2107713 (Refugee)

2107713 (Refugee) [2024] AATA 1047 (5 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Michele Ann Clayton
CASE NUMBER: 2107713

COUNTRY OF REFERENCE: Fiji
MEMBER:Mark Oakman
DATE:5 February 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 05 February 2024 at 8:39am
CATCHWORDS
REFUGEE – protection visa – Fiji – imputed political opinion – objection to the military assaulting people – drug and criminal operations – fear of physically harm – fear of detention – fear of torture – call back to active service – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 56, 65, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 June 2021 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants are a husband, a wife, and two of their sons who claim to be citizens of Fiji and applied for the visas on 30 June 2017. The delegate refused to grant the visas on the basis that the applicants were not persons in respect of whom Australia has protection obligations.
The applicant husband appeared before the Tribunal on 29 November 2023 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether any of the applicants is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Receiving Country
The applicants provided copies of their Fijian passports. They stated in their protection visa applications that they were citizens of Fiji and the applicant husband confirmed the same at the hearing. Based on that documentary and oral evidence, I accept that the applicants are nationals of Fiji. Fiji is the receiving country for the purpose of this assessment.
Migration history
The applicant husband last arrived in Australia [in] February 2017 on a visitor’s visa. The applicant wife and applicant sons last arrived in Australia [in] May 2017 on visitor visas. They lodged applications for protection visas on 30 June 2017.
Background
According to information given by the applicants in their applications, in the response to the Department’s s 56 request, and by the applicant husband at the hearing, the applicant husband is [age] years old, the applicant wife [age] years old and the applicant sons are [respective ages] old and they were all born in Fiji. There are also [other children] in the family who were born in Australia after the applicants arrived, and who are not part of the protection visa application. The applicant husband and applicant wife married in 2010. The parents speak, read, and write Fijian and English. The applicants are Fijian and Christian.
The applicant husband was in the Fijian military at various times ([between specified years]) and worked in special security positions in [Country 1] ([between specified years]). He finished high school in [year], completing [grade]. He has undertaken various training courses and provided numerous certificates as part of the protection visa application process. He has been working in Australia for [company] since 2019 [in two positions].
Evidence before the Department
In the protection visa application lodged on 30 June 2017, the applicant husband made protection claims. The applicant wife and applicant sons made no protection claims of their own. The applicant husband’s protection claims are, in summary:
·Why you left the country? – he left with his family to avoid being recalled to undertake field duties with the Fijian military, which he objects to doing as they involve being required to follow orders to assault people. He felt that the military should be assisting and not harming people. The assaults occurred in the context of drug operations and other operations regarding criminal accusations but were politically motivated and people assaulted for that reason. He was afraid he would shortly be recalled to those duties and that if he refused to participate, he would be harmed himself.
·What do you think will happen if you return to the country? – He is in the military reserves and can be made to serve again at any time. He is worried that he will be asked to do the same things that he has disagreed with again. He does not wish to be involved and intends to object to following orders to harm people and worries he will be assaulted himself for refusing.
·Did you any experience harm in that country? – He was in the Fijian military for [number] years. He was involved in field work where people accused of drug related offences were physically assaulted, which he objects to being involved in. He was not physically harmed himself as he participated as ordered but was distressed by these events.
·Did you seek help within country? – military in charge in Fiji, so there was nobody to ask for help. He was afraid if he objected to the assaults, he would be harmed himself.
·Try to move to another part of the country to seek safety? – He couldn’t move within Fiji, as it wouldn’t change his status and he would still be subject to recall. Instead accepted a tour of duty to [Country 2], as means to escape what military officers in Fiji were being made to do. There was a financial incentive for going there, but predominantly wanted to escape from duties in Fiji. He left Fiji shortly after he returned from [Country 2] as he worried about being recalled to duties that are offensive to him.
·Think you will be harmed or mistreated if you return to that country? – He believes he will be physically harmed by the Fijian military if he refuses to participate in duties which include assaulting people.
·Think the authorities of that country can and will protect you if you return? – He believes the military who are charged with carrying out the abuses will harm him and not help him; and the police will not help him as they effectively operate in tandem with the military.
·Think you would be able to relocate within that country? – He believes, as the military is everywhere in Fiji, he will be unable to avoid being required to rejoin field operations and avoid being harmed for refusal.
The Department wrote to the applicant husband on 9 February 2021 and requested further information under s 56 of the Act. The Department requested, among other things, a detailed, chronological and comprehensive employment history; supporting evidence of his employment with the Fijian military; details of his current employment status; information about the professional certificates provided with the protection visa application; detailed statement of his lengthy service with the Fijian military and the specific tasks he undertook during his service; more details of his military and combat service; details if he was involved in actions in which other people were harmed; evidence to support his claim that the Fijian military will enlist him in the reserve; and more information about which duties he would be compelled to undertake in that capacity but which he doesn’t want to.
The applicant husband replied to the s 56 request by way of a statutory declaration dated 22 February 2021 (2021 statutory declaration). He provided supporting documentation including professional and other training certificates; service certificates; letter dated [in] February 2021 confirming his Fijian military service; schedule of employment; schedule of international movements; letter of support dated 19 February 2021 from his Australian employer; letter of support dated 8 July 2020 from his church; and taxation records. The 2021 statutory declaration provided a detailed response to the Department’s request and is before the Tribunal. In relation to his military service in Fiji and the actions he undertook he stated, in summary:
·He joined the Fiji military in [year]. He was in the army and the reserves for about 20 years. He both liked and disliked it.
·The army capture and torture people in Fiji, criminals, drug dealers and drug farmers, human rights activists, politicians, people in religious groups. That was the part he didn’t like. He had to follow orders and be involved, or he might be treated the same way. He had to follow the orders given, that is the bad thing about the army.
·When he served outside of Fiji, they didn’t have to do things like that, either doing UN peace keeping duties or as a private security officer. He never had to shoot his rifle while serving with the UN in [Country 2] and [Country 3].
·When he first started in the army in Fiji, he was with a special group called [Unit 1]. This was like [Unit 2] which was used in the coup in 2000. It was renamed [Unit 1] after [Unit 2] was disbanded.
·He had nothing to do with the 2000 coup – he joined the army [later]. He had nothing to do with the 2006 coup when Bainimarama took over as he was away in [Country 3]. When he got back from that trip he resigned from the army. It was October or November 2007.
·He was in the reserves from that time. They asked him to go to training maybe five times – weekend camps for weapons, survival training, and infantry type stuff. He was called back in for active duty as well – they had to look for escapees, hunt for drug farmers and round up people the government didn’t like, all over Fiji.
·He had to do that about five times, and it took about a week each time. The longest one was for about eight months in [year]. The last time he was called back for that sort of duty was in September 2016.
·He is still in the Reserves and if he goes back to Fiji, they can call him up at any time. Part of the reason they keep calling him back is his special training. He was trained as a [specialist 1] with the [Country 4] Army in [Country 5] in 2004; and he was in [Unit 1]. Both involved intensive training.
·Since he is very highly trained, and has proven himself to the army, they know if they give him an order the task is going to happen, there will be no double thinking, and the mission will be done. He also worked as [another role] in [Country 1] and that is experience that the Fijian army wants. The operations officers know his capabilities and since he had done what they told him to they keep calling him back.
·The first time had to do the objected to duties was in [year], when he was assigned to a named military camp in Suva. They had to chase criminals and drug farmers and round up people the government didn’t like. They were working with the police. They patrolled with the police and army officers gave the orders. They had to look for certain people and bring them to the camp. At the camp they had to do things to the men, under orders, like strip them, make them crawl, kick them, [other punishments] and punch them as a group.
·He and the others were wearing balaclavas so they wouldn’t be recognised. Sometimes it was just to make them confess – name other people, where they were hiding drugs. They were told they were criminals but some of them may have been people who just spoke out against the government. They were told what the people were meant to have done, whether they were a unionist, a politician or a drug dealer, but often they didn’t know their names. He never saw anyone he knew. He was not happy about being involved in it.
·The next time he had to do this type of work for the army and with the police was in [year]. It was in Western Province in Nadi. It was essentially drug people that time. Other times it was politicians, unionists, and other people who had spoken out against the government. He was in Nadi for about a week, and they rounded up maybe five people. They tied them up, took them to the camp and beat them, kicked them, punched them, and hit them with a big stick, to make them confess about their clients, how their business worked and where were the drug farms. The beatings were not long, maybe an hour, before they were told what their officers wanted to know.
·The next time was [year] in Suva at the same named barracks. It was for about two to three days. This time they wanted mostly unionists and some politicians. One was a former named [Official 2], ‘Mr A’. He was personally involved in beating Mr A – they punched him, undressed him, poured cold water on him and pointed their guns at Mr A. That was just to give him a warning not to say bad things about the government. It was also the way they treated unionists and human rights workers, giving them a warning not to talk and say bad things about the government. The orders were given by officers, lieutenants, and it was usually a different one each time.
·It was more than five times he was ordered to do that type of work. The last time was in September 2016. It was for a named politician, ‘Mr B’, who was also a former [Official 2], and a trade unionist. It was a joint operation with the police and they just took them to the police station. He wasn’t involved anymore after that.
·He decided then that he had had enough of that type of work. He was worried he might have to do it again before the general election. Nobody told him, but he had a feeling if anything happened, they would call him up again. He first came to Australia in October 2016 and returned in January 2017, before he came to Australia again in February 2017. After his family again joined him in May 2017, they lodged the protection visa applications.
·He first started with the Fiji military in [year] when he enlisted and passed basic training. After that he was posted as a reserve, and [between specified years] he was in the reserves. In [year] he joined the regular force in the army as a permanent job, from [between specified years]. [Between specified years] he served in [Country 3]. In [year] he resigned from the Fijian military and joined the reserves straight away. He has been in the reserves since [that year] until now, 2021. [Between specified years] he joined the Fijian army for a tour of duty in [Country 2]. That was the end of his service with the Fiji military force. When he returned to Fiji after that service he was posted as a reserve. He has been a reserve ever since and is still officially a reserve.
·When you are in the reserves you are not paid by the Fijian military force, you are only paid from your regular job. But when you are called by the Fijian military force you are paid according to your rank for that certain period you serve.
·He would not be called for duty now because he is out of the country. Once he goes back to Fiji, they will call him again straight away. The reason they will call him back is because his professional skills and knowledge are wanted by the Fiji military for the kind of operations they do at home in Fiji. They only call you if you are present in Fiji, they won’t call you for duty if you are outside the country.
·He committed crime against humanity and torture, but thinks he did this because of his rank as private and he was following the orders of higher ranked officers.
·If he returns to Fiji the Fiji military force will certainly call him back into service. They will make him do the same things as before. That’s the main reason he doesn’t want to go back to Fiji. They will make him do the same things again, including torture. If he doesn’t do it they will harm him by persecuting him, court martialling him.
·If he is found guilty of not following orders, they will put him in gaol. They will cut his salary and make him do things he doesn’t want to do. They make you crawl on the ground, put you in pigs’ waste, and run you up and down inside the military camp with a rubbish bin on your head. They torture you inside the camp. Sometimes they punch you. They embarrass and humiliate you inside the camp. They make you do things which are not normal, as part of the punishment. They punched and kicked the people they brought inside the camp and they will do the same thing to him. That’s his greatest fear right now of going back to Fiji.
·He doesn’t want to do the same thing he used to do, like seeing people tortured and harmed. He doesn’t want to do that again. That’s why he moved. He is a refugee because the fears harm from the Fiji military forces. He fears he is going to be persecuted for political reasons for not following orders from his officers.

The applicants were not invited to an interview with the delegate.
Evidence before the Tribunal
The applicants lodged their application for review with the Tribunal on 15 June 2021.
On 29 November 2023 the applicants’ legal representative provided an email to the Tribunal with submissions in support of their application. The submissions contain extracts from two documents, and a hyperlink to the Public Order Act1969 (Fiji). Complete copies of the two extracted documents were also attached to the email. The submissions in the email of 29 November 2023 are as follows:
“
We refer to the review applicant’s acknowledgement of having participated as a soldier in Fiji, in physical abuses of Fijian citizens when ordered to do so by his superior officers. We submit his stated fears of being forced to again participate in abuses of Fijian citizens for fear of harm to himself or his family, remain plausible as a current issue, despite the new government’s ascension to power in Fiji, on the basis of laws still current in Fiji and which the applicant asserts support his claims.
The most recent US Department of State Human Rights Report for Fiji, published after the change of government that followed the December 2022 election, continues to make note of abuses by the forces and to recognise the Public Order Act 1969 ’s role in authorising such abuses.
US Department of State
415610_FIJI 2022 HUMAN RIGHTS REPORT
FIJI 2022 HUMAN RIGHTS REPORT (state.gov) [hyperlink to]
Excerpts p1 (complete report attached) The review applicant does not rely on any other part of this report:
Fiji is a constitutional republic. On December 14, the country held a general election in which a coalition of the People’s Alliance Party, the National Federation Party, and the Social Democratic Liberal Party won control of parliament and Sitiveni Ligamamada Rabuka became prime minister. International observers assessed the election process as free, transparent, and credible.
The Fiji Police Force maintains internal security. The Republic of Fiji Military Force may be assigned some domestic security responsibilities in specific circumstances. The police force reports to the Ministry of Defence, National Security, and Policing; the military reports to the president as commander in chief.
Within the limits of the law, civilian authorities maintained effective control over the security forces. There were reports members of the security forces committed numerous abuses. Significant human rights issues included credible reports of: cruel, inhuman, or degrading treatment by government agents; serious restrictions on freedom of expression and media, including censorship; substantial interference with the freedom of peaceful assembly; serious and unreasonable restrictions on political participation; lack of investigation of and accountability for gender-based violence including but not limited to domestic and intimate partner violence; significant barriers to accessing sexual and reproductive health services, including coerced abortion or forced sterilization of persons with disabilities; and trafficking in persons.
The government investigated some security force officials who committed abuses and prosecuted or punished officials who committed abuses elsewhere in the government; however, impunity was a problem in cases with political implications.
The constitution and law prohibit torture, forced medical treatment, and degrading treatment or punishment. The Public Order Act, however, authorizes the government to use whatever force it deems necessary to enforce public order … There were reports security forces abused persons. The police Internal Affairs Unit is responsible for investigating complaints of police misconduct. As of September, the Office of the Director of Public Prosecutions charged 59 officers with various forms of misconduct, including assault, causing grievous harm, abuse of office, use of illegal drugs, unlawful wounding, and wrongful confinement. Investigations into police abuse often took years to complete; judicial proceedings were equally prolonged and seldom resulted in convictions.
The Public Order Act 1969 cannot be reproduced from its website but is to date available at the following link. The relevant parts of the Act which authorise the use of force by police and those acting with police, which in recent memory has included the Fijian Military Forces, against citizens, are pp 17A-17C.
PUBLIC ORDER ACT 1969 - Laws of Fiji [hyperlink to]
2) Regarding the review applicant’s assertion of a requirement that he must continue to serve in the military reserve if residing in Fiji and recalled to service, he relies on Chapter 81 of LAWS of FIJI “ROYAL FIJI MILITARY FORCES”. The review applicant maintains that he may not resign and continues to be liable to serve in the reserve forces as outlined in this chapter. He maintains that the possibility of resignation suggested by s11 of Chapter 81, may be overridden and in practice during times of perceived need are overridden, by the terms of ss20-22 of Chapter 81. The review applicant does not rely on any other parts of Chapter 81.
LAWS OF FIJI
CHAPTER 81
ROYAL FIJI MILITARY FORCES
Period of enlistment
8.-(1) A person may be enlisted as a soldier of the Regular or Territorial Forces for an
initial period not exceeding three years and thereafter he may, with the approval of the
Commander, re-engage for successive periods each not exceeding three years until he
attains the age of forty-five years:
Provided that the age limit may be extended by the Minister for any particular soldier or
class of soldiers.
(2) On each re-engagement a soldier shall make the prescribed declaration.
(Section amended by 25 of 1956, s. 4, and 56 of 1961, s. 3.)
Reserve
9. A soldier of the Regular or Territorial Forces shall on the expiration of his period of
enlistment or if re-engaged, of his last re-engagement be transferred, if he is then below
the age of forty-five years, to the Reserve.
(Amended by 56 of 1961, s. 3. and 20 of 1973, s. 5)
Transfer between units
10. A soldier of the Regular or Territorial Forces shall be liable to serve in any unit of the
Forces and to be transferred from one unit to another.
(Amended by 56 of 1961, s. 3. )
Saving
11. Nothing in section 9 shall be taken to prohibit the discharge, resignation, release from
service and dismissal of soldiers in accordance with the provisions of this Act or any
regulations made thereunder.
(Amended by 56 of 1961, s. 3.)
Service
12. Every Regular officer on the active list and every soldier of the Regular Force and,
when called out for continuous service, every Territorial officer and every soldier of the
Territorial Force and the Reserve shall be liable for service in the performance of the
duties of the Forces as defined in section 3.
(Amended by 56 of 1961, ss. 3 and 6. and 20 of 1973, s. 6.)
…
PART IV-LIABILITY FOR CONTINUOUS SERVICE
Calling out for continuous service
20.-(1) The Governor-General may, by proclamation, call out the whole or any part of the
Territorial Force and the Reserve for continuous service whenever it appears to him
advisable so to do by reason of invasion, war or danger of any of them or by reason of
any internal emergency threatening the security of life or property to quell which the
available civil force is deemed by him inadequate and when so called out they shall be
held to that service until such time as the Governor-General may, by proclamation,
declare that they are relieved from that service.
(2) Whenever the whole or any part of the Territorial Force or the Reserve is called out,
every soldier thereof shall attend at once in obedience to the call at such time and place as
may be directed by the Governor-General.
(3) Every soldier who, not being incapacitated for service by infirmity, absence from Fiji
or other good and sufficient cause, refuses or neglects to obey the call shall be liable to
imprisonment not exceeding twelve months or to a fine not exceeding one hundred
dollars.
(Section amended by 56 of 1961, ss. 3 and 10 and 20 of 1973, s. 9.)
Applicability of section 20 to Territorial officers
21. For the purposes of section 20, a Territorial officer shall be deemed to belong to the
Territorial Force only during such time as he is on the Active List.
Not entitled to discharge when on continuous service or on active service
22. No officer or soldier of the Forces when called out on continuous service under the
provisions of section 20 shall be entitled to obtain discharge during the continuance of
such service.
(Amended by 56 of 1961, ss. 3 and 11.)
”
The applicants were invited to attend a hearing at the Tribunal on 29 November 2023. The applicant husband appeared before the Tribunal in person on 29 November 2023 to give evidence and present arguments. The applicant wife also attended the hearing on 29 November 2023 in person, as a support person for her husband. The applicant sons did not attend the hearing. The applicant husband had requested an interpreter in the Fijian language and the Tribunal arranged for a Fijian interpreter to attend the hearing. At the commencement of the hearing the applicant husband advised that he was generally capable of participating in the hearing using the English language. The Tribunal encouraged the applicant husband to rely upon the interpreter at any stage he did not understand the Tribunal’s questions or wished to convey his responses through the interpreter using the Fijian language rather than speaking with the Tribunal directly in the English language. In the event, on occasion the applicant husband used the services of the interpreter during the hearing and the Tribunal elected to direct some questions to the applicant husband through the interpreter. Where relevant, the applicant husband’s oral evidence at the hearing is referred to in my analysis below.
At the conclusion of the hearing the Tribunal gave the applicants’ legal representative until 13 December 2023 to provide any further material in relation to some matters discussed at the hearing in support of the applications. As of 13 December 2023, no further material, or a request for additional time, was received by the Tribunal. As at the date of this decision no further material from the applicants has been received by the Tribunal.
Analysis, reasons, and findings
The applicant husband confirmed at the hearing that he doesn’t want to go back to Fiji as he fears he will be harmed, and his wife and children. His big worry is being called back into the army and having to undertake the things to which he objects and which he would refuse to do and suffer serious consequences as a result. If something happened to him, if he was persecuted and ill-treated because of that, there would be no one to look after his wife and children. He is also concerned because the current government in Fiji is unstable and, if something were to happen, whoever was in government at the time would call up reservists.
He confirmed his and his family’s general biographical information. He covered his military service and gave information generally consistent with the protection visa application and the 2021 statutory declaration. He did say that he was in the territorial force [between specified years] and since 2016 has been in the reserves. Although this was the first mention of his being in the territorial force by the applicant husband, I note that information is consistent with the letter dated [in] February 2021 from the Fijian military that confirms his military service. Given the consistency of his evidence on the family’s biographical details, I accept those details which are summarised above in the ‘background’. Based on his largely consistent evidence about his general military service history, subject to the exception discussed below, I accept the applicant husband’s military service history set out in his 2021 statutory declaration and as clarified (in relation to his being in the territorial force up to 2016 and thereafter in the reserves) at the hearing.
Country information confirms that incidents of abuse by the military and police forces, including towards drug criminals, trade unionists, and politicians did occur on some occasions in Fiji during the period(s) of the applicant husband’s claimed service.[1]
[1] Including US Department of State (USDOS), ‘Fiji - Country Reports on Human Rights Practices - 2006’, 6 March 2007; USDOS, ‘Fiji - Country Reports on Human Rights Practices - 2008’, 25 February 2009; USDOS, 'Country Reports on Human Rights Practices for 2011 - Fiji', 24 May 2012; USDOS, 'Country Reports on Human Rights Practices 2016 - Fiji', 3 March 2017; and ‘Beating Justice: How Fiji’s Security Forces Get Away With Torture’, Amnesty international, 4 December 2016.
However, I do not consider credible, and therefore do not accept, the applicant husband’s claims in relation to the five or so occasions he said he was ordered to, and was involved in, the mistreatment of men who were taken during combined police and army operations, noting that all but one of those incidents were said to have been during post-2007 call ups to active duty. In particular:
·In support of his claims the applicant husband provided a letter from the Royal Fijian Military Forces (RFMF) dated [in] February 2021. This letter confirmed his service with the Fijian military forces but did not mention any call ups to active service after 2007, other than his service in [Country 2]. I do not consider it credible that, if such call ups to active service occurred as claimed by the applicant husband, a letter from the RFMF would provide details of his military service, including some post-2007 service, but not mention any of these claimed call ups. I raised this concern with him at the hearing. He made no comment.
·I do not consider it credible that the applicant husband has not provided any documentary evidence that can confirm his claimed call ups to active service post-2007, other than [Country 2]. None of the supporting material previously provided, including the training certificates and service certificates, does so (except for [Country 2]). I raised these concerns with the applicant husband at the hearing and discussed if he would be able to provide any such documentation. The Tribunal mentioned that, as his evidence was that any active periods of service were paid, it might be expected that there could be pay slips or similar records that could assist. At the conclusion of the hearing the Tribunal gave the applicant until 13 December 2023 for any further material to be provided. No further material was received by 13 December 2023, or as at the date of this decision. I consider the lack of any documents that support the claimed post-2007 call ups to active service (other than for [Country 2]) to reflect poorly on this aspect of the applicant husband’s claims.
·I raised with the applicant husband at the hearing that if it was not accepted that he was called up for active service on other occasions post-2007, it may raise credibility concerns about his claims of having been ordered to participate in mistreating people on occasion. He made no comment.
·I note that I discussed at the hearing a media article concerning Mr A. That 2011 media article indicated he claimed to have been subject to an incident of harm in Fiji in 2011, as well as three previous incidents since 2006. The article suggested the 2011 incident, in which Mr A claims he was subject to questioning in Fiji, occurred on [a day in] 2011. The applicant husband’s schedule of international travel that he provided shows he was not in Fiji on or around that date, which would indicate he could not have been involved in that incident with Mr A on [that day in] 2011. However, following that discussion, I have reached the view that the article is ambiguous about whether all the other incidents involving Mr A occurred prior to 2011. Similarly, it is not clear whether any incident, other than the [specified date] incident, occurred in 2011 at a time when the applicant husband was in Fiji. Therefore, I have not attached any weight to this article in reaching my conclusion about the credibility of his claim(s).
Based on the country information, I accept that he would have been aware that such incidents were occurring. I also accept his evidence that he did not like that the military was involved in these types of incidents. Similarly, I accept his evidence that if he was recalled to active service in Fiji, he would refuse to obey orders to carry out such abuses. However, given the above issues, I do not accept that the applicant husband was called back on active military service after 2007 for the claimed operations during which he was ordered to, and did, abuse / mistreat persons in Fiji. Overall, I do not consider the applicant husband a reliable witness about his claims to have been involved in incidents of abuse / mistreatment. In relation to his claimed involvement in such incidents when posted to a named barracks in Suva in 2005 (while he was still serving in the army) I also do not consider this claim to be credible. Country information[2] from the US Department of State does not report any incidents in either 2004 and 2005 of a similar nature to that which the applicant husband claims he was involved in 2005; it refers to some reports of abuse, such as beatings, by the police, but notes they appeared to be isolated incidents and not condoned by supervisory officers. It is only after 2005 and the December 2006 coup that such incidents, involving the military and the police, are reported as having occurred.[3] Given that country information, together with my concerns about his reliability as a witness in relation to these incidents, I do not accept that the applicant husband was involved the claimed incident(s) in 2005.
[2] USDOS, ‘Fiji - Country Reports on Human Rights Practices - 2004’, 28 February 2005; and USDOS, ‘Fiji - Country Reports on Human Rights Practices - 2005’, 8 March 2006.
[3] See, for example USDOS, ‘Fiji - Country Reports on Human Rights Practices - 2006’, 6 March 2007; USDOS, ‘Fiji - Country Reports on Human Rights Practices - 2007’, 11 March 2008; USDOS, ‘Fiji - Country Reports on Human Rights Practices - 2008’, 25 February 2009; and USDOS, ‘2009 Country Reports on Human Rights Practices - Fiji’, 11 March 2010.
It follows from this finding that I also do not accept that, to the extent the applicant husband is suggesting that is the case, he would be more likely to be recalled to active service as he was involved in, and followed orders during, incidents abuse / mistreatment in the past. He also said in his evidence that his [specialist 1] training and service with [Unit 1] was another reason the Fijian military would consider him suitable or valuable in such claimed operations. However, both his [specialist 1] training (in 2004) and his service with [Unit 1] (2002-2005) is now some 18-20 years in the past and, given the passage of time, I do not accept such service history would be a factor in relation to any decision to recall the applicant husband to active service.
If the applicant husband were to return to Fiji, I accept he would still be in the reserves of the RFMF and subject to recall to active duty. Any such recall to active service would be by way of a proclamation by the Governor-General, where the Governor-General considered it “advisable to do so by reason of invasion, war or danger or any of them or by reason of any internal emergency threatening the security of life or property to quell which the available civil force is deemed by him inadequate …”.[4] However, DFAT notes in its most recent report that it is not aware of any recent examples of this occurring.[5] I raised this issue at the hearing and the applicant husband said that things are not stable in Fiji, there is a new government, but it is only 12 months old, and anything can happen in Fiji. Were something to happen, the Governor-General would call up the reservists. The applicants’ legal representative also made some oral submissions at the end of the hearing. She said, among other things, that the DFAT report had been issued prior to the change of government in Fiji; the Commander of the RFMF had criticised the new government in early 2023; that the military in Fiji had a big interest in not changing the Constitution, especially in relation to the military’s powers; and this had led to tussles between the Commander and the Prime Minister. She flagged she may provide further country information, however, as discussed above, no further material was received by the Tribunal prior to the date of this decision.
[4] Chapter 81 of Laws of Fiji, Royal Fiji Military Forces, s 20 (see email and submission of 29 November 2023).
[5] DFAT, ‘DFAT Country Information Report Fiji’, 20 May 2022.

Country information confirms that in December 2022 elections, after 16 years in power, Prime Minister Bainimarama’s FijiFirst Party failed to win a majority; FijiFirst won the popular vote (42.5 per cent) but only won 26 seats, just short of the 28 needed to form government.[6] The new Prime Minister, Sitiveni Rabuka, leads a three-party coalition, which holds a slim majority in parliament.[7] Rabuka instigated both 1987 coups and served as Prime Minister between 1992 and 1999.[8] International observers assessed the electoral process as being free and fair overall, despite some irregularities.[9] DFAT has reported there has been no significant political unrest or deterioration of government functions since the Rabuka government was elected and the political situation in Fiji remains stable.[10] Country information suggests the transition of power since December 2022 has been peaceful, with the military so far refusing to intervene.[11] The head of Fiji’s military forces, Commander Kalouniwai, refused to support calls from the (now former) Police Commissioner to send troops into the streets after the election result was announced.[12] In mid-January 2023, Commander Kalouniwai issued a critical statement that the government was going too far too fast; he was rebuked and has since publicly expressed support for the new government.[13] In June 2023, an unsourced document circulated on social media calling for a military takeover. FijiFirst denied responsibility for the document and Commander Kalouniwai dismissed rumours the military would intervene to overthrow the government.[14] In July 2023, Commander Kalouniwai reiterated that a coup would not occur.[15] On 1 January 2024, the Rabuka government exceeded the longest term of any Fijian government that came into office through a peaceful transfer of power; and although the Coalition government is facing some tensions (including a very recent sex scandal), it remains stable for now.[16]
[6] USDOS, “Country reports on Human Rights practices for 2022 - Fiji’, 20 March 2023; ‘Fiji’s new politics', Interpreter, Lowy Institute for International Policy (Lowy Institute), 17 January 2023; 'Fiji: A chance to stop political history repeating', Interpreter, Lowy Institute, 14 February 2023; ‘Cautious Optimism for Fiji’s Coalition Government', Australian Institute of International Affairs, 8 March 2023; and ‘Fiji elections 2022: Bainimarama loses parliamentary majority as count finalised’, The Guardian, 18 December 2022.
[7] 'Fiji - In brief', Economist Intelligence Unit, n.d., Accessed 19 June 2023; and ‘Fiji’s new politics’, The Interpreter, Lowy Institute, 17 January 2023.
[8] DFAT, ‘DFAT Country Information Report Fiji’, 20 May 2022.
[9] 'Freedom in the World 2023 - Fiji', Freedom House, 31 August 2023; and USDOS, 'Country Reports on Human Rights Practices for 2022 - Fiji', US Department of State, 20 March 2023.
[10] DFAT, ‘Fiji 20230621135833 - Country Information - Political Update', 2 August 2023.
[11] ‘Can Fiji keep its democracy in 2023?’, East Asia Forum, 3 February 2023; and ‘The number behind Fiji’s coup culture’, Australian Strategic Policy Institute, 1 February 2023
[12] ‘Can Fiji keep its democracy in 2023?’, East Asia Forum, 3 February 2023.
[13] ‘The number behind Fiji’s coup culture’, Australian Strategic Policy Institute, 1 February 2023
[14] ‘Police investigating a leaked unsourced seditious document’, Fiji Village, 29 June 2023; ‘Fiji police investigating source of leaked document calling for military intervention’, Radio New Zealand, 29 June 2023; 'Investigation ongoing into leaked RFMF letter', FBC News, 7 August 2023; and ‘Fiji Military true to its role: Commander Kalouniwai’, Pacific News Service, 3 July 2023.
[15] ‘No coup says RFMF Commander', FBC News, 20 July 2023.
[16] ‘Fiji’s tenuous grip on political stability’, East Asia Forum, 16 January 2024; and ‘Fiji hit by sex scandal as Australia’s eSafety Commissioner orders removal of ‘intimate images’’, ABC news, 30 January 2024.
Based on this country information, and notwithstanding the submissions by and on behalf of the applicant husband, I consider the political situation is generally stable. I acknowledge that as the current government is formed by a coalition, with a slim majority, there may be some changes in such a coalition within Parliament that may create a level of political instability from time to time. However, there is little evidence to support the possibility of a coup. In particular, it is highly speculative to suggest circumstances may arise in Fiji, now or in the reasonably foreseeable future, that would lead the Governor-General to issue a proclamation to call up reservists, such as the applicant husband. I find that if he returns to Fiji, now or in the reasonably future, there is not a real chance that he would be called back to active service in the Fijian military. It follows that there is not a real chance of any harm to the applicant husband and his family, from any such recall to active service.
The applicant husband provided evidence in his 2021 statutory declaration and at the hearing that demonstrates he and the other applicants have successfully established themselves in Australia. He is working, paying taxes, and contributing to his local community through his church. I have no doubt that he, and the other applicants, would continue to contribute to the community in the future. However, none of these factors are relevant to the grant of a protection visa.
Considering the findings set out above and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicants return to Fiji now or in the reasonably foreseeable future, they face a real chance of harm for any reason. The applicants, individually, collectively, or as a family, do not face a real chance of persecution, if returned to Fiji, now or in the reasonably foreseeable future.
For the reasons given above, the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
For the reasons set out above I have found that there is not a real chance of harm to any of the applicants for any reason were they to return to Fiji. As ‘real risk’ and ‘real chance’ involve the application of the same standard,[17] the applicants also do not face a real risk of any harm in Fiji. I am not satisfied that the applicants, individually, collectively, or as a family, face a real risk of significant harm in Fiji.
[17] MIAC v SZQRB (2013) 210 FCR 505.
The Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Mark Oakman
Member

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

[2024] AATA 1047

5 February 2024

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Immigration

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Procedural Fairness

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