2111749 (Refugee)

2111749 (Refugee) [2023] AATA 4819 (4 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Andrew Wun Nam Au (MARN: 1686684)
CASE NUMBER:  2111749
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Fraser Robertson
DATE:4 December 2023
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 December 2023 at 2:04pm
CATCHWORDS
REFUGEE – protection visa – Fiji – indigenous Fijian – political situation – father assaulted in 2007 by the military government – economic situation – unemployed due to a lack of jobs – corruption – complementary protection criterion – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
GLD18 v Minister for Home Affairs [2020] FCFCA 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
INTRODUCTION

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 27 August 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (Act).
BACKGROUND
The applicant is a [age]-year-old male from Fiji. The applicant last arrived in Perth [in] April 2020 as the holder of an Electronic Travel Authority (Class UD) (Subclass 601) visa.
The applicant applied for a protection visa on 25 March 2020 (PV Application).[1]
[1] See Application for a protection visa, Form 866, Parts A, B and C.
The applicant was not invited to attend an interview with the Department.
The delegate refused to grant the applicant a protection visa. The delegate was not satisfied that applicant was a person in respect of whom Australia owes protection obligations by reason of either ss 36(2)(a) or 36(2)(aa) of the Act.
REVIEW APPLICATION
The applicant applied to the Tribunal for review of the delegate’s decision on 2 September 2021. The applicant has provided a copy of the delegate’s decision record and a copy of the notification of the refusal to the Tribunal.
The applicant was represented in respect of the review application by Mr Au of Evangel Legal.
Hearing invitation and response
The applicant was invited to attend a hearing before the Tribunal on 4 December 2023 to give evidence and present arguments.[2]
[2] Migration Act 1958 (Cth), s 425.
The applicant responded to that hearing invitation (Hearing Response). The Hearing Response did not identify any witnesses (other than the applicant) to give evidence and did not indicate that the applicant intended to provide any further documents to the Tribunal.
Hearing
The applicant appeared before the Tribunal on 4 December 2023 to give evidence and present arguments.
ISSUE AND RELEVANT LAW
A summary of the relevant law and an extract of key provisions of the Act is set out in the attachment to this decision.
In making my decision, I have had regard to the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs together with the most recent country information report prepared by the Department of Foreign Affairs and Trade (DFAT).[3]
[3] 'DFAT Country Information Report Fiji', Department of Foreign Affairs and Trade, 20 May 2022, 20220520095336 (2022 DFAT Report).
The issue in this application is whether the applicant meets the refugee criterion for protection contained in s 36(2)(a), or, alternatively, the complementary protection criterion contained in s 36(2)(aa) of the Act.
ANALYSIS, FINDINGS AND REASONS
For the following reasons, I have concluded that the decision under review should be affirmed.
Country of nationality
The applicant claimed to be a citizen of the Republic of Fiji. The applicant travelled to Australia on a passport which appears to have been regularly issued by that country.
I am satisfied that the applicant is a Fijian citizen as claimed. I find that the Republic of Fiji is the applicant’s country of nationality and the receiving country.
The applicant’s personal background
The applicant was born in [year] in [City 1], Fiji. He claims to be an indigenous Fijian, who are known as iTaukei. The applicant’s parents continue to live in Fiji, although at the time of the hearing his mother was in Melbourne on a visitor visa. The applicant has [number of] siblings, including a sister who he describes as a half-sibling.
Growing up the applicant was a talented [Sports 1] player who was invited to play with the Fijian national team. He travelled internationally to compete from the age of [age].
The applicant’s brother, [Mr A], travelled to Australia in 2010. The applicant indicated that he eventually obtained a partner visa and is now an Australian citizen. He lives in Melbourne. His half-sister also lives in Melbourne. His other brother lives in a village in Fiji with his wife and [number] children.
The applicant completed both primary and secondary school in Fiji.
After the applicant finished secondary school, he worked as a [Occupation 1] working 40 or more hours a week. He did this job for about four years claiming that he eventually resigned because he had “had enough of the nightlife”. He claims that this led to him being unemployed for eight months during which period he was living at home and his mother was supporting him. The applicant claimed that money really wasn’t a necessity for him, that he didn’t have much in the way of expenses and that the accommodation and food provided by his mother was sufficient to support him.
After that period of unemployment, the applicant claims that he went back to being a [Occupation 1] at a different [workplace]. He was again working 40 or more hours a week. After about a year he resigned from this employment because he had, again, “had enough of the nightlife”.
Growing up neither of the applicant’s parents ever worked. He claims that his family ‘lived off the land and the sea’. His father worked on the “family” farm, which he claims is presently being worked by his uncles. The applicant further explained that during fishing season that his family, including himself, would fish at night and sell the catch during the day.
The applicant claimed that other than what was provided for by the farm, his family only really needed to buy sugar, salt and soap. The applicant claimed that if the income from fishing was not sufficient to buy sugar, salt and soap that they would simply go without.
The applicant has an extensive migration history. The applicant’s passport demonstrates that he travelled to Australia on six occasions [between] September 2015 and when he last arrived in Australia [in] December 2019. On the first occasion the applicant travelled on a Short Stay Activity visa to represent Fiji in [Sports 1] [in City 2]. On each other occasion he travelled on a visitor visa and was, he claims, supported financially by his brother both in terms of the flights and whilst he was here.
Since he has been in Australia he has worked in the [specified] industry, as a [Occupation 2]. The applicant has a partner in Australia and is expecting his first child in March this year. The applicant claimed that they have been in a relationship for around a year. His partner is an Australian citizen.
The applicant’s claims
The applicant’s PV Application claimed that he left Fiji because of corruption and unfair treatment towards native Fijians. The applicant claimed that he was unable to find employment since he had left high school and his father was brutally assaulted by the military government for no reason.
The applicant claimed that he attempted to move to an outer village to get away from the high cost of living in [City 1]. The applicant claimed that there would soon be civil war in Fiji which would result in a “blood bath”.
The applicant further claimed that if he was returned to Fiji that he would be mistreated and possibly assaulted by the current military government because of his opinion. The applicant claimed that protection was not available to him because the authorities do not care about native Fijians.
In support of his PV Application, the applicant provided his identity documents, travel history and a letter. That letter claimed:
…Since the Fiji military coup 2006 by the current Bainimarama government, Fiji is not a safe place any more for youths like myself.
I've been unemployed now for almost 3 years due to lack of jobs in Fiji. The cost of living is very expensive and the people of Fiji are finding it hard to put food on the table while the government officials are living a lavish life.
Back in 2007 i witness my dad being brutally assaulted by the same military government that's running today for no reason at all and i couldn't do a thing about it prevent that as i was only a kid back than but that vision will stay with me forever and i'm also scared that the same might happened to me. My father spent 2 months in hospital recovering from that brutal assault.
I'm scared for my life that in the years to come something worse is going to happen which might lead to people like myself that stand against the current government being refused to leave Fiji when i go back. …
During the hearing the applicant indicated that [Mr A] had helped him fill out the protection visa application. It later emerged during the applicant’s evidence that not only had [Mr A] filled it out for him, but the applicant had also not read the application and was mostly unaware of the content of the application. Two examples suffice.
First, in his PV Application, the applicant claimed to have performed farming in Fiji. At the hearing, the applicant denied ever having done so. When I put to him the inconsistency between his evidence and his protection visa application, the applicant claimed that his brother had typed that and he had only read “a few bits” of the application before he submitted it.
Second, in his PV Application, the applicant claimed that he had moved to an outer village to escape the high cost of living in [City 1]. During the hearing, the applicant explained that he moved to [City 1] when he was [age] years old and denied ever having moved away from [City 1] after that, whether to avoid the high cost of living or otherwise. When I asked the applicant if he read that aspect of the PV Application, the applicant said no and when I asked him why not, he said “I honestly don’t know”.
Claims at the hearing
When I asked the applicant why he applied for the protection visa, he claimed that the old government wasn’t “doing any good for his family”. He explained that the former Prime Minister had attempted to assault another politician and a video of that assault was being shared on social media. The applicant claims that his [relative], who was employed by the military, shared the video and had his employment terminated as a result.
The applicant was aware that the government in Fiji had changed. When I asked the applicant why he could not return to Fiji now his evidence was that he no longer had any fear of returning to Fiji but that he wanted to stay in Australia because his partner was due to have his daughter in March 2024.
The applicant’s evidence was that he no longer claimed to be owed protection by Australia, either as a refugee or under complimentary protection. Candidly, the applicant’s evidence was that he did not fear either serious or significant harm if he was to be returned to Fiji.
In light of the applicant’s evidence and following an adjournment, I asked the applicant’s representative to articulate for me what claims it was to be contended that I had to deal with in the review application. The applicant’s representative indicated that they will be pressing the original claims and sought that I consider those claims, with the additional information given by the applicant. I have done so.
Consideration of the applicant’s claims
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.[4] The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
[4] AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227, [43] (Kenny, Griffiths and Mortimer JJ); EIG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 804 at [148] (Ladhams J).
When assessing the claims made by an applicant, I am not required to uncritically accept any or all of the allegations made by an applicant.[5] I do not need rebutting evidence before I can find that a particular factual assertion is not made out.[6]
Claims
[5] SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816 (Middleton J).
[6] CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [65] (McKerracher, Griffiths and Rangiah JJ); Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 301; 34 ALR 347 at [7] (Heerey J).
Political situation
Country Information
The DFAT report dated 20 May 2022 indicated that the main opposition parties at the time of writing are the Social Democratic Liberal Party (SODELPA) with 21 members of parliament, and the National Federation Party (NFP) with three.[7] SODELPA and (to a lesser extent) the NFP draw their support from iTaukei.[8] In May 2022, DFAT assessed that politics in Fiji today is no longer characterised by the unrest of the past[9] and that the 2018 election was calm and orderly; international observers found the conduct of the election to be credible and that the outcome ‘broadly represented the will of Fijian voters’.[10] Whilst, SODELPA leader (and 1987 coup leader) Sitiveni Rabuka was charged with corruption offences in the lead-up to the 2018 election, he was released on bail and later cleared.[11]
[7]     2022 DFAT Report, [3.31].
[8]     2022 DFAT Report, [3.31].
[9]     2022 DFAT Report, [3.32].
[10]    2022 DFAT Report, [3.32].
[11]    2022 DFAT Report, [3.34].
In respect of the present political situation, DFAT reports that:[12]
(a)following the December 2022 Fijian general election, no political party won a clear majority of seats in Parliament to form Government. After ten days of inter-party negotiations, a coalition of three parties (The People’s Alliance, National Federation Party and Social Democratic Liberal Party), led by Prime Minister Sitiveni Rabuka, formed government;
(b)DFAT is not aware of any reports of former Prime Minister Bainimarama or those loyal to him or his party pursuing nationals who publicly opposed him or his party since the change of government in December 2022;
(c)DFAT is not aware of any reports of the Republic of Fiji Military Forces pursuing nationals who publicly opposed former Prime Minister Bainimarama or his party since the change of government in December 2022; and
(d)DFAT is not aware of any credible reports that the new government in Fiji has harassed or ill-treated any supporters of former Prime Minister Bainimarama.
[12] See 'Fiji 20230621135833 - Country Information - Political Update', Department of Foreign Affairs and Trade, 02 August 2023, 20230803112036.
In May 2023, members of the FijiFirst party were suspended from Parliament and lost their entitlement to vote.[13] This prompted some concern[14] about the possibility of a coup. However, once the FijiFirst party had complied with the requirements of the Political Parties (Registration, Conduct, Funding and Disclosures) Act 2013, the suspension was lifted on 9 June 2023.[15] The prospect of another coup was dismissed by the commander of Fiji’s military.[16]
[13] See Lifting of suspension of the registration of the FijiFirst Party - Parliament of the Republic of Fiji See ‘Fiji military chief dismisses suggestions of a coup’, RNZ Pacific, 20 July 2023, accessible at >
Further, DFAT assesses that:
Fiji is generally stable and secure. The most recent elections in 2018 were orderly and free from violence. Crime rates, especially for violent and organised crime, are generally low. The risk of terrorism is low. Organised crime exists in Fiji, but it is not large-scale and is unlikely to affect people’s day-to-day lives. Some alcohol-related street violence occurs. Domestic violence is a serious problem (see Women). Accusations of police violence are commonly reported and regularly investigated (see Police).[17]
Resolution of claims
[17] 2022 DFAT Report, [2.34].
I accept that the applicant’s father was assaulted in 2007 by the military government. This was proximate to the Fijian coup. However, I am not assessing the applicant’s claims against Fiji in 2007 or even 2020 when the PV Application was filed. I must assess the applicant’s claims as they relate to Fiji at present.
In any event, at the hearing, the applicant’s evidence was clear that he no longer fears harm in Fiji from the government or military.
The applicant gave evidence that when he was in Fiji he was not involved in politics and did not express his political opinions publicly. The applicant did not claim to intend to express his political opinions publicly if he was returned to Fiji.
I consider that the country information is consistent with the concession made by the applicant that he would not face serious harm from the government of military in Fiji if he were to return. Politics in Fiji is no longer punctuated by the unrest of the past and is stable.
The applicant’s representative submitted that, notwithstanding the absence of a subjective fear of harm on the part of the applicant, it was still open to me to conclude that he was a refugee. However, the criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. When I put to the applicant that a subjective fear was required, the applicant’s representative agreed and did not persist with the submission.
The applicant does not have a genuine subjective fear of serious harm from the government or military in Fiji if he were to return to Fiji because of his political opinion or for any reason. For that reason, any fear of harm is not well-founded and there is not a real chance of persecution on this basis.
I am further not satisfied that the applicant would, in any event, face a real chance of serious harm in Fiji from the government or military for reasons of his political opinion or, indeed, for any reason.
It follows that I find that the applicant does not have a well-founded fear of persecution for a reason articulated in s 5J(1)(a) of the Act on this basis.
Economic situation
Country information
Fiji is defined by the World Bank as an upper-middle income country.[18] The World Bank’s lead economist for the Pacific, estimates that GDP growth rates are expected to exceed pre-pandemic levels in 2024.[19] Most Fijians are employed in the informal sector, particularly in the tourism, agriculture and aquaculture industries.[20]
[18]    2022 DFAT Report, [2.7].
[19]    ‘COVID-19’s impact on Fiji’, The Borgen Project, 26 March 2023, 20230712121717.
[20]    2022 DFAT Report, [2.18].

There is limited social welfare in Fiji.[21] One social welfare program, the Poverty Benefit Scheme provides a monthly payment of FJD 35 ($23 AUD) per adult and FJD 17 ($11 AUD) per child for up to four household members and a FJD 50 ($430 AUD) food voucher.[22] Fijian culture places importance on kinship and familial support.[23]
[21]    See generally, ‘Social assistance policy: protecting the poor and vulnerable’, United Nations Women, undated, 20230712122715
[22]    Social assistance policy: protecting the poor and vulnerable’, United Nations Women, undated, accessed 9 June 2023, p.9, 20230712122715
[23]    2022 DFAT Report, [2.23]? Taken from common claims.
In 2022, the overall unemployment rate was 4.3 per cent (down from a peak of 4.9 per cent in 2021).[24] The minimum wage is currently FDJ 2.68 ($1.75 AUD) per hour[25], which does not typically provide a decent standard of living for a worker and their family.[26] A significant part of the Fijian population lives in poverty.[27] However, subsistence farming and kin-based wealth distribution leads to lower rates of extreme poverty than might otherwise be expected.[28]
[24]    ‘Unemployment, total (% of total labor force)’, The World Bank, undated, 20230712125355.
[25]    2022 DFAT Report, [2.19].
[26]    ‘Country Reports on Human Rights Practices for 2022 - Fiji', US Department of State, 20 March 2023, pg 25, 20230322095436.
[27]    2019-20 Household Income and Expenditure Survey', Fiji Bureau of Statistics, August 2021 pgs IX & 8, 20210916140700; 'FY2021-FY2024 Country Partnership Framework for Republic of Fiji', World Bank Group, 17 December 2020, pg18 at [27] and fig. 1, 20220131073347; ‘World Bank Statement: Update on Fiji 2019-2020 Household Income and Expenditure Survey’, The World Bank, undated, accessed 9 June 2023, 20230712122405.
[28]    2022 DFAT Report, [2.9].
Some indigenous Fijians feel a sense of economic or political marginalisation.[29] They are more likely to experience poverty than are Indo-Fijians, but there are rich and poor among both groups.[30]
Resolution of claims
[29] 2022 DFAT Report, [3.9].
[30] 2022 DFAT Report, [3.9].
The applicant claimed to have been unemployed due to a lack of jobs in Fiji. He did not claim that his inability to obtain employment was because he was being discriminated against for a reason set out in s 5J(1)(a) of the Act.
Insofar as his representative attempted to claim such discrimination during the hearing, I reject that submission. The applicant’s evidence was clear that he was not aware that he had ever been refused employment because of his race or nationality. Any such submission was purely speculative and had no basis in fact.
Moreover, I reject that he moved from [City 1] to avoid the high cost of living as was claimed in the PV Application. I prefer the applicant’s evidence at the hearing that he did not do so and note his evidence about his lack of knowledge of the content of his PV Application.
I put to the applicant that in circumstances where his parents were able to support his family without employment, why should I accept that he wouldn’t be able to do the same. The applicant claimed that Fiji is different now than back in the early 90s and 2000s. I put to the applicant that the current country information indicates subsistence farming continues to happen and, in those circumstances, why should I accept that the situation is different from the early 90s and 2000s in that regard. The applicant responded to indicate that he considered that to be a “really good question”, before responding “I’ve got nothing”.
At this point, the applicant’s representative interrupted to suggest that he claimed that his uncles farmed the farm. Whilst the applicant did indicate that in his evidence, he did not suggest that his uncles would deprive him of access to subsistence from the farm as he had enjoyed when he was formerly in Fiji. Indeed, I discussed the country information about subsistence farming and the importance of kinship support, the applicant accepted that he would be supported if he were to be returned to Fiji.
The applicant is still young and has a work history in Fiji. He has the benefit of playing sport at an international level. The applicant has a strong work history in Australia and has gained additional technical skills in [Occupation 2]. I am not satisfied that the applicant would remain unemployed for a long period if he were returned to Fiji.
The applicant’s brother has historically offered a significant source of support to the applicant. There is no reason to expect that they would not continue to do so if he was returned to Fiji and during the period that the applicant was looking for work.
I note that, without more, economic circumstances are circumstances of general application in a country and lack the degree of particularity required to give rise to protection obligations under the refugee[31] or complementary protection criteria.[32] The applicant has not provided any evidence regarding his personal claims for me to be satisfied that his particular circumstances would lead him to face a real chance or real risk of serious or significant harm on return to Fiji for reasons of unemployment or the lower earnings in Fiji.
[31] Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 at [99] (McHugh J); SZTAL v Minister for Immigration [2016] FCAFC 69.
[32] Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 191 at [60] (French CJ, Sackville and Healy JJ); and BBK15 v Minister for Immigration and Border Protection [2016] FCA 680 at [32] (Buchannan J)
Based on the applicant’s evidence, I find that the applicant would be able to find employment in Fiji and that he would have access to the necessary means to subsist even if he were unemployed. In that regard, I note that he was able to subsist whilst previously unemployed and his level of subsistence was such that he was still able to perform at a level high enough for the Fijian national team in [Sports 1].
I am not satisfied that there is a real chance that the applicant will face serious harm on account of the economic situation in Fiji. I am also not satisfied that the impact of the economic situation would be for the essential and significant reason of one of the grounds in s 5J(1)(a) or that it would involve systematic and discriminatory conduct. I am also not satisfied that the applicant would be unable to subsist on account of the economic situation in Fiji if he were returned there.
For the above reasons, I am not satisfied that the applicant has a well-founded fear of persecution for a reason set out in s 5J(4)(a) of the Act in Fiji because of the economic situation.
Ethnicity
Indigenous Fijians are the majority ethnic group in Fiji and enjoy significant social, economic and political capital. Overall, DFAT assesses there is no official discrimination against indigenous Fijians.[33]
[33] 2022 DFAT Report, [3.10].
The applicant did not give any evidence which would enable me to find that he would suffer any discrimination in Fiji on account of his being an indigenous Fijian. I have already dealt above with the claim that the applicant would be denied employment because of his ethnicity.
I am not satisfied that the applicant faces a real chance of serious harm for the essential and significant reason of his ethnicity.
Corruption
DFAT assesses that:[34]
Corruption is not a significant problem. A 2021 Transparency International study found 62 per cent of Fijians believe politicians are corrupt and 61 per cent believe businesses obtain government contracts through corruption. However, only 5 per cent of Fijians reported paying a bribe to obtain a service in the past year, the lowest by far of the Pacific countries studied. An anti-corruption commission exists and corruption prevention is covered as part of the school curriculum. Overall, the day-to-day risk of corruption is low.
[34] 2022 DFAT Report, [2.10].
I asked the applicant about corruption in Fiji by reference to that country information. In response, the applicant claimed that a couple of weeks ago “one of [his] best mates parents” were pulled over for speeding in Fiji and offered the opportunity to bribe a police officer rather than pay the fine. The applicant heard about it from a Facebook post.
I asked the applicant how he knew that was true. In response, the applicant then claimed that it happened to him too. The applicant explained that in 2015 he was stopped by Police and offered the chance to pay them 50 FJD or get a ticket of 30 FJD. The applicant claims that he told them just to give him the ticket. There was no difficulty with him rejecting the bribe and they gave him the ticket instead.
I put to the applicant that instance of corruption was not suggestive of amount to serious or significant harm. The applicant agreed.
The applicant was not otherwise able to point to any evidence that corruption in Fiji would amount to serious or significant harm or that he would face a real chance of being exposed to that harm.
I find that the applicant does not have a well-founded fear of persecution for a reason set out in s 5J(1)(a) on account of any corruption in Fiji.
Cumulative consideration of the claims
I have also considered the applicant’s claims cumulatively. Considering my factual findings, I do not consider that there is any feature of any of the above claims that when combined with one or more or all of the other claims would lead me to conclude that the applicant would face a real chance of serious harm in the reasonably foreseeable future or otherwise has a well-founded fear of persecution within the meaning of the Act.
Conclusion: Refugee Criteria
For the reasons set out above, I find that the applicant is not a refugee within the meaning of the Act.
Complementary Protection
In order to be entitled to complimentary protection, there has to be 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 they will suffer significant harm.
I have considered above whether there is a real chance that the applicant would be face serious harm in relation to any of his claims above. 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.[35]
[35] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 at [246] (Lander and Gordon JJ), at [296] (Besanko and Jagot JJ), and at [342] (Flick J).
I note, in particular, that beyond the minor evidentiary weight to be given to the absence of fear that a particular event might occur in the future, the applicant’s subjective fear is not relevant to the complimentary protection assessment.
I do not accept that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia and returned to Fiji that there is a real risk he would suffer significant harm.
Considering the applicant’s claims both individually and cumulatively, I am not satisfied that 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 as required by s 36(2)(aa) of the Act.
For the reasons set out above, whilst I accept the applicant does not wish to return to Fiji, as observed by Allsop CJ and Mortimer J (as her honour the Chief Justice then was) in GLD18 v Minister for Home Affairs:[36]
The complementary protection criterion is not intended to be used to address the many and varied circumstances in which – in the framework of ordinary human experience – it may seem to be unfair, immoral, deeply upsetting or disturbing for a person to be removed from Australia against her or his will.
[36] [2020] FCFCA 2 at [50] (Allsop CJ and Mortimer J).
For the above reasons, I am not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of removal to Fiji that there is a real risk that the applicant will suffer significant harm as that term is exhaustively defined by s 36(2A) of the Act.
The applicant is not owed complimentary protection.
DECISION
I affirm the decision not to grant the applicant a protection visa.
Fraser Robertson
Member

ATTACHMENT - RELEVANT LAW
Criteria for the grant of 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, they are a person in respect of whom Australia has protection obligations either:
(a)under the ‘refugee’ criterion in s 36(2)(a);
(b)on other ‘complementary protection’ grounds; or
(c)because they are 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.[37]
[37] Migration Act 1958 (Cth) s 5H(1)(a).
A person has a well-founded fear of persecution if:[38]
(a)they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion;
(b)if they were returned to the country of their nationality, there is a real chance they would be persecuted for one or more of those reasons; and
(c)the real chance of persecution relates to all areas of the relevant country.
[38] Migration Act 1958 (Cth) s 5J(1).
A ‘real chance’ is one that is not ‘remote’ or ‘far-fetched’ and can arise even when the probability of harm occurring is less than 50%.[39]
[39] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389 (Mason CJ), 398 (Dawson J); 407 (Toohey J), 429 (McHugh J).
If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a),[40] that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution.[41] Further, the persecution must involve serious harm to the person[42] and systematic and discriminatory conduct.[43]
[40]    Namely, race, religion, nationality, membership of a particular social group or political opinion.
[41]    Migration Act 1958 (Cth), s 5J(4)(a).
[42]    Migration Act 1958 (Cth), s 5J(4)(b). Examples of conduct amounting to serious harm are contained in s 5J(5) which appears in the attachment to this decision.
[43]    Migration Act 1958 (Cth), s 5J(4)(c).
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–5LA, 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), they may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (the ‘complementary protection criterion’).[44]
[44] Migration Act 1958 (Cth) s 36(2)(aa); DQU16 v Minister for Home Affairs [2021] HCA 10; 273 CLR 1 at [13] (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ); SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 at [1]–[5] (Kiefel CJ, Nettle, Gordon JJ).
The ‘real risk’ test imposes the same standard as the ‘real chance’ test.[45]
[45] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 at [242] – [246] (Lander and Gordon JJ) (with whom Besanko and Jagot JJ at [297] and Flick J at [342] agreed).
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.
Relevantly, ‘significant harm’ for these purposes is exhaustively defined in s 36(2A).[46] A person will suffer significant harm if they will:
(a)be arbitrarily deprived of their life;
(b)have the death penalty carried out on them;
(c)be subjected to torture;
(d)be subjected to cruel or inhuman treatment or punishment; or
(e)be subjected to degrading treatment or punishment.
[46] Migration Act 1958 (Cth), s 5(1).
‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’ and ‘torture’ are defined in s 5(1) of the Act. Those definitions are set out in full in an attachment to this decision.

100. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country.[47] These arise where:
[47] Migration Act 1958 (Cth), s 36(2B).
(a)it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm;
(b)the applicant could obtain, from an authority of the country, protection such that there would not be a real risk[48] that the applicant will suffer significant harm; or
[48] The level of protection must be such as to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147 (Lander, Jessup and Gordon JJ).
(c)the real risk is one faced by the ‘population of the country generally’ and is not faced by the applicant personally.

101. 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.[49]
[49] BBK15 v Minister for Immigration and Border Protection (2016) 241 FCR 150 at [32]; SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245 (Rares J); MZAAJ v Minister for Immigration and Border Protection [2015] FCA 478.
102. Section 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. 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.
Mandatory considerations
103. I must take 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.[50]
[50] See Migration Act 1958 (Cth), s 499 together with Ministerial Direction No.84 made under that section.
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.
…

[2023] AATA 4819

4 December 2023

Key Legal Topics

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Immigration

Statutory Interpretation

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Procedural Fairness

Standing

Statutory Construction