2205045 (Refugee)

[2024] AATA 1963

2205045 (Refugee) [2024] AATA 1963 (19 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2205045

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Andrew Verduci

DATE:19 February 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 19 February 2024 at 10:51am

CATCHWORDS
REFUGEE – protection visa – Fiji – economic conditions – loss of employment – political opinion – change in government – racial discrimination against indigenous Fijians – single gay man – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

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

STATEMENT OF DECISION AND REASONS

1. The applicant is a citizen of Fiji who arrived in Australia in January 2020 on a Tourist (Subclass 600) visa. He lodged an application for a Protection visa in May 2021 which was refused in March 2022 under s 65 of the Migration Act 1958 (Cth) (the Act). This is a review in relation to that decision.

   Protection visa application

2. The applicant claimed to be owed protection for the following reasons, which I have summarised:

   ·He was in Australia on tourist visa during the outbreak of COVID-19 and was unable to return to Fiji because of international travel restrictions. Whilst in Australia, he lost his tourism job in Fiji because of the economic downturn. There is no future for him back in Fiji.

   ·Indigenous Fijians are discriminated against and silenced for speaking up for indigenous rights. He has been verbally threatened by supporters of the former Government. Policies of the former Government are racially discriminatory.

   Delegate’s decision

3. The delegate did not accept that the applicant was a refugee within the meaning of the Act, or that he was a person who satisfied the complimentary protection criteria.

   Application for review

4. He applied for a review of the delegate’s decision in April 2022. He has given the Tribunal, among other things:

   ·a copy of the delegate’s decision;

   ·a selection of various written reports and articles about country conditions in Fiji;

   ·letters in support of the applicant’s character and desire to stay in Australia;

   ·employment references; and

   ·a written submission titled ‘My story’ dated 15 March 2024.

   Tribunal hearing

5. The applicant appeared before me on 14 February 2024 to give evidence and present arguments. I also received oral evidence from [Ms A] and [Mr B]. In accordance with the applicant’s request, an interpreter was arranged for the hearing. However, the applicant elected not to use the interpreter and I was satisfied with his ability to meaningfully participate during the hearing. At a point during the hearing, the video connection with the interpreter was lost. I immediately raised this with the applicant who advised that he did not require the interpreter brought back on-line, but that he would indicate to me if and when an interpreter might be required. An interpreter was not required for any aspect of the applicant’s own evidence, but the interpreter was brought back by video to hear from [Ms A].

   CRITERIA FOR A PROTECTION VISA

6. 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.

   Mandatory considerations

7. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Economic conditions

8. I accept the applicant’s evidence regarding his long history of employment in Fiji’s tourism sector. His evidence, including that he was employed by [Employer 1] at the time of travelling to Australia in 2020, has been consistent and is supported by document evidence. For the same reasons, I accept that COVID-19 caused his work hours to be reduced before ultimately leading to his termination because of travel restrictions which hit Fiji’s tourism sector particularly hard.[1] Consistent with his own evidence, including his letters from [Employer 1], I find that the loss of his employment was the direct result of the COVID-19 pandemic and that he was one of many people who lost their job during this time. I also accept this evidence to me that, if not for the international travel restrictions and the loss of his job in Fiji whilst he was already in Australia, he would have returned to Fiji at the end of his intended stay in Australia as he had done so many times previously.

   [1] DFAT Country Information Report Fiji, DFAT, published 20 May 2022, para [2.20].

9. The applicant expressed a concern about general economic hardship in Fiji, including low wages, low employment and a high cost of living. As I discussed with him during the hearing, I accept that tourism accounts for about 40per cent of Fiji’s pre-COVID-19 economy and that the pandemic caused significant disruption to the tourism industry.[2] Whilst I accept there is a likely to be a degree of economic and mental or emotional hardship as a result, reports also note the ongoing economic recovery,[3] including projected GDP growth rates expected to exceed pre-pandemic levels.[4] The applicant generally agreed with this assessment, but noted that the recovery is still taking a long time.

   [2] DFAT Country Information Report Fiji, DFAT, published 20 May 2022, para [2.8].

   [3] Fiji’s economy in an election, DevPolicy Blog, 5 July 2022.

   [4] COVID-19’s impact on Fiji, The Borgen Project, 26 March 2023.

10. Having regard to the applicant’s extensive employment history, including in Fiji and more recently in Australia, and all his other characteristic including but not limited to his age, gender, and sexual orientation, I find that he will not be denied employment in Fiji for reason of his race, religion, nationality, membership of a particular social group or his political opinion. I also find that any harm that the applicant might experience, such as unemployment or disparity in wages or conditions, for example, would be the result of general economic conditions in Fiji. The applicant did not claim, and there is no evidence to suggest, that it would involve the intentional infliction of degrading, cruel or inhuman treatment or punishment, torture or the arbitrary deprivation of his life. Accordingly, he does not face a real chance of serious harm for an essential and significant refugee reason, or a real risk of significant harm, in relation this claim.

    Political opinion

11. The applicant raised generalised claims relating to political instability, disagreement with certain government policies and a lack of freedom of speech or expression, including in media laws. The applicant’s evidence to me was that he never been directly affected by these issues. When discussed during the hearing, he explained that his concerns related generally to the former Bainimarama government. It was his evidence to me that he had not engaged in conduct critical of the government and had not been directly affected by media or trade union laws, for example. He did not suggest an avoidance of being politically engaged whilst in Fiji out of any fear of harm, and I find that this was not a factor influencing his behaviour in the past. The applicant is an articulate man with a knowledge of political issues as they relate to his home country, and I accept that he would like to see improvements in a range of areas including transport and the health system. Consistent with his past behaviour, however, I find that he will not engage in politically motivated conduct in Fiji in the future.

12. The change in government in December 2022 was also discussed, with the former Bainimarama government being replaced in elections by a coalition led by the new Prime Minister Sitiveni Rabuka of the People’s Alliance, together with the Social Democratic Liberal Party and the National Federation Party.[5] The applicant agreed that the change in government has brought a change in many government policies and priorities, including in relation to media laws, for example, and the lifting of travel bans on people critical of the former Bainimarama government.[6] In terms of submissions that he gave to me, it was noted that the article titled Periscope: Rule of Law Applies was dated 2021 and therefore pre-dated the 2022 elections. The other articles he provided were generally consistent in reflecting improved conditions following the 2022 elections. For the avoidance of doubt, I accept that the article titled [Title 1] refers to his former employer, [Employer 1], being involved in a trade union matter. When discussed with the applicant, his evidence to me was that he was not involved in that matter and was in no way directly or indirectly affected by it.

    [5] Fiji in brief, Economist Intelligence Unit, N.d., (accessed 15 February 2024)

    [6] Amnesty International Report 2022/23: The state of the world’s human rights, Amnesty International, 27 March 2023 (accessed 15 February 2024).

13. Based on his past actions and experiences, and the change in country conditions following the December 2022 elections, I find that the applicant does not face a real chance of serious harm, or a real risk of significant harm, for any reason related to an actual or imputed political opinion.

    Racial discrimination against indigenous Fijians

14. The applicant raised generalised claims about the treatment of indigenous Fijians. I accept, based on his evidence, that he is an indigenous Fijian. When asked for more detail about his own treatment or experiences, he described an employment situation where he believed an Indo-Fijian was given a job instead of him based on their ethnicity, even though he believed he was the better candidate. When asked how he knew, he said that it was not expressly said but he believed it because he knew he was the better candidate. There could have been a range of factors that lead to that decision being made, and I find it is only speculation on the applicant’s behalf. He also described general experiences of Indo-Fijian shopkeepers not being as friendly or warm to indigenous Fijians compared to some other customers, or some seeming to receive preferential treatment when waiting in line for some services, such as waiting time at a private medical clinic.

15. I discussed country information with the applicant that indicates indigenous Fijians are the majority ethnic group in Fiji and appear to enjoy a number of social, economic and political capital. Whilst some low-level discrimination may still exist, it appears to arise between both major ethnic groups and involve racist stereotypes against each other.[7] DFAT also assess that, overall, there is no official discrimination against indigenous Fijians. [8]The applicant agreed with this assessment. Whilst I accept that the treatment described might be unpleasant and unwelcome, I do not accept that it amounts to serious or significant harm.

    [7] DFAT Country Information Report Fiji, DFAT, published 20 May 2022, para [3.10].

    [8] DFAT Country Information Report Fiji, DFAT, published 20 May 2022, para [3.10].

16. Having regard to the above, and the accepted profile and characteristics of the applicant, I find that he does not face real chance of serious harm, or a real risk of significant harm, now or in the reasonably foreseeable future for any reason related to his ethnicity.

    A single gay or homosexual male

17. The applicant identified himself as being single and gay in his written submission to the Tribunal. I accept, based on the oral evidence of the applicant and his witness, [Mr B], that the applicant is a single gay man.

18. I discussed in some detail the applicant’s lived experiences as a single gay man living in Fiji generally, but also his home region of [Town 1] more specifically. I accept that he has been open with his immediate and extended family about being gay. This includes his elderly mother, approximately [age] years of age and living in Fiji, and his siblings in Fiji and Australia. His father is, regrettably, deceased. I also accept his evidence to have a large social network of gay friends in Fiji whom he would socialise and go out with and that he was open with his work colleagues.

19. He described having sexual encounters with other men, but not relationships or a partner or spouse. I find this is by the applicant’s own choice and not out of any fear or modification of behaviour.

20. He has not experienced discrimination from his family or wider community in [Town 1] despite being open about his homosexuality. At one point, he described being gay in [Town 1] as the ‘normal’. The applicant is also in regular contact with family and gay friends in Fiji and they are not raising issues of hostility, harassment or discrimination towards gay people when he speaks to them.

21. I also heard from [Mr B] during the hearing. His evidence was broadly consistent with the applicant, including that they are both gay men who would go out together in Fiji and in Australia. As a person who regularly returns to Fiji, his evidence was that the applicant’s close family and friends know and are accepting of him, but that Fiji is still a Christian society where you might be called names and/or humiliated in public for being gay. [Mr B] gave some examples of isolated instances of social harassment including when he was playing a male netball game and was accosted by others who said netball was only a game for women, which I accept occurred.

22. The applicant did not raise his status as a single gay man as a reason for fearing harm in his protection visa application or at any time before the delegate’s decision was made. Whilst it was included in his written evidence to me, I find that it was not raised as a claim, or integer of a claim, and that the applicant lacks any subjective fear based on this reason. According to the applicant, being a gay man had nothing to do with his application for a protection visa.

23. If am wrong about this being a claim, however, I am required to draw an inference adverse to this claim unless I am satisfied there is a reasonable explanation for it not being raised earlier. In the circumstances of this case, including the oral evidence of the applicant and [Mr B], I am satisfied there is a reasonable explanation for it not being raised earlier and I do not draw an inference adverse to the claim.

24. I have also considered country information regarding the treatment of gay people in Fiji. For example, DFAT assess that LGBTI Fijians, which includes the applicant, are at a moderate risk of official and societal discrimination and a moderate risk of violence. However, DFAT also reports that significant problems arise when LGBTI people do not, or cannot, come out to their families and/or are not accepted when they do. DFAT also suggests that a person’s location has an impact, with LGBTI people finding more acceptance in Suva, particularly in wealthier circles. The tourism industry also provides employment opportunities for LGBTI people, being highly international in its nature and more inclusive of LGBTI persons.[9]

    [9] DFAT Country Information Report Fiji, DFAT, published 20 May 2022, para [3.60]-[3.65].

25. The applicant was born in [Town 1] and has lived and worked there most of his life. His family, including his mother, still reside there. I therefore find that this is where he will live if he is returned to Fiji. Considering all the above, including the applicant’s own evidence and lived experiences as a single gay man living in [Town 1] where he enjoys the acceptance and support of family and friends, I find that he does not face a real chance of serious harm, or a real risk of significant harm, now or in the reasonably foreseeable future for any reason related to being a single gay man.

26. Considering his claims individually and cumulatively, I find that he does not face a real chance of serious harm, or a real risk of significant harm, now or in the reasonably foreseeable future for any reason.

27. For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

28. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa). I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

29. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

    DECISION

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

    Andrew Verduci
    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.

    …