit as a person who is a refugee or meets the criterion for complementary protection.
A summary of the relevant law and mandatory considerations is set out above, and an extract of key provisions of the Act is provided in the Attachment to this decision.
Background
According to the protection visa application [the first applicant] was born in [Province] Fiji in [Year]. She stated that she is an indigenous Fijian and her religion is Christianity. She stated that her parents and [brothers] live in Fiji and that she has a son (born [Year]) and a daughter (born [Year]) also in Fiji. She completed secondary school in [Town] in [Year], and worked as [occupations 1 and 2]. She stated that she had lived between [Year] to 2009 at [Location 1], and then at [Location 2] between 2010 to 1025. [The first applicant] stated that in Australia she had worked as [an occupation 3].
[The first applicant] acknowledged that they had overstayed their visitor visas before lodging the protection visa application. The explanation was that they had not known how to apply for political asylum from instability in Fiji and escalating police and military brutality; were not confident in speaking English; fear of the Immigration Department, and fear of being sent back to Fiji.
[The second applicant] stated that he was born in [Year] and grew up in [Village, Island] Fiji. He stated that he is Fijian and his religion is [Christian denomination]. He has [siblings] living in Australia. He completed primary school education, and worked as [occupations 4 and 5]. He stated that he had lived between 2004 to 2015 at [Location 1]. He has worked in Australia as [an occupation 4].
[The first and second applicants] provided copies of their Fijian passports, birth certificates, and a copy of their marriage certificate. That document states that they married on [Date].
At hearing [the first applicant] stated that she had lived in [Location 1] between 2001 to 2015, with her husband and their son. Their son is married with two children. Her daughter from a previous relationship before her marriage to [the second applicant] is married and lives in [Island]. She has one brother who lives in [Village], Viti Levu. [The first applicant] stated that the information in the protection visa application about her employment in Fiji is incorrect, she did not work after she married. She worked after arrival in Melbourne [doing a job task], and then on a [workplace], and in 2017 she and her husband moved to Sydney. She sometimes does housework for family members.
[The second applicant] stated that he has [brothers and sisters], [in] Australia and [in] Fiji. He worked for the [Employer] in Fiji in the [section], and [occupation 4]. He has worked in [work sector] here and retired in January this year on medical grounds.
Protection claims
Both applicants made protection claims in the protection visa application, in substantially the same terms. They claimed that they were strong supporters of the two Christian breakaway states of Nadroga-Navosa and Ra, which were being closely monitored by the Bainimarama regime in Fiji. They claimed that they were citizens of the Fiji Native Government in Exile of the Christian breakaway states. They claimed that they were at risk of harm from the Bainimarama government because of their association with Ms Oni Kirwin; that they are followers of Oni Kirwin and associate themselves with her; and because they are members of the Pacific Indigenous Samaritan Association Inc (PISAI). They claimed that military and police brutality was happening in Fiji, including torture, rape and brutality and deaths in custody, and that they feared that would happen to them if they returned to Fiji. They claimed they were unable to relocate in Fiji and could not access protection from the authorities because the Bainimarama government is over militarised, the police had no power to protect them, and all the Ministries in Fiji were controlled by the military.
At hearing the applicants disavowed those claims. They stated that Ms Oni Kirwin had visited [Town] when they were working on the [workplace] there in 2016, and had helped them fill in the forms. Ms Oni Kirwin had told them what to write. [The first applicant] said that Ms Oni Kirwin had asked why they could not go back to Fiji and told them to say they were not happy with the leadership of Frank Bainimarama and the Justice Minister Aiyaz Sayed-Khaiyum. [The first applicant] said that she copied what Ms Oni Kirwin had written; [the second applicant] thought it was Ms Oni Kirwin’s handwriting on the form providing his details. Both confirmed that they have never been a member of the PISAI, and stated that they have had no contact with Ms Oni Kirwin since 2016. They have had help from someone else, not a lawyer, since then.
The protection claims as advanced at the hearing are first, that [the first applicant] fears harm because she is related to [Mr A, a public figure]: she comes from the same [village] in Viti Levu. Secondly, their claims are based on their financial circumstances, claiming that they have nowhere to live if they return to Fiji and nobody to help them, and on [the second applicant]’s medical condition.
Evidence before the Department
The applicants were not invited to a protection visa interview. The delegate considered country information concerning actions by the former Bainimarama government in response to the attempts to establish a breakaway state in Ra province, and reports that Ms Oni Kirwin had been banned from entering Fiji because of her involvement with the breakaway Christian states, and that a number of people from Ra province had been charged with sedition. The delegate considered country information concerning exit procedures in Fiji.
The delegate concluded that the applicants had not provided sufficient detail of their claims to identify the cause of any potential risk or persecution, and noted that they were able to depart Fiji on their passports without hindrance which suggested they were not of adverse interest to the authorities. The delegate was not satisfied that either applicant met the refugee or complementary protection criteria.
The delegate’s decision was dated 6 April 2017, and notified on the same date. The Department re-notified the applicants of the decision on 1 July 2020, and the applicants applied to the Tribunal for review on 20 July 2020.
Evidence before the Tribunal
The applicants provided a copy of the delegate’s decision with the application for review. At the hearing the applicants provided the following documents:
·Letters of support from:
o[Mr B] (brother of [the second applicant]);
o[Rev C], Vice President [Church 1 Organisation];
o[D], [Suburb 1] Parish, [Church 1];
o[Rev E], Minister [Suburb 2] [Church 2];
o[Mr F], [Town] [Church 1];
o[Mr G], Manager People and Culture [Employer];
o[Rev H], [Town 2] [Church 1];
·Certificate for completion of [Training] by [the second applicant] (28 September 2000) and Statement of Attainment (14 October 2020);
·Certificate III in [Subject] (22 December 2021) for [the first applicant];
·Certificates for [Job skill 1] training (31 May 2021), [Job skill 2] (17 May 2021) for [the first applicant]; and
·Immunisation certificates.
During the hearing [the second applicant] provided to the Tribunal medical reports:
· A letter from his General Practitioner dated 7 August 2024 confirming that he suffers from heart failure and chronic obstructive airways disease and had recently been admitted to hospital due to decompensation of those conditions. The letter states that he requires ongoing medical review and treatment and this will be maximised if he is granted permission to stay in Australia;
· A discharge summary dated 24 July 2024 from [Hospital] confirming his admission on 21 July 2024, investigations undertaken and medications prescribed, and that he is to have a cardiac review on 25 August 2024.
[The second applicant] confirmed that he was well enough to participate in the hearing.
During the hearing [the first applicant] provided photographs of the applicants at a formal meeting in [Suburb 3] NSW [in October 2019] with Mr Frank Bainimarama, on a visit to Australia while Prime Minister of Fiji. [The first applicant] explained that the gathering was for [specified] people, about [Number] people.
At the hearing [the second applicant] explained that they had lived in [Location 1], having originally been given land and then applied to build a house. They could not return to [Location 1] because the houses are being demolished to make way for redevelopment. Their son is still living there, and he has been advised to move out. At the moment his son is separated and he does not live with his family. Their son could not help them find accommodation, as he has to look for a place for himself. Other family members cannot help them; he has two siblings here in Australia who are Australian citizens, one brother is in the village in [Island], and most of the family live in one house. [The first applicant] said that the only family she has left in Fiji is her brother who lives in the village, and he has a home and family to look after.
The Tribunal asked [the first applicant] what her concerns are about returning to Fiji. Her response was that she wanted a better life. [The first applicant] stated that they had said they feared harm from the Bainimarama government because that was Oni Kirwin’s idea; and in fact she and [Mr A, a member of the former government] come from the same village, and they are closely related, as [Mr A] calls her [Relative 1] his [Relative 2]. [The first applicant] stated that she had had no concerns about the leadership of Mr Bainimarama when in government. Asked if she had concerns about returning to Fiji under the new government, [the first applicant] said that the main problem is that it is known that they come from the [same village as Mr A] and that it may affect her from people who support the new government. She stated that she feared harm from the current government because since they took over the community is not good. The Lands Department has told her son to pack up and go. [The first applicant] did not know whether others in [Location 1] had also been told to leave. Other family members have said that it is difficult to get help for development in the village because it is Bainimarama’s village. Asked for more detail [the first applicant] said that sometimes they are not able to get a permit to service the road to the village. [The first applicant] agreed that that affected everyone in the village, about 30 houses. Her brother’s house was supposed to be rebuilt and the current government is stopping that; and her son’s application for a car licence was not approved.
[The first applicant] stated that she has not met with Mr Bainimarama since 2019 when he came to Australia as Prime Minister. She has had no involvement in Fiji politics. The applicants confirmed that while they supported Mr Bainimarama’s government, they did not vote in the 2022 election in which the present Prime Minister won election.
Asked what she feared would happen to her if she returned to Fiji, [the first applicant] said that she is not able to go back because she is related to [Mr A]. [The first applicant] said that people might try to frighten her off by coming to wherever she was staying in the village. She has no other place to stay than in the village. She doubted whether the police could help because under the new government they do not see eye to eye.
Asked what he feared if he returned to Fiji [the second applicant] said that he would not want to see anything happen to his wife that would upset her. He is not sure that the current government is doing a good job, and there are problems with the police and drugs.
The Tribunal discussed with the applicants the country information suggesting that there had been no significant political unrest or deterioration of government functions since the government of Sitiveni Rabuka was elected in December 2022 after 16 years of government led by Frank Bainimarama, and that DFAT was not aware of any credible reports that the new government had harassed or ill-treated any supporters of the former Bainimarama government. [The first applicant] stated that she was not prepared to go back to Fiji, because of her family ties.
The Tribunal asked where the applicants would live if returned to Fiji. [The second applicant] stated that they cannot return to their house in [Location 1], because it is being redeveloped. [The first applicant] stated that the only place she could go would be [Village]. They are not working and without a job will not be able to rent a place to live. The Tribunal asked the applicants about the country information that indigenous Fijians (iTaukei) generally have large kinship networks with extended family often providing support when a family member is in need; that it is uncommon for elderly people to live alone, and they more commonly live with family who will support them.[1] [The second applicant] commented that Fijian society now is more individualised, and people are not supporting one another. Their grandson is in Australia because he lacks family support in Fiji. [The first applicant] stated that their son is facing hardship because of his family separation and his two sons need to be educated. There is nobody else to look after them.
[1] DFAT Country Information Report Fiji 20 May 2022, 2.23.
As noted above, at the hearing the applicants provided medical reports concerning [the second applicant]’s health conditions and recent hospital admission. [The second applicant] stated at hearing that he cannot go back to Fiji because he is concerned about his medical condition. The Tribunal noted the DFAT country information that healthcare is generally available in Fiji for those who need it; and that quality is better in urban areas; and specialist healthcare is generally available. [The first applicant] stated that [the second applicant]’s medical condition is a factor that puts them at risk if they return. They trust the medical services available in Australia, and cannot say that the same services would be available in Fiji.
Two family members attended the hearing, and after confirming that they were present to provide support and not to give evidence, remained during the hearing. At the conclusion of the hearing [Ms I] stated that she wished to give evidence, and she was invited to provide that in a written statement. [Ms I] provided a statement in support of the applicants on 19 August 2024.
Analysis, reasons and findings

The protection claims made by the applicants relate to:
·     Political concerns because [the first applicant] is related to, and comes from the same village as, [Mr A];
·     [The second applicant]’s medical issues; and
·     Economic hardship.
Nationality and receiving country
The applicants provided to the Department copies of their Fijian passports, birth certificates and a marriage certificate. The delegate was satisfied that both had provided sufficient evidence of their identity. In the absence of evidence to the contrary, the Tribunal is satisfied that [the first and second applicants] are citizens of Fiji and that Fiji is the receiving country for the purposes of assessing each applicant’s claims for protection. There is no evidence before the Tribunal that either applicant is a national or or has a right to enter and reside in any country other than Fiji.
Claim based on political opinion
As noted above, at hearing both applicants disavowed their claim that they face a real chance of persecution based on purported involvement with PISAI and the Fiji Native Government in Exile or Christian breakaway states. The applicants’ evidence was that they had never been members of the PISAI, the Fijian Native Government in Exile, nor had they had any involvement in the Christian states breakaway movement.
The Tribunal accepts that they had some association with Ms Oni Kirwin in 2016 when she assisted them in the preparation of the protection visa application. Their evidence was that they had not had any contact with Oni Kirwin since 2016, when she told them to go to the Department for fingerprint checks.
The most recent DFAT Country Information Report on Fiji (20 May 2022) does not include any information about PISAI, Ms Oni Kirwin, the Fiji Native Government in Exile or the Christian breakaway states. In 2017 DFAT reported that PISAI was based in Australia and did not have a reported presence in Fiji. DFAT reported that it was not aware of any interest in Fiji regarding persons associated with PISAI, with the exception of Ms Mereoni ‘Oni’ Kirwin herself who was reportedly banned from entering Fiji.[2] The Tribunal has been unable to locate any recent country information which indicates that persons previously associated with Ms Oni Kirwin are currently of interest to Fijian authorities.
[2] DFAT Country Information Report Fiji, 27 September 2017, 3.51.
In the Fijian general election held in December 2022 a coalition of the People’s Allaince Party, the National Federation Party, and SODELPA won control of parliament, and Sitiveni Rabuka became Prime Minister. The election ended to 16 year reign of the FijiFirst government headed by Prime Minister Frank Bainimarama.[3] DFAT reports that there has been no significant political unrest or deterioration of government functions since the Rabuka government was elected.[4] In May 2024, former Prime Minister Bainimarama was sentenced to one year in prison for perverting the course of justice after he sidelined an investigation into corruption at the University of the South Pacific in Suva.[5] Several high profile office holders perceived as having strong links to, or who were appointed by, the former government, including the former police commissioner, the former Finance Minister, Attorney General, and Health Minister, have been investigated and some prosecuted.[6] The Fijian Elections Office is in the process of official deregistration of FijiFirst as a political party, and the 26 members of that party now sit in parliament as independents.[7]
[3] ‘Fiji’s new politics', Interpreter, The (Lowy Institute for International Policy), 17 January 2023,
[4] 'Fiji 20230621135833 - Country Information - Political Update', Department of Foreign Affairs and Trade, 02 August 2023, 20230803112036.
[5] ‘The fall of Frank Bainimarama and Fiji First', Pacific Media Network, 02 July 2024, 20240708092656; 'Former Fiji PM Frank Bainimarama jailed for a year', BBC News, 10 May 2024, 20240612101321.
[6] ‘Bainimarama, Sayed-Khaiyum and Sharma plead not guilty’ FBC News, 19 June 2024, 20230612100804.
[7] 'The fall of Frank Bainimarama and Fiji First', Pacific Media Network, 02 July 2024, 20240708092656; ‘By[7]election avoided after MPs shift’, FBC News, 9 August 2024, 20240821123134; ‘FijiFirst deregistration now in the past, says Usamate’, Fiji Times, 20 August 2024, 20240820145016.
[The first applicant] expressed concerns based on her family relationship with [Mr A]. As amplified during the hearing, the concerns relate to perceived disadvantage experienced since the election to her home [village], which is also [Mr A]’s home village. That disadvantage, on her evidence, includes difficulties in obtaining road repairs, and affects the village as a whole. The Tribunal accepts that given the large kinship networks for iTaukei Fijians, the connection between [the first applicant] and [Mr A] would be common knowledge in their community; and that any advantages that may have benefitted the village residents under the Bainimarama government may have diminished since the change of government. In August 2023 DFAT stated that it was not aware of any credible reports that the new government has harassed or ill-treated any supporters of the former Bainimarama government.[8]
[8] 'Fiji 20230621135833 - Country Information - Political Update', Department of Foreign Affairs and Trade, 02 August 2023, 20230803112036.
On the evidence before the Tribunal the applicants had minimal association with Ms Oni Kirwin, which ceased in 2016; neither voted in the 2022 Fijian election; and neither has been politically active. The Tribunal accepts that there has been some impact on life in [Village] since the change of government in the 2022 election, which may affect the applicants if they seek to live in [the first applicant]’s home village on return to Fiji. On the evidence before the Tribunal that is not directed at individuals but applies to the village as a whole. While there have been investigations and prosecutions of individuals associated with the former government, those have been high profile individuals who played a prominent role in the former government. On the evidence before the Tribunal, and in light of the country information above, the Tribunal is not satisfied that [the first applicant], and by association her husband [the second applicant], face harm because of [the first applicant]’s family connections with the [former government]. The Tribunal finds that neither applicant would seek to engage in political activities on return to Fiji.
The Tribunal is not satisfied that either [the first or second applicant] faces a real chance of serious harm, or a real risk of significant harm, now or in the reasonably foreseeable future, on return to Fiji because of their previous association with Ms Oni Kirwin, previous engagement with Prime Minister Bainimarama in 2019, or [the first applicant]’s family relationship with [Mr A].
Claim concerning [the second applicant]’s health
The Tribunal accepts that [the second applicant] suffers from heart failure and chronic obstructive airways disease and was recently been admitted to hospital due to decompensation of those conditions. The medical reports provided to the Tribunal confirm that he required follow up at the hospital heart failure clinic, and ongoing medication. The Tribunal accepts that [the second applicant] requires ongoing medical review and treatment to maintain his health.
DFAT country information indicates that the Fijian health care system is the most complex and developed of the Pacific Island countries, and most Fijians have access to free healthcare. Free health services include primary and secondary health care, including generalist and specialist services. Specialist healthcare, including cardiology, oncology, radiology and mental health, is generally available particularly in large hospitals.[9]
[9] DFAT Country Information Report Fiji, 20 May 2022, 2.11.
The Tribunal acknowledges that [the first and second applicants] would prefer to remain in Australia, where [the second applicant] has received comprehensive medical support for his health conditions. The Tribunal acknowledges the concern expressed by them as to the availability of similar care should they return to Fiji. [The second applicant]’s GP states that the ongoing medical review and treatment to maintain his health will be maximised if he is granted permission to stay in Australia, however the medical evidence before the Tribunal does not establish that he requires treatment that would not be available to him in Fiji. On the country information available to the Tribunal the Tribunal is satisfied that health care, including specialist care, is generally available to the Fijian population which would include [the second applicant] if returned to Fiji; and that that health care would be free. The Tribunal is not satisfied that [the second applicant] has a well-founded fear of persecution in Fiji as a result of any health issues he may face there now or in the reasonably foreseeable future, and nor would there be a real risk he will suffer significant harm for that reason is removed from Australia and returned to Fiji.
Claims regarding economic hardship
[The first applicant] is now aged [Age], and [the second applicant] is aged [Age]. The Tribunal accepts their evidence that both are no longer working. The Tribunal accepts that [the second applicant] has health conditions which would make any future employment unlikely. The Tribunal accepts, based on the letters of support referred to above, that they are both highly regarded in their community, are active members of their church, and are committed to the welfare of their family and friends and the community.
The Tribunal accepts that living standards in Fiji are lower than in Australia and the economy is less advanced and less stable, and that most Fijians work in the informal sector.[10] The country information indicates that limited social welfare is available in Fiji, and that the Social Pension Scheme which is available to eligible people over the age of 65 and provides monthly payments covers only those employed in the formal sector who have received superannuation through the Fiji National Provident Fund.[11] Most people rely on large kinship networks with extended family, a form of support which is an important part of traditional Fijian culture. As stated by [the second applicant] at hearing, that system of support has been undermined by high levels of internal and overseas migration and the transfer from a subsistence to a market-based economy.[12]
[10] DFAT Country Information Report Fiji, 20 May 2022, 2.18.
[11] DFAT Country Information Report Fiji, 20 May 2022, 2.22; ‘Social assistance policy: protecting the poor and vulnerable’, United Nations Women, undated, accessed 9 June 2023, p.10, 20230712122715.
[12] DFAT Country Information Report Fiji, 20 May 2022, 2.23; 'United Nations Sustainable Development Group: Fiji', United Nations Sustainable Development Group (UNSDG), undated [not before August 2020], Accessed 27 November 2020, 20201127143851.
The Tribunal accepts the evidence of the applicants as to their family composition. Their son and [the first applicant]’s daughter live in Fiji. The Tribunal accepts the applicants’ evidence that they had previously lived with their son and his family in [Location 1], and that their son is not presently in a position to assist them with accommodation or other support given his family circumstances and the redevelopment of their home. [The second applicant]’s sister and brother live in Australia, and his brother, [Mr B], has stated in this letter of support provided to the Tribunal that he is committed to their support in their application to remain in Australia, including financial support.
The Tribunal accepts that it is unlikely that the applicants could return to live in [Location 1] if returned to Fiji; and that without employment it would be difficult to rent accommodation. [The first applicant]’s evidence was that they could return to her home [village]. The Tribunal accepts that the applicants would require financial support and assistance on return to Fiji, and that that support would have to come from their extended family both in Fiji and in Australia. On the evidence before the Tribunal they have that support in particular from their family members in Australia.
While acknowledging those challenges, the Tribunal is not satisfied that the feared economic hardship would be for any one or more of the reasons in s 5J(1)(a) of the Act. Further, given the evidence that there are close family members both in Fiji and Australia who have expressed support for the applicants, the Tribunal is not satisfied that it would in any event rise to the level of serious harm as instanced in the examples in s 5J(5), which include significant economic hardship which threatens a person’s capacity to subsist, or denial of access to basic services where the denial threatens the person’s capacity to subsist. Nor would any economic hardship involve arbitrary deprivation of life, the death penalty, or an intentional act or omission amounting to torture, cruel or inhuman punishment, or degrading treatment or punishment so as to constitute significant harm as defined in s 36(2A).
Conclusion
For the reasons above, the Tribunal is not satisfied that [the first applicant] has a well-founded fear of persecution in Fiji on return to Fiji as a result of any actual or imputed political opinion including her family connections with [Mr A], or economic hardship, now or in the foreseeable future. The Tribunal is not satisfied that [the second applicant] has a well-founded fear of persecution on return to Fiji as a result of any actual or imputed political opinion, his medical conditions, or economic hardship, now or in the foreseeable future. The Tribunal has considered those claims individually, and cumulatively, and is not satisfied that either applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that neither applicant meets the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). For the reasons above, the Tribunal is not satisfied that either [the first or second applicants] is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
For the reasons given above the Tribunal is not satisfied that either of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Linda Pearson
Member

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

20230619092820; 'Fiji: A chance to stop political history repeating', Interpreter, The (Lowy Institute for
International Policy), 14 February 2023, 20230317105123.

[2024] AATA 4087

26 September 2024

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction