2015862 (Refugee)

2015862 (Refugee) [2024] AATA 1547 (1 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2015862

COUNTRY OF REFERENCE: Fiji
MEMBER:Alicia Bills
DATE:1 March 2024
PLACE OF DECISION: Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 01 March 2024 at 3:44pm
CATCHWORDS
REFUGEE – protection visa – Fiji – political opinion – police officer under investigation – threats to family – threats of insubordination charges – return visit to Fiji – fear of killing – change of government – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
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 Home Affairs on 22 October 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Fiji, applied for the visa on 2 November 2019. The delegate refused to grant the visa on the basis that that the applicant is not a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal on 9 February 2024 to give evidence and present arguments. The Tribunal also received oral evidence from [Witness A] and [Witness B].
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.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
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 whether the applicant is 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. A summary of the relevant law, mandatory considerations and an extract of key provisions of the Act is set out in the Attachment to this decision. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality and travel to Australia
The applicant travelled to Australia in 2019 on an apparently genuine Fijian passport, a copy of which is contained in the material before the Tribunal. The applicant has also produced a copy of his birth certificate in support of his identity. The applicant has at all times maintained that he is a citizen of Fiji. The Tribunal is satisfied that the applicant is a national of Fiji and has assessed his claims against Fiji as his country of nationality and the receiving country.
The applicant’s claims for protection
Protection visa application form lodged November 2019
In his protection visa application form lodged with the Department of Home Affairs, the applicant stated the following as his reasons for leaving Fiji and claiming protection in Australia:
I have fled my country in fear of my life. I’m a acting [Rank 1] with the Fiji Police Force under the [Unit 1] based in [Town 1]. The Fiji Police Force is not like when we first joint the force. The directive or commands are coming outside the hierarchy of the police force from the government of the day. These affects how we do our job in the front-line. I didn’t request proper overseas leave because if I did I would not be permitted to leave the country. Most of the work or investigation in cases have been interrupted by government directives resulting us in not upholding the law and taking people responsible to task. I can’t go against the directives of my superiors since I would be considered as insubordination. Most police officers who have gone against the directives of their superiors have been taken to task. Some fled the country like [Officer A]. Should I return not I will face the full force of the law.
I have been verbal threaten and my family are in danger should I don’t follow orders. As I have mentioned that I am based with the [Unit 1] and has a section is [a team]. We have faced interference from Government, Fiji Military Forces in our work. Innocent people have been taken to task by the military for voice their views against government and when I lead my team to investigate the military involvement, I have received death threats from the military hierarchy since I am also a former soldier. As a police officer my job is to uphold the law of the land and I have been threaten as well as my family in doing that so. I don't feel safe anymore since my superior within the Fiji Police Force - Senior Superintend of Police is not able to look after us and also threaten me that I will be charged for insubordination.
To be honest and frank that I cannot seek redress within Fiji if the current government is still in power. As we all know that the Frank Bainimarama led government has put puppets in all government law agencies and department to suppress anyone trying to go against them. The best option is to fled the country like what [Officer A] [did].
Its no use moving to another part of Fiji since I am well-known to the both the Fiji Military & Fiji Police Forces. I can be located within days of moving since Fiji is a very small country.
As I have mentioned above that I didn't apply for proper overseas leave because my intention was to fled the country. Should I go back I will face the full force of the law as well as physically abused and interrogated for information which I know concerning the government of the day.
They will not protect me because I have came and sought protection of the Australian Government based on my our claims.
Documents filed in support of protection visa application
The applicant filed the following documents with the Department of Home Affairs in support of his protection visa application:
a.Certificate of Marriage dated [in] July 2001 with the applicant recorded as the bridegroom and [Wife A] recorded as the bride.
b.Certificate of Excellence awarded to the applicant by [College 1] in relation to completion of a [course 1] in 2004.
c.Certificate of Attainment awarded to the applicant by the Fiji Military Forces in relation to completion of a [course 2] in 2012.
d.Letter of Appreciation from the Fiji Police Force to the applicant dated [in] 2015.
e.An article from Amnesty International entitled: ‘Amnesty International reports Fiji’s police and military using torture’ dated 16 December 2016.
Documents filed in support of review application October 2020
In October 2020 the applicant filed the following documents with the Tribunal in connection with his application for review of the delegate’s decision:
a.Character reference by Reverend [A] in relation to the applicant dated 22 May 2020. The reference speaks of the applicant’s positive involvement with [Church 1].
b.Letter of Dismissal from the Fiji Police Force to the applicant dated [in] 2020. Part of the letter states: ‘Your dismissal was for failing to comply with Administrative procedure of Resignation.’
c.Letter of support from the applicant’s wife dated 18 December 2019 in relation to the applicant staying and working / studying in Australia. Parts of the letter in relation to the applicant’s employment with the Fiji Police Force are as follows: ‘He has less time with us and spends more time at work … At times I feel he was threatened about being sacked if work is not done as directed … He is compelled to attend work even though he is usually sick …’
Applicant’s evidence at the Tribunal hearing February 2024
At the Tribunal hearing on 9 February 2024 the applicant gave the following evidence:
a.The applicant was born and grew up in [Province 1], Fiji. His parents and siblings still live in Fiji.
b.After finishing high school, the applicant joined the Fiji Military Forces. Between 1997 and 2004 the applicant was a [position] in the Fiji Military Forces. In that role he was required to relieve the regular army from [specified] duties and assist with natural disasters. During his employment with the Fiji Military Forces he was seconded to the UN and performed peacekeeping duties in [Country 1].
c.In 2001 the applicant married [Wife A]. The applicant and his wife are still married. The applicant and his wife have an adopted son [named] who is currently [age] years of age. The applicant’s wife and their son live in Fiji. The applicant and his wife adopted their son when he was a baby.
d.In 2004 the applicant commenced employment with the Fiji Police Force. He remained employed with the police force until 2019. His role was a [Rank 1]. Every 5 years in Fiji, the applicant had to either re-enlist in the Fiji Police Force or leave the Fiji Police Force. If the applicant re-enlisted he would be sworn in and then paid a monetary bonus.
e.In the police force the applicant felt frightened every day. In Fiji he had to respect his elders regardless of whether they were right or wrong. If he challenged his superiors at work he would be punished, demoted or considered insubordinate.
f.In 2006, before the election, the applicant was investigating a matter and he received phone calls from an unknown number. He was warned to stop investigating the matter or he would be tortured or killed. He considered the threats were from the military. The applicant stopped investigating the matter. The threats stopped. The applicant was not harmed.
g.In 2006, during the election, the police were supplied with Glock guns. On one occasion the military surrounded the police [group] and demanded the police officers give the military the Glocks or the military would shoot the police with their rifles. The police (including the applicant) handed over their Glock guns.
h.In 2007 a new police Commissioner was appointed who declared that police officers were not allowed to have liquor or kava, on or off duty. The applicant was found in breach of these rules and had to spend two weeks at the barracks as punishment.
i.In 2007 the applicant told his wife’s cousin some information about an investigation. The applicant was never punished in relation to this event.
j.In 2010 during [a police event], the applicant spoke to his commanding officer about the drill movement they were doing. The applicant expressed concern that they were not performing the drill movement correctly. The applicant was made to do star jumps and press ups in front of everyone as punishment for challenging his commanding officer.
k.In 2011 the applicant and another police officer were punished because they were late to work. They were made to dive into muddy water in front of everyone as punishment for being late.
l.The applicant only faced threats / punishment in connection with his employment as a police officer in Fiji. He did not face any other threats / harm in Fiji.
m.The applicant could have left his employment with the police force at any stage and found alternative employment, such as work as a security officer, but the pay would have been a lot less.
n.In April 2019 the applicant and [other] Fijian police officers came to [Australia] for a training course conducted by [Agency 1]. The applicant was only in Australia for a few weeks but during this time he came to love Australia. He could see that in Australia human beings were treated equally, regardless of their gender, and also that workplaces were safe, in that people could talk to their superiors without repercussion.
o.When he returned to Fiji the applicant started planning to move to Australia. The applicant could not afford flights to Australia with his fortnightly income, as his fortnightly income went towards food and bills. The applicant was aware that he was due to be re-enlisted in the near future and would then be paid his monetary bonus. The applicant considered that if he requested annual leave and informed his employer that he planned to travel to Australia, his application for annual leave would have been refused. The applicant decided to re-enlist, be paid his monetary bonus and then fly to Australia. The applicant told his wife he was having a holiday in Australia for 2-4 weeks.
p.The applicant came to Australia in September 2019 on a visitor visa. The applicant applied for a protection visa in November 2019. The applicant has remained in Australia since his arrival in September 2019.
q.Since the applicant has been in Australia he has worked in [industry 1], and more recently has worked in [industry 2] and at [an agency 2]. The applicant has studied [for industry 2] at [a college]. If the applicant were to return to Fiji, he would not re-join the police force as his career has now taken another pathway.
r.The applicant is scared to return to Fiji as he fears the military or police will torture him or kill him. He considers he would be harmed because of casework he did when he was a police officer. At times he investigated senior military officers and some [other officials].
s.The applicant was not harmed when he was in Fiji as a result of his police casework but considers he would be harmed if he returned because the new government wants everything investigated.
t.Besides his letter of dismissal, the applicant has not had any contact from the Fiji Military Force or the Fiji Police Force since he has been in Australia.
Evidence of [Witness A] at the Tribunal hearing February 2024
[Witness A] is the cousin of the applicant. She gave the following evidence at the hearing on 9 February 2024:
a.[Witness A] and the applicant were brought up together in the same village in Fiji. [Witness A] is now an Australian citizen.
b.The applicant is a family man and is hard working. He was a good citizen in Fiji, always doing the best for his country. He worked in the police force for many years.
c.When the coup happened in 2006 it was very hard for the applicant and his family. He had to spend a lot of time at work and they did not know where he was. The applicant was stressed and threatened during this time.
d.The applicant is at risk if he returns to Fiji because anything could happen. The current Fijian leader is a former coup leader. The Fijian government are questioning things that have happened in the past.
e.Police officers have lost their lives in Fiji with families still waiting on answers. In 2006/2007, 2010, 2011 Fijian police officers lost their lives and [Witness A] considers the military to be the perpetrators. [Witness A] is aware of this as it was announced on TV at the time.
Evidence of [Witness B] at the Tribunal hearing February 2024
[Witness B] is an acquaintance of the applicant. [Witness B] first met the applicant when they worked together in the Fiji Police Force. [Witness B variant] gave the following evidence at the hearing on 9 February 2024:
a.He worked for the Fiji Police Force between the period 1995 - 2005. He was forced to leave in 2005. He is now an Australian citizen and has lived in Australia since 2013.
b.Fijian police officers were treated badly on the job when they tried to uphold the law.
c.The current Fijian government is unstable as they are former coup makers.
d.A lot of Fijian police officers are still running away.
e.The Fiji Police Force is small and everyone knows everyone. People would be aware the applicant has run away and is claiming refugee status.
f.It is not safe for the applicant to return to Fiji. Two years ago a police officer was found dead [in a location] at a [Unit 1]. It was reported in the newspaper. Random attacks occur on police officers.
Country information
At the hearing on 9 February 2024 the Tribunal discussed with the applicant and considered the following information sourced from the Australian Department of Foreign Affairs and Trade Country Information Report on Fiji dated May 2022:
Political system
2.28 Fiji has a unicameral parliament with proportional representation, an executive comprising a President and cabinet, an independent judiciary, the public service and the disciplined forces (military, police, prisons). Elections are held every four years and there are currently 51 members of the parliament. Under current arrangements, the parliament is the only popularly elected institution in Fiji. The Prime Minister is the head of government and holds office as the leader of the winning political party, similar to the system in Australia. The President is the head of state and is appointed by a vote in parliament. The President can hold office for up to two terms of three years each.[1]
[1] DFAT Country Information Report Fiji 20 May 2022 page 9
Security situation
2.34 Fiji is generally stable and secure. The elections in 2018 were orderly and free from violence. Crime rates, especially for violent and organised crime, are generally low. The risk of terrorism is low. Organised crime exists in Fiji, but it is not large-scale and is unlikely to affect people’s day-to-day lives. Some alcohol-related street violence occurs. Domestic violence is a serious problem (see Women). Accusations of police violence are commonly reported and regularly investigated (see Police).[2]
[2] DFAT Country Information Report Fiji 20 May 2022 page 10
3.25 The Constitution guarantees freedom of speech, expression, assembly and association. However, each of these rights is subject to broad caveats and can be limited by laws relating to national security, public safety, public order, public morality, public health and the orderly conduct of elections.[3]
[3] DFAT Country Information Report Fiji 20 May 2022 page 14
3.32 Politics in Fiji today is no longer characterised by the unrest of the past. The 2018 election was calm and orderly; international observers found the conduct of the election to be credible and that the outcome ‘broadly represented the will of Fijian voters’. Transparency International reported in November 2021 that only 4 per cent of people received threats or inducements to vote a certain way, the second lowest rate of the Pacific countries studied. There were some allegations of irregularities in counting, but these were not borne out and election observers certified the election as generally credible. The results were close, indicating a diversity of views among Fijian voters.[4]
[4] DFAT Country Information Report Fiji 20 May 2022 page 15
3.36 DFAT is aware of allegations of police harassing members of opposition parties. In-country sources told DFAT that such incidents are likely the result of orders from senior people in the police, military or government. Police allegedly use the Public Order Act to effect arrests in order to prevent opposition meetings, prevent protests or even shut down debate. Opposition parties use social media regularly but may self-censor.[5]
[5] DFAT Country Information Report Fiji 20 May 2022 page 15
Military
5.1 The Republic of Fiji Military Forces (RFMF) play an influential role in Fijian society. They have played a central role in Fiji’s recent history and Prime Minister Bainimarama was a RFMF Commander at the time of the 2006 coup.
5.2 The RFMF have a visible presence. Media reporting on RFMF activities is common and having served in the military or having a family member who did can be a source of pride for many Fijians. The military often plays a role in disaster relief efforts. During the COVID-19 crisis the military was active in enforcing quarantine regulations before the police took on that role. Fijian police are unarmed and, in cases where weapons are required, the military may assist police.[6]
Police
5.6 The Fiji Police Force (FPF) is a national police force that covers the whole country. The US Department of State Overseas Security Advisory Service 2020 Crime and Safety Report assesses Fiji police as ‘professional’ and notes recent improvements in training and accountability. It notes that police may not be based in vehicles and may not arrive in time to disrupt crimes in progress but assesses that ‘victims of crime can expect fair treatment with dignity’.
5.7 Police are generally well-resourced by the Government and receive funding and training from overseas aid partners. The police are, in general, disciplined (but see comments on violence below). Policing is conducted on a community policing model and police are generally actively engaged with the communities they serve.
5.10 The Fiji Police Force overall has the capacity to protect individuals from societal harassment, discrimination, and violence, and police are usually effective in carrying out their role in day-to-day crime detection, investigation and prevention.[7]
Police violence
5.13 Police misconduct, including excessive violence, is regularly investigated with a full range of censures routinely used, from disciplinary measures to dismissal and criminal charges being placed. In most cases, there is reasonable action taken when a complaint is reported.[8]
Conditions for returnees
5.28 DFAT is not aware of any official or societal discrimination against failed asylum seekers. Many asylum seekers begin their journey by responding to advertisements that promise a job and a Medicare card in Australia. These advertisements are scams with the organisers later making asylum claims on behalf of applicants that the applicant may not be aware of at the time they sign up. Emigration and return to Fiji are common in Fijian society. Many Fijians have cultural and family links to Australia, and a return would be unlikely to be seen as unusual or attract attention from authorities.[9]
[6] DFAT Country Information Report Fiji 20 May 2022 page 22
[7] DFAT Country Information Report Fiji 20 May 2022 page 22 - 23
[8] DFAT Country Information Report Fiji 20 May 2022 page 23
[9] DFAT Country Information Report Fiji 20 May 2022 page 25

The Tribunal also discussed with the applicant and considered the following information sourced from the US Department of State Country Report on Human Rights Practices for Fiji 2022:
Impunity remained a problem in the security forces in some politically connected cases. The constitution and Public Order Act explicitly provide immunity from prosecution for members of the security forces for any deaths or injuries arising from the use of force deemed necessary to enforce public order … There is no independent oversight mechanism for the security forces. The law requires the consent or approval of the police commissioner to begin any investigation into, or take any disciplinary action against, a police officer.[10]
On December 24 (2022), People’s Alliance Party leader Sitiveni Rabuka was sworn in as prime minister after parliament gave him 28 votes to 27 for his opponent, former Prime Minister Bainimarama. International observers assessed the electoral process as free and fair overall, despite some initial concerns with the pace of rolling results announcements and a glitch in the official reporting app that took it offline early in the count. The Australian- and Indonesian-led Multinational Observer Group agreed the outcome broadly represented the will of voters.[11]
[10] ‘Country Reports on Human Rights Practices for 2022 – Fiji’ US Department of State, 20 March 2023 page 3
[11] ‘Country Reports on Human Rights Practices for 2022 – Fiji’ US Department of State, 20 March 2023 page 11
The applicant agreed with the country information shared by the Tribunal in relation to the political system, security situation and military. The applicant did not comment on the country information shared by the Tribunal in relation to the police and conditions for returnees.
The applicant stated that the country information did not provide the whole picture, it just showed the good parts and did not show the bad parts. The applicant also stated that the current leader of Fiji is a former coup leader and that ministers have also held roles in the coup.
The applicant provided to the delegate an article from the World Socialist Web Site dated 16 December 2016 entitled ‘Amnesty International reports Fiji’s police and military using torture’. Parts of the article are as follows:
Fiji’s police, corrections and military officers are committing torture against people accused of crimes or in custody, according to an Amnesty International report released on December 4 … Amnesty charges the Fijian authorities with acting with impunity, their brutal activities condoned at the highest levels. Security forces personnel who commit abuse rarely face sanction and even when officials are convicted of crimes, they are usually quickly pardoned and released from prison.
In light of the applicant’s evidence, and the evidence of [Witness A] and [Witness B], the Tribunal invited the applicant to provide documentary evidence following the hearing in support of his claim that former Fijian police officers were at risk of harm in Fiji.
Material filed following the hearing
Approximately two weeks after the Tribunal hearing, the applicant provided the Tribunal with various news reports, articles and other documents. The applicant also referred the Tribunal to several YouTube videos. The material provided to the Tribunal can be summarised as follows:
a.A bundle of articles from 2016 referring to an Amnesty International Report released in 2016 which reported on Fiji’s police and military using torture with near impunity.
b.A bundle or articles / reports dated between 1987 and 2022 regarding the political history of Fiji.
c.An ABC radio news report dated 27 August 2021 article entitled: ‘Claims Fiji is ‘transitioning to a police state’ after doctor questioned by police over alleged COVID-19 misinformation’. The article states: ‘Dr Jone Hawea was taken in for questioning late on Tuesday night about allegations that he has been sharing misinformation about COVID-19. He was released late on Thursday night with no charges laid against him.’
d.Articles from 2019 regarding an investigation of a complaint of assault against the Fijian prime minister.
e.A Fijian police report dated 6 July 2019. The report is by Ro Filipe Tuisawau and details his statement relating to a breach of the Public Order Act.
f.A ‘minute sheet’ dated 21 September 2021 which states that Suliasi Daunitutu ‘on his Facebook account posted a photograph to the main gate of the Fiji Military Force QEB and caption it as ‘MUTINY AT QEB’.
g.An article dated 22 December 2011 entitled ‘Funeral today of Fiji policeman found dead in military pool’. The article states: ‘Police Constable Vetaia Ratuvono was discovered dead at the Queen Elizabeth Barracks pool in Nabua last Thursday but police have ruled out foul play. The Fiji Times paper reports the Assistant Police Commissioner, Henry Brown, as saying that Constable Ratuvono had died during a swimming exercise.’
h.An article dated 22 October 2019 entitled: ‘Man who allegedly stabled Police Officer to death in Lautoka last night was bailed for a theft case yesterday’. The article states: ’24-year-old Siuta Niumataiwalu who was based at Lautoka Police Station died this morning after being stabbed by the suspect of a theft case in Lautoka last night … The officer managed to apprehend the suspect near the Churchill Park Grounds but the suspect allegedly took out a kitchen knife and stabbed the officer several times.’
i.An article dated 12 November 2019 entitled: ‘Attacks on Fiji police: A ‘growing threat’. The article states: ‘… three police officers were attending to a report where 20 men from Nauouo, Vartukalo, Toki and Waitovu villages were drinking along Beach Street in the town after 7pm. “The officers asked the mean to clear the area but were instead threatened and chased” he said.’
j.Several YouTube videos. One video referenced a raid by three men on a Fiji police station in 2000. The other videos referenced the political history of Fiji including periods of unrest during coup activity.
Tribunal consideration
The applicant provided a candid and detailed narrative of his experiences in Fiji and Australia, and the Tribunal accepts the evidence of the applicant in relation to his experiences. The applicant also provided documentary evidence in support of his oral evidence.
The Tribunal does not accept the applicant’s submission that the country information shared by the Tribunal shows only the ‘good parts’, not the ‘bad parts’ and is not the ‘whole picture’. The Tribunal notes that the DFAT Country Information Report provides DFAT’s best judgment and assessment and is based on DFAT’s knowledge from a range of sources.[12] The Tribunal notes that the US Department of State Country Reports on Human Rights Practices are described as providing factual, objective information based on credible evidence.[13] The Tribunal considers these reports to be objective reports.
[12] DFAT Country Information Report Fiji 20 May 2022 page 5
[13] 2022 Country Reports on Human Rights Practices - United States Department of State
The Tribunal has had regard to country information regarding Fiji from a variety of sources, including from the material provided by the applicant. The Tribunal accepts that Fiji has a history of political volatility and that the country has experienced several coups. The Tribunal accepts that the current Fijian prime minister has previously led a coup. The Tribunal accepts that the former Fijian prime minister previously led a coup. The Tribunal accepts the country information that in relation to its security situation, Fiji is now generally stable and secure and that politics in Fiji today is no longer characterised by the unrest of the past. The Tribunal accepts the country information that the outcomes of 2018 and 2022 electoral processes were considered to be fair and reflective of the views of the population.
The Tribunal accepts the country information that there is a noted concern with police officers using excessive violence in the performance of their duties. The Tribunal accepts the country information that there has historically been concerns of impunity in relation to the military and police committing torture without sanction.
The Tribunal accepts that there has also been occasions where police officers have been harmed and even killed in the performance of their duties.
Fear of harm as a result of prior employment as a police officer
The Tribunal accepts that the applicant was a police officer in Fiji for many years. The Tribunal accepts that the applicant was well regarded within the police force. The Tribunal accepts this based on the letter of appreciation, the certificate of excellence, the training opportunities (including undertaking a course in Australia) offered to the applicant, and the longevity of his career with the Fiji Police Force.
The Tribunal accepts that the applicant was dismissed from the Fiji Police Force in February 2020 as a result of his failure to resign from the police force. The Tribunal accepts that the applicant has no intention to ever re-join the Fiji Police Force. The Tribunal accepts that the applicant has not had any contact from the Fiji Police Force or the Fiji Military Force, besides his letter of dismissal, in the last four years, during which time he has resided in Australia.
The Tribunal accepts that the applicant was threatened during his employment with the Fiji Police Force, including threats of physical harm to himself and his family if he continued with specific casework / investigation. The Tribunal accepts that the threats were threats of harm and death threats, but that these threats never eventuated to actual harm because the applicant ceased his investigation / casework. The Tribunal accepts that these threats occurred in 2006. The Tribunal is satisfied that these threats only arose in connection with the applicant’s employment as a police officer.
The Tribunal accepts that the applicant was subject to punishment as a result of failing to comply with work directions or as a result of challenging superior officers during his employment with the Fiji Police Force. The Tribunal accepts that this punishment included time spent at barracks and requirements to do demeaning physical activity such as star jumps, press ups and diving into muddy water in front of others. The Tribunal accepts that these incidents occurred in 2007 – 2011, and, accepts that the threats of punishment may have continued after this time. The Tribunal is satisfied that the applicant only faced punishment by way of demeaning physical activity, and threats of punishment, in connection with the applicant’s employment as a police officer.
The Tribunal accepts that the applicant was threatened by the military in his capacity as a police officer with the Fiji Police Force during the 2006 coup. The Tribunal accepts that the applicant was required to hand over his Glock gun to the military as a result of the threat. The Tribunal is satisfied that this threat only arose in connection with the applicant’s employment as a police officer in the context of the 2006 coup.
The applicant claims to fear harm based on these past incidents that occurred in connection with his employment as a police officer in Fiji. The applicant was dismissed from the Fiji Police Force four years ago and has no intention to re-join the police force. Given these past incidents occurred only in the course of the applicant’s employment as a police officer and given the applicant does not intend re-joining the Fiji Police Force if he returns to Fiji, the Tribunal considers there to be no likelihood of the applicant facing such incidents of threats or actual harm in the future.
The Tribunal accepts that it is possible that as a retired police officer the applicant may still retain knowledge / information from investigations he undertook in his role as a police officer, as would other retired police officers. The applicant fears harm upon return to Fiji by way of interrogation / torture / killing from the military or police because of information he acquired during his employment as a police officer. The applicant has had no contact, besides his letter of dismissal, from the Fiji Police Force or the Fiji Military Force since he has been in Australia. Based on this, the Tribunal considers that the police and military hold no current interest in the applicant.
Furthermore, despite consideration of a variety of sources of country information regarding Fiji, there is no evidence before the Tribunal to suggest that former or current police officers in Fiji are being questioned, interrogated or harmed by any authority in relation to information they may know from their employment as police officers. Accordingly, if the applicant returned to Fiji, now or in the foreseeable future, the Tribunal considers the chance of the applicant being harmed due to information he acquired in his role as a police officer to be remote.
The Tribunal found the applicant’s evidence, and the evidence of [Witness A] and [Witness B] in relation to random attacks on police officers to be vague and unconvincing and does not accept this evidence. Despite opportunity provided to the applicant following the hearing, the applicant did not provide any documentary evidence to support his claims of harm occurring to former police officers in Fiji. Although the applicant did provide a bundle of material to the Tribunal, the Tribunal was unable to find any relevance in the material to the applicant’s claims. Of some note, the applicant provided three articles that reference harm to police officers in Fiji. One article describes a police officer who died undertaking a swimming exercise with no consideration of foul play. There is no evidence before the Tribunal to suggest that this police officer was harmed by another person and as such the Tribunal does not consider this relevant to the applicant’s claims. The other two articles reference harm to police officers that has occurred in the course of their performance of their duties as police officers. The Tribunal does not consider these articles relevant to the applicant’s claims, given he does not intend to re-join the police force.
The Tribunal notes that the delegate considered that the applicant feared harm on the basis of political opinion due to his claims in his protection visa application form that the government had installed puppets to suppress anyone trying to go against them. The Tribunal notes that when the applicant lodged his claim for protection the Prime Minister of Fiji was Frank Bainimarama. At the date of the Tribunal hearing the Prime Minister of Fiji was Sitiveni Rabuka. At the hearing, the applicant did not claim any fear of harm due to political beliefs. He did not identify himself as being allied with any political party nor he did he identify himself as being against any political party. The applicant’s evidence was that the current Fijian prime minister and the former Fijian prime minister were both former coup leaders. The applicant’s evidence was that when he was a police officer he was unable to investigate some matters due to threats from the military / former government to stop investigating. The applicant’s evidence was that he considered the current government would harm him upon return due to his prior role as a police officer and information he had acquired in the course of his employment. The Tribunal does not consider that the applicant fears harm due to an actual or imputed political opinion, but rather the applicant fears harm based on his prior role as a police officer.
For the reasons outlined above the Tribunal is not satisfied that there is a real chance that the applicant would face serious harm from the Fiji Police Force or the Fiji Military Force if he returned to Fiji, now, or in the reasonably foreseeable future. For the same reasons the Tribunal does not accept there to be a real risk the applicant will be subjected to significant harm from the Fiji Police Force or the Fiji Military Force as a necessary and foreseeable consequence of the applicant being removed from Australia and returned to Fiji.
Fear of economic harm
The applicant has not expressly claimed he fears economic harm, however it may be implied he fears economic harm based on his evidence regarding his decision to stay with the Fiji Police Force, despite the challenging conditions, due to the good income he received. The applicant was clear in his evidence that he would be able to obtain employment if he left the Fiji Police Force, but that the pay would not be as good.
The applicant has been employed in both Fiji and Australia. The applicant has undertaken further study in Australia. I consider that if the applicant were to return to Fiji, now or in the reasonably foreseeable future, he would be able to find employment. Although the applicant may earn less money in future employment than what he previously earned in the Fiji Police Force the applicant would not be denied a capacity to earn a livelihood nor would he face significant economic hardship that threatens his capacity to subsist. As such, I am not satisfied that any economic harm faced by the applicant if he returned to Fiji now or in the reasonably foreseeable future would amount to serious harm. I am also not satisfied that any economic harm faced by the applicant would amount to significant harm considering the exhaustive definition of significant harm in section 36(2A) of the Act.
For these reasons the Tribunal is not satisfied that there is a real chance that the applicant would face serious harm as a result of economic harm if he returned to Fiji, now, or in the reasonably foreseeable future. For the same reasons the Tribunal does not accept there to be a real risk the applicant will be subjected to significant harm as a result of economic harm, as a necessary and foreseeable consequence of the applicant being removed from Australia and returned to Fiji.
Fear of harm as a person returned to Fiji who sought protection in Australia
In his protection visa application form the applicant expressed fear that the authorities of Fiji will not protect him because he has come to Australia and sought protection. The applicant did not expressly state that he feared harm from any specific person but that he would not be afforded protection. At the hearing, the applicant acknowledged this claim but did not elaborate on the claim.
The Tribunal accepts the country information that there is unlikely to be any official or societal discrimination against failed asylum seekers upon return to Fiji.
For these reasons the Tribunal is not satisfied that there is a real chance that the applicant would face serious harm as a result of being a failed asylum seeker if he returned to Fiji, now, or in the reasonably foreseeable future. For the same reasons the Tribunal does not accept there to be a real risk the applicant will be subjected to significant harm as a result of being a failed asylum seeker, as a necessary and foreseeable consequence of the applicant being removed from Australia and returned to Fiji.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION

The Tribunal affirms the decision not to grant the applicant a protection visa.
Alicia Bills
Member

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

[2024] AATA 1547

1 March 2024

Key Legal Topics

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Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction