2103132 (Refugee)

[2024] AATA 3861

2103132 (Refugee) [2024] AATA 3861 (28 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Sunny Pratap Chandra (MARN: 0959742)

CASE NUMBER:  2103132

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Lisa Lo Piccolo

DATE:28 June 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 28 June 2024 at 3:19pm

CATCHWORDS

REFUGEE – Protection Visa – Fiji – political opinion – a SODELPHA supporter – political affiliations including his involvement, support and association with Sodelpha – mild PTSD – does not accept that the applicant was an active supporter of the SODELPHA party – applicant had provided inconsistent and contradictory information – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 424, 425, 417, 499

Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs (the Department) on 16 February 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Fiji, applied for the protection visa currently under review on 25 November 2019 and was granted an associated bridging visa A.[1]  The delegate refused to grant the protection visa on the basis that the applicant did not satisfy s 36(2) of the Act. 

   [1] Department delegate decision, Tribunal file 2103132, Doc ID no: 8204600.

3. The applicant appeared before the Tribunal on 23 April 2024 by video link (first hearing), and in person on 8 May 2024 (second hearing) to give evidence and present arguments. The Tribunal also heard evidence from [Mr A]. 

4. The applicant was represented in relation to the review.

The applicant’s personal background

1. The applicant is a [age]-year-old indigenous Fijian man from [town] in Fiji.  

2. In his Protection visa application, the applicant claims to speak, read and write Fijian and English, and to speak Hindi.  He undertook his primary and secondary education in Fiji.  He states that he has no relatives in Australia or overseas including parents or siblings who are not included in his protection visa application.  He also states that he has one aunt in Australia as a personal contact.  However, he told the Tribunal that he has parents, and two sisters live in Fiji, and his uncle [Mr A], who lives in [City 1 Australia] with his family. 

3. The applicant arrived in Australia on a Tourist FA 600 Visa on [date] September 2019 which ceased on [date] December 2019.[2] 

   [2] Ibid.

4. The applicant gave evidence that since arriving in Australia he has worked in many different jobs.  He submitted payslips and tax returns which evidence that he has worked on a [farm] employed first by the [a company], and then by [another company].  He also submitted documents which evidence that he currently works for [a company] and has been assessed for, and issued with, a licence to perform high risk work.  He is also studying [a] course and was scheduled to complete [another] course not long after the resumed hearing.

5. He also regularly attends the [Church 1] and is involved in outreach events and [a] group.  [Pastor B] sent an email stating the applicant is a pleasant and reliable member of the church and recommended him ‘for anything he applies for’.  The two leaders of the [Group] at the church provided a reference letter supporting the applicant’s migration to Australia.

1. The Tribunal accepts these matters to be true.

CRITERIA FOR A PROTECTION VISA

1. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth). 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

1. 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.

2. 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).

3. 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.

4. 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) and (c).

5. 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.

6. 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.

7. 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 is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim.[3]  The Tribunal also 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.[4]

   [3] See ABT16 v Minister for Home Affairs [2019] FCA 836.

   [4] Abebe v Commonwealth of Australia (1999) 197 CLR 510.

Complementary protection

1. 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’).

2. Section 36(2A) of the Act makes provision for, and exclusively defines that a

   
   

   non-citizen will suffer significant harm if: they will be arbitrarily deprived of his or her life; or the death penalty will be carried out on the non-citizen; or the non-citizen will be subjected to torture; or the non-citizen will be subjected to cruel or inhuman treatment or punishment; or the non-citizen will be subjected to degrading treatment or punishment.[5]

   [5] Torture, cruel and inhumane treatment or punishment and degrading treatment and punishment are further defined in s 5(1) of the Act.

3. The circumstances in which a person will be taken not to face a real risk of significant harm are set out in s 36(2B), which states the Minister is to be satisfied: that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm (s 36(2B)(a)); or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm (s 36(2B)(b)); or the real risk is one faced by the population of the country generally and is not faced by them personally (s 36(2B)(c)).  The term ‘population of the country generally’ refers to the commonly understood concept of the general population, such that there is no requirement that the risk be faced by all members or every citizen of a country’s population for s 36(2B)(c) to apply.[6] However, s 36(2B)(c) requires a decision-maker to determine whether the risk faced by an applicant is a risk faced by the population of the country generally, not to the population in a particular area of the country such as a particular city or province.[7]

   [6] BBK15 v MIBP (2016) 241 FCR 150 at [32].

   [7] The reasoning in BBK15 and other Federal Court judgments (SZSPT v MIBP [2014] FCA 1245 and MZAAJ v MIBP [2015] FCA 478) indicates that s 36(2B)(c) will apply where a real risk is faced by an individual applicant but is the same as the risk faced by the general population.

Mandatory considerations

1. 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.

2. The current DFAT report is the DFAT Country Information Report Fiji dated 20 May 2022 (DFAT Report).

Country of nationality

1. The applicant claims to be a citizen of Fiji.  He travelled to Australia on a valid Fijian passport and state that he is a national of Fiji. In addition to providing a copy of his now expired Fijian passport, which was issued on [date] 2012, the applicant also provided a copy of his Fiji Provisional Drivers Licence, his NSW Photo card, his interim Medicare card and his Heavy Vehicle Drivers Licence. 

2. The Tribunal finds on the evidence, that the applicant is a Fiji citizen and has assessed his claims against Fiji as his country of nationality and the receiving country.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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.

2. The Tribunal has before it the Department’s file relating to the applicant. In addition to all of the oral evidence, the Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources. This includes, but is not limited to, the following:

   -The applicant’s Protection visa application and identity documents.

   -Submissions of the applicant’s representative dated 2 January 2024.

   -Written reference from [Mr A] dated 1 January 2024.  The Tribunal notes that [Mr A] gave evidence in line with his written reference.

   -Reference letter from [Pastor B] [Church 1] dated 3 January 2024.

   -Undated written character reference from [Church 1] submitted 4 January 2024.

   -Tax returns for years ending 2021, 2023 and 2023 and recent payslips, as well as other work and

   -Photos of the applicant attending a protest rally in September 2019

   -The applicant’s 424AA written response dated 22 January 2024.

   -Email from the applicant regarding his claims for protection dated 21 March 2024.

   -Video recording on the [social media] account of [Mr C] from 2019 (in Fijian) of the applicant being interviewed by [Mr C] regarding Former Prime Minister Frank Bainimarama (Bainimarama) as well as [social media] video comments.

   -Translations of [social media] video and comments.

   -Letter from clinical and forensic psychologist, Dr [D] dated 3 April 2024.

3. In addition to the oral evidence given at the hearings, the Tribunal has considered

4. The Tribunal notes that in the ‘Response to hearing invitation’ dated 9 December 2023, the applicant indicated that he would also be relying on a statement from [Mr C] ‘with whom [the applicant] did a protest in Canberra’.  The Tribunal raised the absence of that statement at the first hearing and was informed that the applicant did not have a statement from [Mr C].  At the time of the decision, no statement or evidence has been submitted to the Tribunal from [Mr C].

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

Protection claims

1. According to the Protection visa application, the applicant’s claims are as follows:

   -He left Fiji to visit his aunt.  It was an opportunity for him to experience a democratic country and freedom to be able to openly discuss political issues and criticise the Government without fear of someone reporting him to the Government.

   -He fears returning to Fiji and being tortured and bullied by his own.  He experienced harm in Fiji when he was kicked and punched for being included in the SODELPHA Youth.  The police officers and soldiers hunted them down to stop them to stop them from going in groups to support their party.

-He did not try to relocate because it is hard to find a job in Fiji to suit his credentials.  Moving was not an option considering his debts and expenses because the cost of living is high and moving would have meant settling for lower salary base.

-Military coups have affected his life greatly and he decided to stay in Australia because he does not want to be a victim of political upheavals that have been happening in Fiji.  His basic rights will be deprived, and he will be tortured, punched, and kicked by the soldiers since he is supporting the opposition party as a youth expressing his view on what is best for Fiji.

-If he returns, he will be harmed and mistreated by the Government.  He fears being tortured and bullied in his own country and that is the main reason he left Fiji.  He will not be able to voice his complaints about how he is treated and will be living in fear for the rest of his life.

-He will not be protected by the authorities in Fiji as they are corrupt and since he is supporting SODELPHA, he and his rights will never be protected.

-He will not be able to relocate because Fiji is a small country, and it is easy to be hunted down and he will be mocked at the Army barrack.

1. On 5 December 2019, the Department sent the applicant an acknowledgment of valid application letter which advised him that he could provide additional information relating to his claims. 

2. Prior to the delegate’s decision, the applicant did not provide any other information or documents in support of his claims, and the applicant was not invited to attend an interview.   

Tribunal review application

1. On 12 March 2021, the applicant submitted to the Tribunal his application for review of the Department delegate’s decision refusing his Protection visa.  Attached were the following documents:

   -A copy of the delegate’s refusal decision and notification.[8]

   -MR5 form appointing Mr Chandra as his representative.

   -A copy of his passport, NSW photo Card, interim Medicare card and Republic of Fiji Provisional licence.

   [8] Ibid.

2. On 4 December 2023, the applicant was invited under s 425 of the Act to appear before the Tribunal on 8 January 2024 at 9.30am.  The applicant was in Queensland at the relevant time, so the Tribunal arranged for him to appear before the Tribunal by video link.

3. On 2 January 2024, the representative submitted to the Tribunal a written submission which can be summarised as follows:

   -The applicant maintains that as a SODELPHA supporter he partook in political rallies in Fiji and was subject to violence such as being punched and kicked by soldiers in Fiji.

   -He experienced harm in Fiji and Police and soldiers hunt down youth such as the applicant and break up their groups in violent means.

   -He referenced the 2017 DFAT report (cited in the delegate’s decision) which relevantly assessed ‘high profile figures’ who are seen to challenge the Government’s authority or undermine its legitimacy are at risk of negative attention such as arrest or detention.  It also indicated that on 26 June 2017, Jope Koroisavou, a SODELPHA Young Leader was arrested and detailed for 48 hours after he carried placard cards in Suva for justice in torture case.

   -DFAT Report 2022 confirms there is still a moderate risk of violence in the form of police brutality.  The representative noted that a risk of less than 50% or even a risk of 20% is still a risk, according to Mason J.

   -DFAT Report 2022 assesses that protesters in general may be prevented by the State from lawfully protesting.  DFAT assesses that protesters may face a low risk of official discrimination but notes that such discrimination is not impossible.  There is also a moderate risk of violence in the form of police brutality.

   -DFAT Report 2022 Fiji has had a turbulent history with 4 coup d’état in recent history. The main opposition party in Fiji is SODELPHA who draws support from iTaukei.  Former SODELPHA leader and former Prime Minister Siteveni Rabuka has established the People’s Alliance Party to context the next election.

   -The applicant fears returning to Fiji because of the risks of violence because of his political affiliations.  He continued his association with SODELPHA in Australia by participating in a demonstration in Canberra.  He was video recorded and provided his name and address.  The submission indicated that the video was attached to the email sent to the Tribunal.  It was not.

   -The applicant acknowledges that the current Government majority party is SODELPHA but fears this could change at any time as political turbulence and demonstrations continue and if he is forced to go back to Fiji, he will face a real moderate risk of violence in the form of police brutality.

-He fears this targeted information may already be in the hands of those inimical to the party thereby increasing his level of risk to cruel or inhuman treatment at the hands of political opponents.  Such treatment may constitute degrading treatment or punishment to the applicant possibly meted out by the police or soldiers with the actual subjective intention to inflict severe pain, or some level of pain and suffering.

1. On the same day, the representative also submitted a written reference from [Mr A] dated 1 January 2024.  [Mr A] is the applicant’s uncle and stated that the applicant had applied for protection because of his political affiliations with SODELPHA when it was then in opposition in Fiji.  He stated his understanding that the applicant’s protection claims may now be in doubt because of the change of Government in Fiji.  However, the applicant is still fearful that the situation could change in Fiji, and he could again be in danger if he is forced to go back to Fiji.  [Mr A] referenced the contributions he believes the applicant could make and has made to Australia and hoped his application would be looked upon favourably. 

2. The representative also submitted the references and pay information referenced in paragraph 27 above.

Evidence at the first hearing

1. At the first hearing on 8 January 2024, the applicant gave the following evidence:

   -He arrived in Australia on [date] September 2019.  He also visited Australia in 2009 for 2-3 months for his cousin’s birthday and went to [another country] in 2015 for a Church youth conference.

   -He was involved in SODELPHA political party in Fiji.  He was part of a group protesting in Suva about there being no work and low pay and how Government is a mess.  He became involved in 2015, 2016, and 2018.  When the Tribunal asked how old he was when he was involved in the protest, he said ’[age] or [age] years old’.  The Tribunal then queried the timeline of the protest and his involvement in SODELPHA based on his age indicating that he would have been [age]- or [age]-years old back in 2013 or 2014.  The applicant said he was not sure.

   -He is a supporter of the party and wanted change with the Government.  He said he was fighting for ‘our people’ and ‘our young people’, changes had to happen because of how corrupted Fiji ‘is’.  He ‘thinks’ he is a member of the SODELPHA party by then confirmed he is not a member of the party and never has been.

-He was involved in SODELPHA Youth.  He did not go to regular meetings or regular gatherings.  He just followed what ‘they wanted us to do’.  When the Tribunal asked for clarification, he said he is referring to the people leading the protest.  He does not know Jope Koroisavou but he was one of the Youth Leader member’s back then.  He was not involved in protests often because he was working.  He said he had ‘probably been involved in two protests.  Then said he attended only the one protest when he was [age] or [age] years old – so in 2013 or 2014 when he was punched and kicked. 

-He never had any contact with Bainimarama or any of his members of Parliament. 

-The one protest he was involved in occurred in Suva.  He cannot recall the exact date just that they were protesting about justice.  15-20 people were involved at [a location]. They were holding placards.  The police attended and tried to scramble them to go away.  It all happened fast, and he was punched and kicked by soldiers to try and get them to move away.  He is not sure who punched/hit hm but in Fiji, police just punch if their words don’t work.   He was then hunted down by the police who cuffed ‘them’ when they located ‘them’ and took them by car to the police station on the roadside.  The police hit them along the way, and he got injuries on his ribs.  It wasn’t that bad, and he did not seek any medical attention.  When they arrived at the police station, the police just told them to go away.

-He went to the police to report what happened but was told they were just kids and had to listen.  He also went with a friend to the Fiji Human Rights Commission but again was told they are just kids and there was nothing urgent to make a complaint.

-He continued to be involved in SODELPHA Youth until 2013 or 2014.

-He participated in a rally in Canberra one month after he arrived.  The rally was organised by [Mr C].  He met [Mr C] the day before the rally when they went to his house in Canberra to drink kava.  He did not know he was going to do a rally: it was not planned.  He was not sure where the rally was, but it was supposed to be close to where Bainimarama was staying during his visit to Australia.  He did not see Bainimarama.  The Tribunal queried the dates noting the photographs suggest the rally occurred on 15 September 2019, and the representative stated it was 19 September 2019.  The applicant did not know.

-A video was taken by [Mr C] and the applicant was interviewed about how the Government had gotten worse and under the Bainimarama leadership everything is corrupt.  The applicant gave his name and address in Australia and the video was streamed live on [social media].

-He is scared to return to Fiji because of the rally and the video is on the internet and includes his name.  There are still people in favour of the former Government, and anyone can target anyone, and he is scared of being hurt or killed by whoever is supporting the former Government including those who made comments on the [social media] post.  People in the comments were saying ‘we will wait for you to come back’ and ‘you are lucky you are there’ and ‘you would be stabbed’. 

-He is scared because the Government could change any moment.  The Tribunal put country information to the applicant indicating that the Government has changed, things are stable, re-entry bans had been lifted and there is no country information indicating that there was retort from former supporters of Fiji First or Bainimarama.  The applicant agreed that the Government is ‘stable for now’ but said this might change.  He said it was good if re-entry bans were being lifted but chose to make no comment on retort from former supporters.  He said he is scared to go back to Fiji because he does not know what will happen to him.

1. At the close of the evidence, the Tribunal stood the matter down to enable the applicant to email through the Tribunal a copy of the [social media] video.  When the hearing resumed, the applicant immediately told the Tribunal he was scared and not sleeping and believes he has post-traumatic stress disorder (PTSD).  The Tribunal expressed concern as to why these claims had not been made previously and queried whether the representative had discussed this with the applicant in the Member’s absence during the short adjournment.  The representative conceded that he had had a conversation with the applicant.  He then submitted that the applicant needed time after the first hearing to see a psychologist to assess if he is suffering from PTSD. The Tribunal granted the applicant an extension until 29 April 2024 to provide a psychologist’s report or any other evidence he wished to rely upon.

424AA

1. The Tribunal put information to the applicant under 424AA of the Act regarding his previous travel to Australia.  Departmental records indicate the applicant travelled to Australia on [date] November 2013 and [date] October 2018.  Both visits occurred after he claims he was subject to violence from soldiers and or police in Fiji as a result of his involvement in a protest in Suva, and he was able to exit and return to Fiji without incident January 2014 and January 2019, and did not seek protection on either occasion.  The Tribunal put to the applicant that this may lead the Tribunal to conclude that he was not at risk.  The applicant responded that seeking protection did cross his mind on the first two occasions he returned, but the government was getting worse in Fiji when he left the third time and ‘by accident’ he was then involved in the protest in Canberra shortly after he arrived.  He said he is tough but when he did the protest here it made him a lot more scared because Fiji is a small country, and everyone knows everyone and that is why he now is scared to go back.

2. At the request of the representative, the applicant was also granted time to provide a further response in relation to the information put under s 424AA.  On 22 January 2024, the representative submitted the following response:

   -The applicant did come to Australia on 3 occasions but does not remember the dates.

   -The applicant acknowledges he was able to exit out of and return to Fiji without undue trouble on the first two occasions and this may lead the Tribunal to conclude that he is not at risk.

   -The situation has changed because the applicant was involved in a political rally in September 2019, where he was photographed and questioned, and a video recording was made.

   -The applicant fears that the video has been circulated in social media in Fiji and would have been seen by people inimical to his party and himself.  Based on this fear, he lodged his Protection visa application on 25 November 2019.

   -He fears the information may already be in the hands of those inimical to him and his party, increasing his level of risk to cruel and inhuman treatment by his political opponents and or official enforcement agencies.  Such treatment may constitute degrading treatment or punishment possibly meted out by the police and or soldiers with the actual subjective intention to inflict sever pain, or some level of pain or suffering, or cruel, inhuman or degrading treatment or punishment.

   -The applicant has painful memories of the harm he experienced in Fiji and he fears returning to Fiji.

   -The applicant has registered to see a psychologist because his state of mind is a relevant consideration in any consideration under CAT and the ICCPR in accordance with Ministerial Direction 84.

[Social media] video and comments

1. On 20 February 2024, the Tribunal wrote to the applicant and requested that he provide an accredited translation of the [social media] video and comments if he wanted them to be considered by the Tribunal as part of his application for review.

2. On 12 March 2024, the applicant provided an accredited translation of the interview in the [social media] video.[9]  Relevantly, the applicant is noted to be ‘man 3’ in the translation and person taking the video is noted as ‘recorder’.  In the interview, the applicant says the following in the Fijian language:

   [9] Translated video link, Tribunal file 2103132, Doc ID no: 12287295 and 12234109.

   ‘…

   Man 3: Hi, my name is [Mr A given name].  I’m originally from [town].  I live in [City 1, Australia].

   …

   Recorder: … From you (man 3) any ideas regarding youths.

   Man 3: I just want to say Prime Minister your leadership is not beneficial no more, we hate you, we don’t want you to lead us.

   Recorder: Sorry explain what is it that you don’t like in his leadership.

   Man 3: Employment in Fiji there’s no pay rise and food prices are increasing.

   Recorder: Unemployment is what you are saying?

   Man 3: Robbery is increasing, murder, drugs, and there’s no change seen. That’s all I have to say.

3. On 21 March 2024, the applicant submitted an accredited translation of the [social media] in an email which stated:

   ‘.. [A]s you can see [it’s because of] comments like this that I feel threatened and with Bainimarama or his followers is why I’m scared and afraid that I might be hurt or worse killed.  I saw on tv that he was found guilty of perverting the course of justice, if he do that from Fiji during his leadership then he can do anything to people like me who protested here in Australia and that’s why I’m scared of going back.’

4. The Tribunal notes that the translated [social media] comments comprise multiple pages.[10]  Whilst these have not been outlined in this decision, the comments were discussed with the applicant at the second hearing at length.

Medical evidence - Dr [D]’s letter

[10] Translated video link and comments, Tribunal file 2103132, Doc ID no: 12287295.

1. On 8 April 2024, the applicant submitted a letter from clinical and forensic psychologist, Dr [D] dated 3 April 2024.  Her letter indicated that she had conducted two clinical interviews with the applicant.  Her letter does not indicate the date of the first interview, but states that the second interview took place on 3 April 2024.  She indicated that two issues have been raised for her consideration:

   -first, what is the likely effect on the applicant’s mental health and emotional well being if he was forced to return to Fiji? and

   -second, what is the chance of the applicant recovering if he stays in Australia and will he need medication for anxiety and post-traumatic stress disorder?

2. Dr [D] provided the following summary of what the applicant told her at their first session (omitting biographical information and other background details):

   -No history of mental health in his family.

   -His parents are in Fiji and he has extended family in Australia including his maternal uncle who he staying with.

   -In around 2018, he was part of a protest in Fiji before the government changed.  The police attempted to disband the protest and the applicant was arrested and placed in the back of the police care and taken to the police station.  He was punched in the ribs by one of the police officers.  He was scared he was going to be killed.  His fear was later exacerbated when he saw a video of a prisoner in detention who had escaped and was badly tortured by police officers when he was later arrested.

   -Around 4 years ago, he was involved in a protest rally in Canberra.  The protest was videoed, and the applicant is scared about his safety if he returns to Fiji.   The applicant feels that the Fiji government may hold this against him.  He is aware of police being involved in torturing people who absconded from jail.  He does not want to be in trouble with police.

   -He reflected that the government in Fiji is good now, but he is concerned it may change.

   -He has enjoyed good health but sometimes has dreams of being stabbed which arises from his fear of returning to Fiji.

3. Dr [D] reported that the applicant was personable and able to present well, and did not present as having an anxious temperament, although he was observed to have fear of returning to Fiji in light of his concerns for his safety.   She reported that:

   -‘[the applicant’s] responses to the Personality Assessment Inventory (PAI, whilst not completely valid in light of some inconsistency of similar items possibly due to reading difficulties, are considered to be consistent with observation and [her] forensic interview with [him].  You are considered to be presenting with mild [PTSD] symptoms in the light of your experiences in Fiji and you fear for your safety should you return to Fiji. You have been exposed to traumatic stress, but your pre-existing strong psychological health has been a protective factor for you. You are also presenting with an adjustment disorder with Depressed Mood.’

4. Dr [D] then provided the following answers to the questions that were raised for her consideration by the applicant’s representative:

   ‘What is the likely effect on [the applicant’s] mental health and emotional well-being if [he is] forced to return to Fiji?

   Clinically, I am of the opinion that should [the applicant] be forced to return to Fiji, this would impact very adversely upon [his] mental health and emotional well-being. It is considered that based on [his] account of [his] participation in the protests in Fiji and then later in Australia and [his] fear of [his] details being online within the context of [his] understanding of the negative view taken of the protestors by the Fijian Police, that [his] mild symptoms of PTSD would be significantly exacerbated with [his] emotional well-being being significantly adversely impacted.

   What is the chance of recovering if [the applicant] stay[s] in Australia and will [he] need medication for anxiety and posttraumatic stress disorder?

   It is clinically considered that in the light of [the applicant’s] strong pre-existing psychological health along with [his] strong support network in Australia both in [his] private life and [his] work life, that [the applicant] ha[s] an excellent chance of full recovery if [he] stay[s] in Australia. I am not able to comment on medication. I am of the opinion based on my understanding of [the applicant’s] presentation, that in the event [he is] able to remain in Australia, [he] will be a strong economic and personal asset to this country due to your strong work ethic and your considered excellent personal values.

Evidence at the second hearing

1. At the second hearing on 8 May 2024, the applicant gave the following evidence:

   -The protest took place near the gate of where the Bainimarama was supposed to be staying during his visit to Canberra.

   -[Mr C] took the video and the applicant was randomly approached him to speak about ‘what he thinks’.  He was asked to speak’ ‘probably because he was younger’ and wanted ‘the younger generation perspective’.

   -The video was streamed on [social media] live in September 2019 and posted on [Mr C] [social media] page.

   -He has not participated in any other protests. 

   -He did not vote in the 2022 election because he did not know how to do it.  He then said he ‘thinks’ he did vote and then said he did register to vote and voted.

   -Dr [D]’s summary of their first session is accurate. 

   -He went to see Dr [D] for the purposes of getting an assessment of whether he has PTSD so he can submit it to the Tribunal.  He had two sessions with her for this purpose.  He has not seen her since then and has not seen any other medical practitioners in relation to PTSD or depression.  After the Tribunal’s enquiries, he the stated that he is now considering making another appointment to see Dr [D].

   -He is scared to return to Fiji because he is scared of being harmed by the supporters of Bainimarama, those who commented on the [social media] video who are supporters of Bainimarama, and anyone in the police force.  As a result of the [social media] video, he fears the police will harm him ‘because of his PTSD’.  He said he ‘has no idea’ why it would happen to him but because of what happened the last time ‘when he was roughed up by the police’, ‘he is scared the police will hurt him or he will, at worst be killed’.  The Tribunal questioned this, referring to country information.  The applicant said, even though he knows the Government has changed he is still scared.

   -The Tribunal put to the applicant the remoteness of the risk of harm to him because he does not have a political profile and DFAT country information suggests it is only high-profile people who are of interest to the government and supporters of SODELPHA are not at risk.  He agreed he does not have a known profile in Fiji.  The Tribunal asked him if he believed he was well known in Fiji.  He did not comment.

2. The Tribunal raised aspects of the representative’s written submissions with the applicant for comment which appeared to be exaggerated and inconsistent with the applicant’s claims.  Specifically, that the applicant partook in ‘political rallies’ in Fiji (i.e., more than 1) in Fiji, had ‘political affiliations with SODELPHA and continued his association with SODELPHA by participating in a demonstration (protest) in Canberra.  The applicant agreed that these statements were incorrect.  He gave evidence that, he was only ever involved in one protest in Fiji, he was a supporter of SODELPHA but was not a member of the party and did not have political affiliations with them, and he did not ‘plan’ to participate in the rally in Canberra.  The Tribunal notes that the representative’s submissions had been certified and signed by the applicant as being based on his instructions and information he provided to his representative.[11]

   [11] Written submissions dated 3 January 2024, Tribunal file 2103132, Doc ID no: 11933197.

3. The Tribunal also discussed with the applicant, what he told Dr [D] at their first session regarding his participation in protests in Fiji and in Australia, and his fear for his safety if he returns to Fiji (and is enumerated in her summary of their first session).  The Tribunal put to the applicant its concerns that what he told Dr [D] is inaccurate, and/or inconsistent with his claims in the Protection visa application and the evidence he gave at the first hearing.  After a detailed exchange with the Tribunal, the applicant conceded that he gave Dr [D] incorrect information.  Specifically, that:

   -He attended a protest in Fiji in 2018 whereas he told the Tribunal he attended a protest in Fiji when he was [age] or [age] years old which was in or around 2013 or 2014.  The applicant said he ‘told her the wrong date’ and he ‘sucks’ at dates.  The Tribunal put to him that this error is not explained by forgetting dates in circumstances where there is a 4–5-year difference.

   -He is scared to return to Fiji because of the reported corruption in the Fijian government.  He told Dr [D] his fear of returning to Fiji was exacerbated when he saw a video of a prisoner in detention who absconded being badly tortured by police after he was arrested.  The applicant made no mention of this at the first hearing.  The Tribunal queried whether he told Dr [D] that he was protesting in favour of the government that is now in power in Fiji (and part of the tripartite government), and the instances of corruption he was referring to, were the actions of police during the reign of the former government.  The applicant said he ‘loosely’ referred to the government and conceded that he did not say he was talking about the former government.

   -He told Dr [D] that he was arrested by police in 2018, punched in the ribs by one of the police officers and was scared he was going to be killed.  He did not tell the Tribunal he was arrested by police or afraid he would be killed.  On the contrary, he said, ‘it wasn’t that bad’ and when they arrived at the police station, ‘the police just told them to go away’.  The applicant explained that he said these things because Dr [D] was asking him questions like ‘how [I] was feeling and what was going on in [his] head at the time because she was trying to find out where the PTSD came from.’

1. The Tribunal also discussed the [social media] comments with the applicant noting that he was not threatened in the comments or criticised by people supporting the former Government.  The following observations were put to the applicant:

   -Many [social media] comments comprised vulgar language and were rude and derogatory.  However, most were direct exchanges between commentors.  In other words, one commentor directly responding to another commentor using rude, negative and/or derogatory language about that person. 

   -A small number of rude comments were expressly directed at [Mr C].

   -The only comment personally directed at the applicant said, ‘[Applicant’s name] you are awesome’.  The remaining comments, to the extent they could be construed as being directed at him as well, were positive and supportive of what the protestors were doing.  They were either thanking them, praising them or agreeing with their involvement in the protest.  Even the comments which might be construed as negative were just telling those involved in the protest to mind their business because they are in Australia. 

   -The comment stating ‘you people should beat him up’ was directed at Bainimarama and not him.

   -He told the Tribunal at the first hearing that people in the comments were saying, ‘we will wait for you to come back’ and ‘you are lucky you are there’ and ‘you would be stabbed’.  The Tribunal put to the applicant the falsity of these statements and asked why he had told the Tribunal this the translation does not bear that out.  The applicant was unable to explain why he said that at the first hearing.  He said he meant it in a way that the SODELPHA people would stab him if he goes back.

1. The Tribunal asked the applicant whether he agreed with the Tribunal’s observations about the [social media] comments.  The applicant responded:

   -The comments started as very negative towards them. 

   -He agreed there are some good comments.

   -He agreed there were some negative comments towards [Mr C].

   -He feels fear reading the comments even though they are not directed at him.’  He said he doesn’t know what is going on in the mind of the commentors.  He has never heard this language before and when he reads it, it makes him feel scared.

   -He agreed that the comment stating ‘you people should beat him up’ was directed at Bainimarama and not him.

2. The Tribunal questioned the applicant about the inconsistencies between the claims in his Protection visa application, and the evidence he gave at the first hearing, and the evidence gave at the second hearing.  The Tribunal remarked that the applicant appears to have a poor recollection, the imprecision of his evidence and the fact that his evidence appears to change to suit him.  The Tribunal also put to the applicant its concern that his fear seems to have grown exponentially since the Protection visa application was lodged.  The applicant responded with a question, ‘Isn’t this what PTSD does?’ 

Country information

1. In terms of expressing opposition to Bainimarama or the former government, members of opposition political parties faced a low risk of official discrimination.[12]  There was no information on Fijian government mistreatment of SODELPA members active overseas who return to Fiji.[13]   However, there were re-entry bans for those who criticised the government or Bainimarama.[14] DFAT Report also assessed that social media users who criticised the government faced a low risk of discrimination, usually in the form of short term arrest and detention,[15] and high profile individuals faced more serious consequences including questioning by police, long court cased and even prosecution.[16]  In addition, high profile public figures including leaders of large organisations who were seen to challenge the government’s authority, or undermine its legitimacy, were at risk of negative attention, including arrest and detention.[17] 

   [12] Ibid.

   [13] The Department’s Country of Origin Information Service consulted CISNET and internet sites - including news websites & internet search engines - in English.

   [14] DFAT Report, at p.10.

   [15] DFAT Report, at p.14.

   [16] Ibid.

   [17] DFAT Report 2017, at p.16.

2. DFAT Report 2022 assessed there was still a moderate risk of violence in the form of police brutality for those who protested against Bainimarama.[18]  It also noted that there was a low risk of official discrimination, but it was not impossible.[19]  Whilst the police force in Fiji is generally seen as capable, there are reports of police violence and corruption.[20]

   [18] DFAT Report, at p.14.

   [19] Ibid.

   [20] 'Freedom in the World 2023 - Fiji', Freedom House', 31 August 2023, 20230831112859; Amnesty International Report 2022/2023: The state of the world’s human rights’, Amnesty International, 27 March 2023, pp.164, 20230328142801; DFAT Report, p.23; ‘Fiji Country Security Report’, The Overseas Security Advisory Council US Department of State, 14 June 2023, 20230712140448.

3. The Tribunal notes that the DFAT Report was published prior to the December 2022 election referred to below which resulted in a change of government.  As discussed with the applicant, this means that the references in the DFAT Report to the government, police and other authorities are a reference to the Bainimarama government, and the police and other Fijian authorities when the former Government was led by Bainimarama.  In the same way, references to ‘political opponent’ are referring to opponents of the former Government Bainimarama and Fiji First party. 

4. On 14 December 2022 there was a general election in Fiji to select 55 members of parliament. None of the nine parties that contested the election secured an outright majority; only four parties passed the 5 percent minimum threshold required to enter parliament.[21]  The Fiji First Party won 42.5 percent of the vote securing 26 seats and the newly formed People’s Alliance Party garnered 36 percent with 21 seats, while its coalition partner, the National Federation Party, won 9 percent of the votes to secure five seats.  SODELPA won three seats in parliament.

   [21] US Department of State Country Reports on Human Rights practices for 2022 – Fiji, 20 March 2023.

5. Following two days of negotiations, on December 20, SODELPHA reached a deal to form a government with the People’s Alliance/National Federation coalition. On December 24, People’s Alliance Party leader Sitiveni Rabuka was sworn in as prime minister. 

6. Current country information indicates that:

   -There has been no significant political unrest or deterioration of government functions since the Rabuka government was elected.[22]  The political situation and is stable and the next elections are in 2026.[23]

   -In August 2023, DFAT stated that it was not aware of any credible reports that the new government has harassed or ill-treated any supporters of the former Bainimarama government.[24]

   -Many people who had been deported, threatened or forced to leave Fiji for speaking out against the Fiji-First government are being granted permission to return, and are doing so.[25]  The government has reversed politically motivated travel bans against several high-profile critics of the former government.[26]

   -DFAT stated in August 2023 that it was not aware of any reports of the Republic of Fiji Military Forces, or Bainimarama or those loyal to him or his party pursuing Fijian nationals who publicly opposed him or his party since the change of government in December 2022.[27]
   
   

   [22] ‘Fiji 20230621135833-Country Information – Political update’, Department of Foreign Affairs & Trade, 02 August 2023, 20230803112036.

   [23] Section 58 of the 2013 Fiji Constitution provides a minimum term of three years and six months.

   [24] Ibid.

   [25] ‘Cautious optimism for Fiji’s Coalition Government’, Australian Institute of International Affairs (AIAA), 08 March 2023, 20230619104244.

   [26] ‘Amnesty International Report 2022/2023: The State of the world’s human rights’, Amnesty International, 27 March 2023, p.164, 20230328142801.

   [27] Fiji 20230621135833-Country Information – Political update’, Department of Foreign Affairs & Trade, 02 August 2023, 20230803112036.

Does the applicant meet the refugee criterion?

1. The Tribunal has carefully considered all of the evidence before it outlined above.  The applicant has made numerous claims which have evolved and changed since he lodged his Protection visa application. His claims can now be summarised as follows:

   (a)He fears returning to Fiji because of the risk of violence as a result of his political affiliations including his involvement, support and association with Sodelpha including Sodelpha Youth.

   (b)He fears the [social media] video has been circulated in social media and his name and address have been seen by people who oppose Sodelpha increasing his risk of cruel of inhuman treatment from his political opponents, supporters of Bainimarama, those who commented on the [social media] video who support Bainimarama, and anyone in the police force.

   (c)He feels threatened by comments in the [social media] video and is scared he will be hurt or killed by Bainimarama or his followers.

   (d)He fears the government could change at any time as a result of political turbulence and he will face violence in the form of police brutality.

1. The Tribunal has considered the above claims and all the oral and documentary evidence submitted in support of those claims.  The Tribunal is mindful that the applicant has been diagnosed with mild PTSD which necessarily indicates traumatic experiences.  The Tribunal accepts that trauma can impact significantly on an a person with PTSD’s ability to present evidence.[28]  The Tribunal’s Guidelines on Vulnerable Persons[29] state that a person with PTSD may suppress aspects of a traumatic event or in rare occasions do not remember what happened. Persons who have undergone trauma may have poor attention, concentration and distractibility, and there may be hesitancy to disclose due to shame, guilt or anger.[30]  These factors have been taken into consideration in assessment of the applicant’s evidence notwithstanding the Tribunal’s concerns regarding the assessment and the basis of that assessment which is considered below.

   [28] UNHCR, Guidance Note on the Psychologically Vulnerable Applicant in the Protection Visa Assessment Process, November 2017

   [29] AAT, Guideline on Vulnerable Persons, available on AAT website, Ibid.

Credibility concerns

1. However, as noted throughout this decision and put to the applicant, the Tribunal has several concerns about the applicant’s evidence which raises significant credibility concerns for the Tribunal:

   (a)Whilst the Tribunal acknowledges the applicant referred to being stopped by police officers and soldiers for ‘going in groups’ and being kicked and punched for being included in SODELPHA Youth in his Protection visa application, he did not claim to participate in any protest or rally in Fiji or Australia.    Concerningly, his Protection visa also made no claim that he attended a rally in Australia in September 2019 or that he was videoed speaking negatively about Bainimarama even though he claims he lodged the Protection visa application because of his fear that the video had been circulated in social media and his comments ‘would have been seen by people inimical to his party’.[31]

   [31] See Applicant’s 424AA Response dated 22 January 2024.

   (b)At his clinical assessment with Dr [D], he told her he had been arrested by police in 2018 as a result of the protest and was punched in the ribs by police and feared he was going to be killed. This claim was not included in his Protection visa application or given in evidence at the first hearing.  On the contrary, at the first hearing, the applicant said he was hit and thrown in the back of the police car and taken to the station.  He said ‘it wasn’t that bad’ and when they arrived at the police station, ‘the police just told them to go away’.   His explanation for the difference was that Dr [D] was asking him questions about how he was feeling and what was going on in his head at the time.  The Tribunal does not accept this response explains this inconsistency in his evidence.

   (c)The applicant travelled to Australia on two occasions after he claims he was assaulted by police officers and soldiers for his involvement in a political protest in Fiji.  He did not claim protection on either occasion and was able to return on both occasions without incident.  The applicant’s acknowledged in his s 424AA response that he came to Australia on 2 occasions and was able to enter and exit out of Fiji without undue trouble and this may lead the Tribunal to find that he was not at risk.  He then remarked that the situation had changed: the government was getting worse in Fiji when he left the third time and he attended the protest which made him a lot more scared to go back because of the [social media] video identifying him by name and address. The Tribunal does not accept this explanation.  The applicant left Fiji less than 8 months after his last re-entry and there is no evidence before the Tribunal demonstrating that the situation in Fiji had changed in that time. 

   (d)In relation to his claimed involvement and political affiliations with SODELPHA, the applicant told the Tribunal:

   i.He ‘might be’ a member of the SODELPHA party.  When the Tribunal asked the applicant for details about when he became a member, he changed his evidence and said he was not a member and never had been. 

   ii.He was involved in SODELPHA Youth but he did not attend meetings or regular gatherings. 

   iii.He is a supporter of the party and ‘wanted change with the government’.  He was fighting for the young people and he believed changed had to happen because of how corrupt Fiji was.

   iv.He had ‘probably’ been involved in ‘a few’ protests in Fiji, but subsequently conceded he had only been involved in the one, when he was [age]- or [age]-years old back in 2023 or 2014.  He did not participate in any other protests in Fiji on behalf of SODELPHA.

   v.He did not vote in the 2022 election.  He first said he didn’t vote because he wasn’t sure how to.  When the Tribunal enquired further as to why he didn’t vote in an important election to try and oust Bainimarama and support his party, he ‘remembered’ that he did register.

   vi.He first said he became involved in SODELPHA Youth in 2015, 2016 and 2018.  He then said he only continued to be involved in SODELPHA Youth until 2013 or 2014.

   vii.He did not plan to attend the rally in Canberra in September 2019.  He did not even know he was going to participate in a rally.  He went there with his aunt.

   The applicant’s evidence was vague and changed multiple times when he was discussing his claimed political affiliations with SODELPHA.  Even on his evidence, he has had minimal involvement with SODELPHA Youth. The Tribunal does not accept that The Tribunal does not accept he has any political affiliations with SODELPHA or SODELPHA Youth, and for the reasons below, does not accept that the applicant participated in a protest in Fiji when he was [age or age] years old.

   (e)He told the Tribunal he participated in the rally in Canberra one month after he arrived in Australia, but when the Tribunal put to the applicant that the photograph the applicant submitted to the Tribunal is dated 5 days after the applicant arrived in Australia, the applicant said ‘did not know’ when he attended the rally.  The Tribunal finds this evidence difficult to reconcile with the applicant’s evidence that he lodged his Protection visa 9 days after he attended the rally, because of his fears that those inimical to Bainimarama were aware of from the [social media] video that he was involved in that rally. 

   (f)He told the Tribunal at the first hearing that people in the [social media] comments were saying, ‘we will wait for you to come back’ and ‘you are lucky you are there’ and ‘you would be stabbed’.  This is not reflected in the English translation of the comments.  When the Tribunal put this to the applicant at the second hearing, and asked the applicant why he gave this evidence to the Tribunal, the applicant was unable to explain this.  He said he ‘meant it in a way that the SODELPHA people would stab him if he goes back’.  The Tribunal does not accept the applicant’s response and finds that the applicant was being disingenuous when he gave this evidence to the Tribunal.

   (g)When the Tribunal raised the above inconsistencies at the first hearing, the applicant could not explain them.  However, at the second hearing, when the Tribunal put to the applicant that his claims of fear had grown exponentially since he lodged his Protection visa application and he appears to be giving evidence to suit his evolving claims noting his claimed poor recollection and imprecision in the giving of his evidence, the applicant responded with a question, ‘Isn’t this what PTSD does?’  The Tribunal does not accept that his diagnosis of mild PTSD explains the significant changes in his claims and evidence since he lodged his Protection visa.

2. The Tribunal has carefully considered whether the applicant’s lack of detail, his evasiveness and inconsistencies might be explained by his educational, social and cultural background, his PTSD or his nerves and distress associated with attending a hearing. The Tribunal has considered that the applicant was nervous but does not consider that the applicant exhibited any signs of distress during the hearing.  When speaking about his life in Fiji, his upbringing, his work and study in Australia, and his desire to remain in Australia, the applicant spoke freely and with detailed coherence.  For this reason, the Tribunal has formed the view that the reason why the applicant’s evidence about his involvement in SODELPHA/SODELPHA Youth and the circumstances of his claimed ‘arrest’ and ‘beating’ by a police officer in 2013 or 2014, was devoid of detail and why he had such difficulty providing coherent and consistent evidence in relation to these matters, was because it was not truthful and the events he claimed had in fact, not taken place.  He was not describing his personal experiences of being involved in a protest and was not punched or kicked by police.

3. For all the reasons set out earlier, the Tribunal does not accept the applicant to be a reliable witness. 

4. In terms of Dr [D]’s letter, while the Tribunal accepts the letter has been written in good faith, the Tribunal is not bound by what a medical professional concludes as being the reason for an applicant’s symptoms.[32]  Dr [D] indicates that her diagnosis is based on the applicant’s account of his participation in the protests in Australia and in Australia.’  As outlined above, the applicant effectively conceded that many of the details he provided to Dr [D] were either wrong, imprecise or different from what he told the Tribunal including the date of the claimed protest in Fiji, what happened to him at the protest, the impact of that protest on him, and the fact that his references to the government of Fiji were in fact references to the former government and not the current government. 

   [32] MZWZB v MIMA [2006] FMCAA 4211

5. The fact that the Tribunal has extensive concerns about the applicant’s credibility has caused the Tribunal to conclude that the circumstances cited in Dr [D]’s report as being the reasons for the applicant’s symptoms did not occur and to the extent that report seeks to corroborate the applicant’s account of the events underlying his Protection claims, it is to be given little weight.[33] 

   [33] MIAC v MZYHS & Anor [2011] FCA 53

1. Moreover, for the reasons set out in this decision statement, the Tribunal does not accept the applicant’s PTSD or personality disorder arises from his claimed involvement in a political protest in Fiji and political rally in Canberra put forward in his review application.  As a result, the Tribunal does not accept that his mild symptoms of PTSD or emotional wellbeing would be significantly impacted if he returns to Fiji.

Fear of violence because of political affiliations

1. As noted above, the applicant does not accept that the applicant has any political affiliations with SODELPHA.  The Tribunal accepts that he may support SODELPHA but does not accept on the available evidence that he is or was an active supporter of SODELPHA. The Tribunal also does not accept that he has been involved with the SODELPHA Youth or SODELPHA.  The applicant also did not claim to have any political affiliations with SODELPHA in his Protection visa application and his evidence at the hearing was vague, inconsistent and evasive.

2. The applicant specifically told the Tribunal that he was only ever involved in one protest in Fiji and the second rally he participated in, was not planned and thus was not as a result of any political affiliations with SODELPHA.  The applicant has never attended any meeting or gatherings of SODELPHA or SODELPHA Youth.  There is no evidence to support that the applicant has a political profile in Fiji or is a high-profile political activist.  The applicant himself conceded as much. 

3. The Tribunal also does not accept that the applicant was kicked and punched by police or military soldiers in or about 2013 or 2014 as a result of his involvement in a protest in Suva.  The applicant was able to exit and re-enter Fiji on 2 occasions after his claimed involvement with this SODELPHA Youth involving a small number of youths without undue trouble indicating that the applicant was not known to the authorities in Fiji and faced no risk in returning to Fiji.  As noted above, the applicant gave very vague and inconsistent evidence.  He has not provided any other evidence to support his participation and the Tribunal has serious concerns that he was being untruthful in his evidence.  This concern was compounded by the significantly different version of events the applicant gave to Dr [D] about what happened at that protest.  The Tribunal does not accept that he was involved in a protest on behalf of SODELPHA Youth when he was [age or age] years old, or that he was involved with SODELPHA Youth at all. 

4. With respect to the rally he attended in Canberra in 2019, the Tribunal accepts that the applicant attended a rally in September 2019 organised by [Mr C].  The Tribunal also accepts that he had not planned on attending the rally in Canberra and was not even aware he would be participating in a rally.  In the Tribunal’s view, these are not the actions of someone who has political affiliations with a political party.

5. Based on the above, the Tribunal does not accept that the applicant was an active supporter of the SODELPHA party in Fiji or otherwise.  The Tribunal also does not accept that the applicant has any political affiliations with SODELPHA or was ever involved in SODELPHA Youth.  The Tribunal does not accept that the applicant will be of any interest to the authorities including the police and military, or that he faces a real chance of being harmed, tortured and bullied, hunted down and mocked at the Army Barrack, or having his basic rights deprived, as he claimed in his Protection visa application. 

6. The Tribunal finds that the applicant faces a real risk of serious harm if he returns to Fiji as a result of any political affiliations with SODELPHA.

Fear of harm from [social media] video and comments
Fear he will be hurt or killed by Bainimarama followers

1. As noted above, the Tribunal accepts on the evidence that the applicant attended a rally in Canberra in September 2019.  The Tribunal accepts that the applicant was randomly interviewed by [Mr C]. The Tribunal also accepts that the applicant’s first name was provided in the video along with the place he was originally from in Fiji as well as his maternal links in Fiji.  The Tribunal does not accept that the applicant’s full name was provided in the video nor was the town or province where the applicant lived in Fiji although the Tribunal does accept that the applicant stated he was living in [City 1, Australia] in Australia.

2. The Tribunal also accepts that the interview was streamed on [social media] live and subsequently posted on [Mr C]’s [social media] page.  Aside from the live streaming and posting of the video on [social media], there is no evidence which demonstrates that the video was circulated to others, and this is not accepted by the Tribunal.    

3. Further, the Tribunal does not accept that since the change in government in December 2022, the applicant would be of interest to the authorities in Fiji including the military or the police because of his attendance at the rally against the former government or Bainimarama in Australia if he were to return to Fiji.  Based on the country information set out above, the Tribunal raised at the first and second hearing that the political landscape in Fiji has changed significantly since the change of government in December 2022, and country information indicates that there has not been Fijian government mistreatment of SODELPA members or supporters overseas who return to Fiji, such that it longer appeared that there was a real chance the applicant would face serious harm if he returned to Fiji.

4. Even if the applicant was a high profile political activist[34] (which the Tribunal does not accept), based on the independent country information above, the Tribunal finds that if the applicant were to return to Fiji now or in the foreseeable future, he would not be tracked down and subject to harm in the form of torture or death amounting to serious harm at the hands of the military or police, members of the former government or Bainimarama’s supports including those who saw his [social media] video interview for his comments against Bainimarama or his political opinion.  It follows that the applicant would not face a real chance of persecution now or in the reasonably foreseeable future if he returns to Fiji.

   [34] The applicant’s representative submission dated 4 January 2024 referenced the 2017 DFAT report (which was cited in the delegate’s decision) which relevantly assessed ‘high profile figures’ who are seen to challenge the Government’s authority or undermine its legitimacy are at risk of negative attention such as arrest or detention. 

5. The Tribunal put to the applicant that the political party that the applicant supported was part of the tripartite alliance governing Fiji, and there was no basis for his fear of being harmed on account of his involvement in the rally in Canberra or the [social media] video in the manner claimed.  The Tribunal also put to the applicant that the change of government meant that the applicant’s chance of being harmed for his participation in the Canberra rally in September 2019 and his comments in the [social media] video, appeared remote, and it did not appear he would face a real chance of serious harm if he were to return to Fiji now or in the reasonably foreseeable future.  In response, the applicant stated that the government is not stable and could change at any time.  Having regard to the Tribunal’s findings with respect to the applicant’s claims and the change in the political arrangements in Fiji, the Tribunal does not accept that the applicant faces a real chance of serious harm on his return to Fiji for reason of his claimed political opinion or his involvement in the rally or the [social media] video.

6. In terms of the [social media] comments, the Tribunal does not accept that there are any negative or threatening comments directed to the applicant in the [social media] comments.  On the contrary, in the Tribunal’s view, the comments directed at the protesters and the rally, were overwhelmingly positive and supportive of the rally.  Having said that, the Tribunal accepts that there were some negative comments directed at the rally organiser, [Mr C] and a significant amount of derogatory and vulgar comments being exchanged between commentators.  There is no basis for the applicant’s claimed fear that he feels threatened by the comments since not one single negative or threatening comment was directed at him.

7. The Tribunal finds that the applicant faces a real risk of serious harm if he returns to Fiji as a result of his attendance at the rally or his [social media] comments. 

Fear government could change at any time

1. The applicant could not provide any basis for his view that the government could ‘change anytime’. Aside from indicating that he ‘fears’ this will happen, he did not provide the Tribunal with any reasons for this fear.  The Tribunal put to the applicant in the hearing, independent country information provides that there has been no significant political unrest or deterioration in government function since the formation of the new tripartite government and the political situation remains stable.[35]  The Tribunal does not accept that a change of circumstances as submitted by the applicant may be readily foreseen.

   [35]  COISS, DFAT Cable20230621135833, 3 August 2023.

2. The Tribunal notes that if a decision maker concludes there is no real chance of harm presently, it may be necessary to conclude whether a change in circumstances that may reading be foreseen could result in a real change of harm arising.[36]  This means, a decision-maker cannot simply consider ‘future possibilities over a very short, future time frame’, but must ‘prognosticate the situation into the reasonably foreseeable future’,[37] which involves ‘an assessment of the period of time to look into the future’.[38]

   [36] SZQXE v MIAC [2012] FCA 1292 at [7].

   [37]    QAAH v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 145 FCR 363, 391 [108] (‘QAAH’). Although this case concerned cessation of refugee status under art 1C(5) of the Refugee Convention, rather than consideration of the refugee definition per se, similar principles apply in both contexts.

   [38]    AON15 v Minister for Immigration and Border Protection (2019) 269 FCR 184, 196 [50].

3. In CPE15 v Minister for Immigration and Border Control,[39] Mortimer J examined the meaning of ‘reasonably foreseeable future‘ as follows:

   The ‘reasonably foreseeable future’ is something of an ambulatory period of time, but the use of reasonable foreseeability as the benchmark concept indicates that the assessment is intended to be one which can be made on the basis of probative material, without extending into guesswork. It is also intended to preclude predictions of the future that are so far removed in point of time from the life of the person concerned at the time the person is returned to her or his country of nationality as to bear insufficient connection to the reality of what that person may experience.[40]

   [39] [2017] FCA 591.

   [40]    CPE15 v Minister for Immigration and Border Protection [2017] FCA 591, [60] (Mortimer J) (‘CPE15’).

4. The Tribunal does not accept the applicant’s assertion that the government could change at anytime based on probative material without extending to guesswork and is of the view that it is purely speculative. The current DFAT information from 3 August 2023 refers to the political situation as stable and states that the next election will not be held until 2026.  Whilst the Tribunal accepts Fiji has endured coups in the past, the current country information indicated that the political situation in Fiji is stable.  There have been no coups since 2009.

5. For the reasons above, the Tribunal does not accept that the applicant would face a real chance of persecution involving serious harm if he to returns to Fiji now or in the reasonably foreseeable future at the hands of the military, the police, members of the former or current Fijian government or supporters of Bainimarama (including those who comments on the [social media] video) or anyone else due to the applicant’s political opinion even if the government were to change. 

6. The Tribunal finds that the applicant does not face a well-founded fear of persecution.

Cumulative harm

1. As discussed extensively above, the applicant attended a psychologist after the first hearing to be assessed for PTSD.  As noted above, a letter from Dr [D] was produced to the Tribunal wherein she assesses that the applicant has mild post-traumatic stress disorder and adjustment disorder with depressed mood.  She also assesses that the applicant’s ‘pre-existing strong psychological health has been a protective factor.’

2. In AGA16 v MIBP[41], the Court accepted (the appellant’s proposition) that in assessing the seriousness of harm, it is necessary to have regard to personal attributes such as age and frailty, as well as personal vulnerabilities.  In this matter, the Tribunal has considered whether there is a real chance of serious harm when taking into consideration the applicant’s mild PTSD and adjustment disorder with depressed mood.

   [41] [2018] FCA 628.

3. The Tribunal has also considered the totality of the circumstances, and whether there are a number of lesser harms the combined effect of which would be sufficiently serious to constitute persecution.[42]

   [42] S1891 of 2003 v MIMIA [2005] FMCA 1069.

4. The country sources referred to above do not indicate that a person in the applicant’s position would be targeted for harm.  The Tribunal is not satisfied that supporters of Bainimarama would harm him.  The Tribunal is also not satisfied that former supporters of the Prime Minister or the Fiji First Party including trolls who saw the [social media] video would harm him.  On this basis, even taking into consideration the applicant’s diagnosis of PTD and adjustment disorder, the Tribunal is not satisfied there is a real chance of serious harm.  The chance of serious harm appears to be speculative and based on surmises, rather than being a real chance.   Indeed, the applicant appeared to concede this himself when he stated that he was not sure what would happen.

5. The Tribunal is not satisfied therefore that there is a real chance of serious harm based on a number of lesser harms the combined effect of which would be sufficiently serious to constitute persecution or taking into account the applicant’s vulnerabilities. 

Does the applicant meet the complementary protection criterion?

1. The Tribunal has also considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Indonesia, there is a real risk that he will suffer significant harm such that he meets the complementary protection criterion under s.36(2)(aa).

2. In considering this criterion, the Tribunal must consider whether the applicant will suffer significant harm.  Significant harm is exclusively defined in s36(2A). 

3. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.

4. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[43] 

   [43] MIAC v SZQRB [2013] FCAFC 33 (Lander, Bosanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Bosanko and Jagot JJ at [297], Flick J at [342].

5. For the reasons set out above, the Tribunal has found the applicant does not face a real chance of serious harm. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[44] The Tribunal notes that this applies equally to the assessment of ‘well-founded fear’ for the purposes of s 5J.   It follows that the Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that he will suffer significant harm in any of these ways.

100.As the Tribunal has not accepted the applicant’s claim that he will be harmed on return to Fiji by any person, the Tribunal does not accept that any deterioration in his mental health, would be the result of any act or omission by another person or persons as required by the definitions of ‘torture’, ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’. The Federal Court has confirmed that the definition in s 36(2A) is framed in terms of harm suffered because of the acts of other persons.[45] It does not encompass self-harm, harm arising from mental illness or harm that a non-citizen would suffer as a result of any other illnesses arising on return to a receiving country.[46]

101.The Tribunal has also considered Dr [D]’s comments that the applicant’s ‘mild symptoms of PTSD would be significantly exacerbated with [his] emotional well-being being significantly adversely impacted’ if he were removed from Australia to Fiji and whether this could be considered subjecting the applicant to cruel or inhuman treatment or punishment, or to degrading treatment or punishment.  Whilst the Tribunal accepts that it is possible that the applicant’s PTSD could be exacerbated upon his return, the Tribunal is not satisfied that there would be an act in the receiving country necessary to enliven the complementary protection provisions.[47] The Tribunal also notes that the Australian courts have held that an applicant’s mental illness will not on its own satisfy the requirements of s.36(2)(a) or (aa) of the Act, because both ‘serious harm’ and ‘significant harm’ refer to acts perpetrated by others which cause the non-citizen to suffer harm.[48]  It is not suggested, and the Tribunal does not accept, that the death penalty will be carried out on the applicant for any reason if he is returned to Fiji.

102.Based on these findings, it follows that the Tribunal is not satisfied that there is a real risk the applicant would be subjected to ‘significant harm’ as defined by s36(2A) if he returns to Fiji for reasons of any exacerbation of his PTSD.  Such harm would not amount to arbitrary deprivation of life, infliction of the death penalty, torture, or cruel, inhuman or degrading treatment or punishment of or to the applicant.

103.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)(aa).

[44] [2013] FCAFC 33 (Lander, Bosanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Bosanko and Jagot JJ at [297], Flick J at [342].

[45] The language in ss 36(2A)(a)–(b) and in the definitions of the concepts in ss 36(2A)(c)–(e) all concern, and only concern, how a visa applicant might be treated by another person: GLD18 v MHA [2020] FCAFC 2 at [37].

[46] CHB16 v MIBP [2019] FCA 1089 at [65]–[68] (special leave to appeal from this judgment was refused: CHB16 v MIBP [2019] HCASL 377); and CSV15 v MIBP [2018] FCA 699 at [34]. The majority in GLD18 v MHA [2020] FCAFC 2 at [89] confirmed that there was nothing erroneous in the Courts’ statements in CHB16 and CSV15 that self-inflicted harm does not constitute ‘significant harm’, and at [90] noted that it is the intentional infliction of mental harm by others (which may cause a person to engage in self-harm) that is critical to the satisfaction of s 36(2)(aa). However, Snaden J in obiter at [103] saw ‘no obvious reason’ why self-harm might not qualify as a risk of the kind to which s 36(2)(aa) is directed and ‘would be slow to conclude that ‘significant harm’ extends no further, conceptually, than to harm that a visa applicant might endure at the hands of others’. See also SZDCD v MIBP [2019] FCA 326 where the Court held that deprivation of an appellant’s access to medical treatment in Australia as a consequence of his removal to Bangladesh would not amount to him being arbitrarily deprived of his life under s 36(2A)(a): at [48]; and EZC18 v MHA [2019] FCA 2143 where the Court upheld the Tribunal’s finding that suicide could not constitute the ‘arbitrary deprivation of life’ in s 36(2A)(a): at [47].

[47] see SZRSN v Minister for Immigration and Citizenship [2013] FCA 751 and SZRSN v Minister for Immigration and Anor [2013] FMCA 78.

[48] EZC18 v MHA [2019] FCA 2143 per Besanko J; CSV15 v MIBP [2018] FCA 699 per Collier J

Conclusion

104.For the reasons given above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore, the applicant does not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa.

1. 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 ss 36(2)(a) or (aa) and who holds a protection visa.  Accordingly, the applicant does not satisfy the criteria in s 36(2).

Other matters

106.As noted above, the applicant submitted that he has a full-time job in Australia and is undertaking further studies and obtaining additional licensing and certificates.  He informed Dr [D] that he was keen to return to full time study to become a [occupation].  The applicant has a maternal uncle and his family living in Australia, with whom he has a close relationship.  He also a girlfriend.  The references submitted to the Tribunal support that the applicant has made a valuable contribution to the community including with volunteer work during the time he has been in Australia.  The applicant’s uncle expressed his desire for the applicant to remain in Australia. 

107.The Tribunal has considered the applicant’s case and Ministerial guidelines relating to the discretionary power set out in s 417 of the Act and the associated Ministerial guidelines and Departmental policy.  The Tribunal has decided not to refer the matter on the basis that his circumstances, as presented to the Tribunal do not meet the Guidelines.  Notwithstanding, the applicant may make a request directly to the Minister if he is so inclined.

DECISION

1. The Tribunal affirms the decision not to grant the applicant a protection visa.

Lisa Lo Piccolo
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.

…

1. Protection visas – criteria provided for by this Act

…

1. 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.

…