2017344 (Refugee)

2017344 (Refugee) [2024] AATA 4099 (2 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2017344
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Gary Ledson
DATE:2 September 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.

Statement made on 02 September 2024 at 1:21pm
CATCHWORDS
REFUGEE – Protection Visa – Fiji – threats of physical violence and death from gang leader – applicant was past member of gang – police corruption – insufficient protection from authorities – complementary protection – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 499

Migration Regulations 1994, Schedule 2
CASES

Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 November 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 16 February 2020. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
The applicant appeared by video before the Tribunal on 24 April 2024 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Fijian and English languages, noting that the applicant requested to give evidence in English.
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.
Refugee criterion
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.
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 fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c).
For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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.
A person does not have a well-founded fear of persecution if effective protection measures are available (s 5J(2)) or if the person could take reasonable steps to modify his or her behaviour (s 5J(3)). 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.
Under s 5AAA of the Act, it is the responsibility of the non-citizen to specify all particulars of his or her claim for protection, and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act; Abebe v Commonwealth of Australia.[1]
[1] (1999) 197 CLR 510.
Complementary protection criterion
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.
The current DFAT report is the DFAT Country Information Report Fiji, dated 20 May 2022.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is owed protection under either the ‘refugee’ criterion in s 36(2)(a), or under the ‘complementary protection criterion’ in s 36(2)(aa) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.
Country of nationality
The applicant travelled to Australia on apparently genuine Fijian passport, a copy of which is on the Department file. He has at all times stated that he is a citizen of Fiji and has been assessed on that basis by the Department.
There is no evidence before the Tribunal that the applicant has a right to enter and/reside, whether temporarily or permanently, in any other country.
The Tribunal finds the applicant is a Fijian citizen and has assessed his claims against Fiji as his country of nationality and the receiving country.
Protection visa application
From the protection visa application, the applicant is a [age]year-old male citizen of Fiji, born on [date]. He declares his ethnicity is Fijian and is Christian. The applicant’s parents are Fijian; he is married and has two children, born in [year] and [year]. His parents, wife and children all reside in Fiji.
The applicant has completed primary, secondary and trade school education. On completion of his education, the applicant has worked in a number of occupations, and prior to arriving in Australia, worked as a [Occupation 1] in a [company].
The applicant arrived in Australia on [date] January 2020, travelling on a valid Fijian passport issued to him on [date] 2010, entering Australia on a valid Visitor (Subclass 600) visa granted to him on 8 November 2017.
On 16 February 2020, the applicant lodged an application for a Protection visa.
In his Protection visa application, he made the following claims:
Why did you leave that country(s)?
I left the country after I had been continuously harassed and intimidated by a money lender [Mr A], who have been demanding thousands of dollars from me for interests he's illegally added on an initial $500 that I loaned from him a year and a half ago. The intimidation has been life threatening, where strangers have come knocking on our door looking for me and threatening my wife and young children. Leaving the country only happened after I started encountering this problems with the money lender. I have had my Visa to Australia two years ago but had no real reason to leave since I had my wife and a [child]. Emotionally I am broken to be separated like this with my young family.
Did you experience harm in that country(s)?
Physical and Emotional
I have been attacked physically after confrontation with 3 men send by the money lender to collect money which I know is too much, from the $500 I had owed. I have actually paid more then $700, with the initial repayment of 10% of the amount owed. I had lagged a few times from repaying due to my personal financial difficulty, but they are demanding much more which the last time their demanding over $1,200. The person responsible is a money lender, [Mr A] who operates from the [a location], and has criminals who works as illegal baliff collecting and threatening people who owe money.
Did you seek help within the country or those countries after the harm?
I have gone to the police and they every time they said they can't do much as it is a civil case that I need to deal with myself. I believe the police have have they hands tied because most of the civil servants, include the police themselves owe money to these money lenders. That is the scariest part. The money lenders have been bold by sending men to my home....and the most recent was around Christmas, 2019 where the men came looking three times a day, for 5 days while I was working away in another town.
Did you move, or try to move, to another part of that country/those countries to seek safety?
Moving has been always been in my head but having a young family I need to be by mother side to help me and my wife when we need them. And besides, I do not have the financial capabilities to move my family to another new place. Being a small place, Fiji, the situation will not be different because the money lender will still have ways to hunt me down and continue to terrorise my family.
What do you think will happen to you if you return to that country or those countries?
Should I return to my country, the emotional and physical intimidation and problem will continue. It would reach a point where I or a member of my family could be hurt or killed or I would be pressured to physically hurt someone to protect my family and I.
Do you think you will be harmed or mistreated if you return to that country(s)?
I would be harmed by these criminal illegal debt collectors because they would not bend, knowing already that I have paid off my debt, and are still running after me.
Do you think the authorities of that country(s) can and will protect you if you go back?
I have gone to the police and they every time they said they can't do much as it is a civil case that I need to deal with myself. I believe the police have have they hands tied because most of the civil servants, include the police themselves owe money to these money lenders.
Do you think you will be able to relocate within that country/those countries to an area where you would not be harmed?
Moving has been always been in my head but having a young family I need to be by mother side to help me and my wife when we need them. And besides, I do not have the financial capabilities to move my family to another new place. Being a small place, Fiji, the situation will not be different because the money lender will still have ways to hunt me down and continue to terrorise my family.
The applicant was not invited to attend an interview with a delegate and, whilst invited to do so, the applicant did not provide any additional information or evidence about his claims prior to the primary decision being made.
On 6 November 2020 the delegate refused the application, finding that the applicant is not a person in respect of whom Australia has protection obligations as set out in s.39(2)(a) or s.36(2)(aa).
Application for review
On 2 December 2020, the applicant lodged an application for review of the delegate’s decision. The applicant also submitted a letter of support from his brother, [Mr B], dated 23 November 2020 and an employment contract between the applicant (as a [Occupation 2]) and [a company], dated 1 October 2020.
On 10 January 2024, the applicant was sent a pre-hearing information form to confirm his availability and to determine appropriate arrangements for him to participate in a hearing. as well as inviting him to submit any additional evidence or submissions in support of his claims. The applicant did not provide a response.
On 5 February 2024, the Tribunal wrote to the applicant informing him that it had considered the information before it and was unable to make a favourable decision on that information alone. Accordingly, the applicant was invited to appear before the Tribunal to give evidence and present arguments relating to the issues in his case. The hearing was scheduled for 5 March 2024 at 10.00am to be conducted by video using Microsoft Teams.
On 5 February 2024, the applicant wrote to the Tribunal seeking a postponement of the hearing and not before July 2024, indicating he did not have legal representation or assistance and was seeking a Fijian interpreter.
On 6 February 2024, the Tribunal wrote to the applicant advising that it had considered his request to postpone the hearing to July 2024, declining this request and rescheduled the hearing for 3 April 2024 at 10.00 am.
On 17 February 2024, the applicant wrote to the Tribunal again requesting a postponement of the hearing to July 2024. On 26 February 2024, the Tribunal wrote to the applicant advising that it had rescheduled the hearing to 24 April 2024 at 10.00 am.
On 26 February 2024, the applicant wrote to the Tribunal requesting that a hearing not occur before July 2024. The applicant stated that the hearing was important to him, he is still seeking legal representation; he may need to provide more information in relation to his claims; he is facing financial hardship and secured a new job and wanted to catch up on his bills.
The Tribunal considered the request for a further postponement of the hearing and the reasons for this request. However, given that previous postponements had already been granted, the Tribunal declined the request to postpone the hearing scheduled for 24 April 2024 at 10.00 am. The applicant was informed of this decision on 26 February 2024.
The application appeared before the Tribunal on 24 April 2024 at 10.00am by video link.
Evidence at the hearing
The applicant told the Tribunal he applied for a passport because he wanted to travel overseas and had travelled to [Country 1] for two weeks for his grandmother’s funeral in 2017. The applicant said that he had applied for his tourist visa in 2017 so that he could visit family in Australia but was unable to travel because he did not have sufficient money. The applicant confirmed he arrived in Australia on [date] January 2020 and shortly after applied for a protection visa. The applicant said he had assistance from a friend to complete his visa application.
The applicant said that his brothers helped him with his airfare to Australia. The applicant confirmed that he was living with an uncle in [Suburb 1]. He said since he arrived in Australia he has worked as [an Occupation 3] in Western Australia. He said that [he earns] about $4000 a week.
The applicant confirmed his addresses in Fiji. His family home in Suva until 2009 and [Town 1] with his in laws since 2009. His father died when the applicant was three years old. He has [siblings]. His mother left the family and moved to [Country 1] and he has not seen her in ten years. The applicant and his siblings had been raised and lived with his father’s family after his mother went to [Country 1]. One of his siblings lives in [Country 2] and the rest live in [Country 1].
The applicant confirmed that he had married in 2017 and has two children, one born in [year] and the second in [year] who live in Fiji and h is in daily contact with them. He confirmed that he had completed primary and secondary schooling and completed trade [school]. In Australia he has completed a number of certificates to enable him to [work]. Prior to coming to Australia he worked as a [Occupation 1]. When he arrived in Australia he initially worked in [Suburb 1] [building] . Since he has worked in [a field]. The applicant regularly send money to his wife in Fiji.
The applicant said his mother is [of specified ethnicity] and he is an indigenous Fijian and also a Christian. He has never been involved in Fijian politics and has never been arrested or detained for any reason. He confirmed that he was the only member of his family living in Fiji, the rest live in either [Country 2] or [Country 1].
The applicant told the Tribunal in 2018 because his son had broken his ankle and needed to be hospitalised. He had no money at the time and he borrowed money from a gang leader to cover his son’s medical costs. His income was insufficient to meet the costs of the surgery. The applicant borrowed said he had borrowed 500 Fiji dollars and the interest rate was 100 per cent being repaid 100 Fiji dollar every two weeks. He said that he had no other choice because he would not be able to obtain a loan from a bank. The applicant borrowed money from [Mr A] who was the head of the gang. The applicant said he has paid all the money he had borrowed plus interest since he had been working in Australia. The Tribunal asked why he would still be a target now that he has repaid the loan. The applicant said [Mr A] is still after him.
The applicant said [Mr A] did not like him because when he was beaten for not paying he had reported this to the police, and this is the reason that [Mr A] is still targetting him and he scared for his life if he returned to Fiji. The applicant did not have a copy of a police report and confirmed he had only gone to police once. He said that he was beaten in middle of 2019 and had suffered serious bruising but did not go to a doctor. The applicant said that when he went to make a further payment he was beaten because he had reported the beating to the police. The applicant said that he believed the police had told [Mr A] that he had gone to the police and that why he was beaten. The applicant said he started to get death threats from [Mr A].
Toward the end of 2019 the applicant said that the gang members went to his home looking for him but he was not home as he was away working. His family was not harmed.

The applicant said that he could not move to another part of Fiji to avoid the harm because he feared the gang would find him and kill him. The applicant said that before he got married he had actually been part of the same gang. He said that the gang had told his wife that he needed to be careful if he came back to Fiji. The application said his wife had been threatened even though he had repaid the money borrowed, because he had gone to the police . He said the last time this happened was two months ago and again his wife had been threatened, For this reason he had moved his wife, children and in-laws to another [Town 2]. Since that time his wife had not had any contact with the gang.
The applicant said [Mr A] wanted to harm him because he had reported the beating to the police. He said that he was scared to go to the police because he knew that the police would again tell [Mr A].
The Tribunal put the gist of country information about the capacity of the Fijian police to protect individuals and were usually effective. The applicant said that not all police were good and he believed they were dirty because when he was in the gang the police would get loans from [Mr A]. The applicant said the gang knew him from his time in the gang but because he had snitched on them he feared that he would be harmed by them.
The applicant said that his family had not had any contact with the gang members since he had moved them to [Town 2]. He had no other family in Fiji and there was no one who knew where he had moved his family. The Tribunal asked the applicant whether if he returned to Fiji he would be safe from the gang on [Town 2]. He said that the gang was big and they would be able to find him.
The Tribunal sked the applicant whether there was any other reason he feared returning to Fiji. He said the only reason was his fear of the gang. He did not believe that he could get protection from the police because they have connections to the gangs. He said there is a lot of corruption because he experienced this when he was in the gang. He said he was scared for his life.
The Tribunal asked the applicant whether he suffered any harm in the past. He said that he was treated differently by his uncle’s family. He was abusive and physically harmed the applicant. He said that he left his uncle’s home when he was [age], after he had completed his year 12 and joined the gang.
The applicant was in the gang for about 10 years but when he met his wife he quit the gang. And moved on with his life. He said that in the gang he had sold drugs, beat people up and dealing on the black market selling drugs. He had never been arrested.
The applicant said that he would struggle financially if he returned to Fiji, he wouldn’t be able to get work because most of the work is in the city where the gang operates.
FINDINGS AND REASONS
Does the applicant meet the refugee criterion?
If a person fears persecution for one or more of the reasons mentioned in s.5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s.5J(4)(a).
The Tribunal accepts the applicant’s claims in relation to the gang associated with [Mr A]. The Tribunal accepts that the applicant had been a member of that gang for 10 years. The Tribunal accepts the applicant borrowed money from [Mr A] and because of the punitive interest rate, leading him to owe substantially more than the original amount borrowed. The Tribunal accepts the applicant was late making repayments and for this reason he was beaten by [Mr A]‘s gang, an assault the applicant reported to the police. The Tribunal accepts the applicant left Fiji for reason of the harm feared by the applicant, if he returned to Fiji, because of threats of physical violence and death threats from [Mr A] and his gang for reporting his beating to the police.
Whilst the Tribunal accepts the applicant’s claims relating to his fear of harm from [Mr A] and his gang, if he were returned to Fiji, a refugee assessment requires a fear of persecution arises for one or more of the reasons in s.5J(1)(a) of the Act (race, religion, nationality, membership of a particular social group or political opinion) and that reason to be the essential and significant reason for the persecution as required in s.5J(4)(a).
However, in this matter, the Tribunal does not accept the applicant’s fear of harm is for one of the reasons in s.5J(1)(a). The Tribunal finds that the applicant’s fear of harm, if he returned to Fiji, is for reason of [Mr A] and his gang seeking revenge from the applicant for making a police report, and this is the essential and significant reason for the harm feared.
Accordingly the Tribunal does not accept there is a real chance the applicant would suffer serious harm from [Mr A] and his gang for an essential and significant reason set out in s.5J(1)(a) of the Act, now or in the reasonably foreseeable future.
Having regard to the applicant’s claims, the Tribunal is not satisfied the applicant has a well-founded fear of persecution under s.5J(1) of the Act if he returned to Fiji. The Tribunal is therefore not satisfied the applicant is a refugee and is not a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.
Does the applicant meet the complementary protection criterion?
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), namely whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk the applicant will suffer significant harm.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act (see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]).
It is accepted, a ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 279.
The Tribunal finds that the applicant, as a past member of [Mr A]’s gang, and a person who betrayed the gang members by reporting his assault by this gang to the police, would be targeted by them if he returned to Fiji. As found above, the applicant has a fear of harm from [Mr A] and his gang, however his fear of harm is not for a Convention reason. For the same reasons, the Tribunal accepts there to be substantial grounds for believing there is a real risk he will face significant harm from [Mr A] and his gang as a necessary and foreseeable consequence of being removed from Australia to Fiji. The Tribunal considers such harm would include ‘cruel or inhuman treatment or punishment’ and/or ‘degrading treatment and punishment’ as defined in s.5 of the Act.
An applicant is taken not to face a real risk of significant harm if the Tribunal is satisfied it would be reasonable for them to relocate to an area of the country where there would not be a real risk of significant harm under s.36(2B)(a). In this case the Tribunal finds that the real risk of harm faced by the applicant would extend throughout Fiji.
Fiji is a small nation and About a third of Fiji’s 330 islands are inhabited. According to the CIA World Factbook, the population is about 940,000. The two main islands are Viti Levu, where the capital Suva and tourist city of Nadi are located, and Vanua Levu. Half the population lives on Viti Levu and 57 per cent of the population lives in cities. Cities are relatively small; Suva, the largest city and capital, has fewer than 200,000 residents. The population is relatively young; more than 80 per cent of people are aged under 54 years[2]
[2] DFAT Report, page 6
Given the applicant’s evidence that he had moved his family and in-laws to [Town 2], the Tribunal accepts that he would want to live with his family if he returned to Fiji. Whilst the Tribunal does not accept that the applicant’s return would be immediately known by [Mr A] and his gang, it finds that it would become known, even if he attempted to live in another area or any other of the country’s inhabited islands.
DFAT reports that policing in outer islands and more remote places is more difficult because of the greater influence that the chief-based hierarchy has in the outer regions[3]; and Fiji is geographically small and land is held tightly in kin groups, which limits internal relocation in practice. Even Suva, the largest city in Fiji, has only a small suburbia and few relocation options. Movement to another island is possible but in practice most relocation is to urban centres from other islands.[4]
[3] DFAT Report 2022, p.23.
[4] DFAT Report 2022, p.25.
Having regard to the applicant’s circumstances and the relevant country information, the Tribunal finds that there is no part of Fiji to which the applicant can relocate where there would not be a real risk he would suffer significant harm. Considered cumulatively, the Tribunal accepts that relocation is not reasonable for the applicant and s.36(2B)(a) does not apply to him.
An applicant is also not to be at a real risk of harm where they could obtain, from an authority of that country, protection such that there would not be a real risk that they will suffer significant harm: s.36(2B)(b). The applicant gave evidence that when he reported his assault to the police he was beaten by members of [Mr A]’s gang for ‘snitching’ on them. The applicant’s evidence is that [Mr A] and his gang have connections to allegedly corrupt police within the Fiji Police Force who informed the gang the applicant had made a police report against them. The applicant said, given he had previously been a member of [Mr A]’s gang, he did not have confidence that the police would provide protection from the harm he fears from [Mr A] and his gang if he were to return to Fiji.
On the availability of state protection in Fiji, the current DFAT report states:
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’.
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.
Corruption in the FPF is reported, but DFAT understands that it is not widespread. There are some allegations of corruption and DFAT is aware of pockets of corruption that have later been exposed and investigated. Complaints about the FPF are made to the Human Rights and Anti-Discrimination Commission.[5]
[5] DFAT Report 2022, p.22
On corruption in the Fiji Police Force, several recent articles indicate that corruption in the police force is an ongoing problem and whilst the law provides criminal penalties for corruption, the Fijian government does not implement the law effectively.[6]
[6] Fiji Country Security Report, The Overseas Security Advisory Council, US Department of State, 14 June 2023
Further, a University of the South Pacific academic is quoted as saying corruption is rife within the Fiji police force because they're underpaid, and young policeman are being tempted to compromise their morals. It comes as 28 Fijian Police officers were charged with drug related offences involving unlawful possession of illicit drugs.[7]
[7] RNZ, Corruption is rife within Fiji police force – academic, 31 August 2024
Finally, from the Fiji Times, 25 June 2024:
Salaries of police officers could be a cause of corruption within the Fiji Police Force especially when dealing with drug lords that could pay officers thousands of dollars.
Acting Deputy Commissioner of Police and the director Strategic Planning Research and Development ACP Sakeo Raikaci said the disparity in the pay of police constables and the money they could acquire from feeding information to drug lords was immense.
If you have to fight corruption it is the involvement of the dollar,” said ACP Raikaci.
“I cannot say that the Fiji Police Force is free from corruption because we have already charged police officers for corruption but maybe one of the causes is because of our salary.[8]
[8] The Fiji Times, Raikaci: Salaries of police officers could be cause of corruption, 25 June 2024
Having regard to the country information, and the circumstances of the applicant’s assault after he made a complaint against [Mr A] and his gang, the Tribunal is not satisfied that the police force would offer a level of protection that would reduce the risk of significant harm to something less than a real one.[9] Accordingly, the Tribunal considers that the applicant would not obtain sufficient, effective protection from the Fijian authorities, such that there would not be a real risk that he will suffer significant harm. Therefore, s.36(2B)(b) does not apply to him.
[9] MIAC v MZYYL (2012) 207 FCR 211 at [36].
Finally, the Tribunal is satisfied that the real risk faced by the applicant is one faced by him personally and not faced by the population of the country generally. Therefore s.36(2B)(c) does not apply to him.
The Tribunal has substantial grounds for believing that, as a necessary and foreseeable consequence of the First Applicant being removed from Australia to a receiving country, there is a real risk that he will suffer significant harm; Australia therefore has protection obligations, per s.36(2)(aa).
CONCLUSION
For the reasons given above, the Tribunal is 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 satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.
Gary Ledson
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 4099

2 September 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Jurisdiction

Remedies

Statutory Construction

Natural Justice