2207476 (Refugee)

2207476 (Refugee) [2024] AATA 3879 (11 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2207476
COUNTRY OF REFERENCE:                   Fiji
MEMBER:James Horsley
DATE:11 April 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 April 2024 at 11:36am
CATCHWORDS
REFUGEE – protection visa – Fiji – internal investigator into work-related incidents – abused and threatened – application completed by another person without applicant’s knowledge of claims – written claims largely incorrect and abandoned at hearing – employment accepted – continued work before being dismissed for another reason – other employment, unhindered departure and return – working in Australia to support family in home country – ethnicity – Indigenous Fijian – country information – economic conditions – low-level ethnic discrimination between groups – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS

The applicant claims to be a [Age]-year-old Fijian national of indigenous Fijian (iTaukei) ethnicity and Christian faith. He last arrived in Australia [in] January 2020 as the holder of a Visitor visa (subclass 600).
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, they are 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), 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: 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.
CLAIMS AND EVIDENCE BEFORE THE DELEGATE
Protection visa application
On 27 April 2020, the applicant applied for a Protection visa.
According to his Protection visa application, he was born in [Town 1], [Province 1], [Division 1], Fiji. In response to questions in the Protection visa application in relation to his reasons for claiming protection, the applicant claimed he left Fiji because of his work in [Employer 1], where he was employed for 13 years. The applicant worked as an investigator and would sometimes be tasked with conducting internal investigations into the conduct of fellow [occupation 1s] in [Division 1].
[In 2007, Incident 1 happened]. As a Junior [employee] at the time, the applicant was assigned to the team investigating [the incident]. Due to his work on the investigation team, fellow [occupations 1s and 2s] assaulted and verbally abused him. The applicant also received death threats. On one occasion, he was taken to [a Workplace 1] and threatened by [occupation 2s].
These experiences left the applicant with emotional scars, which he will have live with for the rest of his life. The [occupations 2s and 1] were charged at the [Town 2] Police Station, but later released and [re-assigned].
The applicant spent most of his time working at the [Town 1 Workplace 2]. He also worked in [Province 1] and [Town 3 , where the abuse and intimidation continued. The applicant’s wife, also [an occupation 1], was [working] in [Town 1] and so he returned there to be with her.
[Former Prime Minister] Frank Bainimarama was a dictator and the situation in Fiji became worse after his election. Following his election, the applicant spoke out and wanted to quit [Employer 1].
As the applicant was a member of [Employer 1], he did not have anyone to complain to or protect him. His wife suggested that he should resign. In early 2018, the applicant resigned from [Employer 1] and found work at a [workplace 3] in [Location]. While there, he received threatening phone calls.
If he returns to Fiji, the applicant fears that he would be arrested and tortured by the military and police. He fears that he will be killed by them and, as such, he will be too fearful to walk on the street. The Police will do anything to stop people like the applicant from voicing their opinions.
In support of his Protection visa application, the applicant provided a copy of his Fijian passport.
The decision of the delegate
On 28 April 2022, a delegate of the Minister for Home Affairs refused to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The delegate did not offer the applicant an interview.
In essence, the delegate accepted that the applicant worked as [an occupation 1] in Fiji from 2005 to 2017. Even though the delegate found that the applicant’s claims about [Incident 1] were consistent with country information, the delegate did not accept the applicant was an investigator or was tasked with investigating [the incident] for several reasons, including:
·his claims lacked unique detail;
·he never claimed that other members of the investigation team were targeted;
·it was unclear why he specifically, as a Junior [employee], would be subjected to adverse interest;
·it is doubtful that [Employer 1] would not have safeguards or processes to protect [occupation 1s] conducting internal investigations;
·[Incident 1] occurred in 2007 but the applicant remained in [Employer 1] for another 10 years, which is ‘inconsistent with the level of claimed violence and harassment he alleges’;
·he remained in Fiji from 2017 to 2019, after he left [Employer 1];
·he first left Fiji in September 2019 and travelled to Australia; then returned to Fiji in November 2019, before travelling back to Australia in January 2020, which suggests he was of no adverse interest to the authorities; and
·his wife is [an occupation 1], and he has not raised any claims related to any harm to her or the Fijian authorities having any adverse interest in her following his departure from Fiji.
For these reasons, the delegate did not accept the applicant was involved in the [Incident 1] investigation, or that he was subjected to harm or adverse attention from fellow [occupation 1s].
Accordingly, it was assessed that Australia does not have protection obligations to the applicant under ss 36(2)(a) and (aa) of the Act.
On 23 May 2022, the applicant applied for a review of the delegate’s decision. This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal)
CLAIMS AND EVIDENCE BEFORE THE TRIBUNAL
Procedural history
In the ‘Response to Hearing Invitation’ form, received by the Tribunal on 22 February 2024, the applicant requested the Tribunal to take oral evidence a Pastor [name redacted and herein referred to as ‘the Pastor’], who had assisted him with completing his Protection visa application form. With the ‘Response to Hearing Invitation’ form, the applicant provided the following supporting documents:
·Letter of Support from [Organisation], dated 8 February 2024;
·Letter of Support from [name] [Employer 3], dated 1 November 2023;
·Letter of Support from the [name] [Employer 4], dated 6 February 2024;
·Letter of Support from the [name] [Sport] Club, dated 12 February 2024;
·Letter of Support from a friend, [Ms A], dated 16 February 2024 (with an attached certified copy of her Victorian Driver Licence);
·Letter of Support from a friend, [Mr B], dated 15 February 2024 (with an attached copy of his Victorian Driver Licence); and
·Letter of Support from landlord, [Mr C], dated 6 February 2024 (with an attached copy of his Victorian Heavy Vehicle Driver Licence).
On 15 February 2024, the applicant appeared before the Tribunal to give evidence and present arguments. An interpreter in the Fijian and English languages assisted the applicant in presenting his evidence.
At the beginning of the hearing, the applicant provided the following supporting documents:
·18 x payslips from Australia, most of which are from [name of business]; and
·Victorian Driver Licence.
Below is a summary of the applicant’s oral evidence during the Tribunal hearing.
Background
The applicant is a married [Age]-year-old Fijian national of indigenous Fijian (iTaukei) ethnicity and Christian (Methodist) faith. He was born and raised in [Town 1], [Province 1], [Division 1], Fiji.
The applicant’s wife is [an occupation 1] and resides in rented accommodation in [Town 1] with their son. The applicant’s son is around [Age] years old. The applicant maintains regular contact with his wife, speaking to her every day. Before his marriage in around [Year], the applicant had a relationship with another woman, and they had a daughter together. However, they separated before the birth of their daughter because his ex-partner lived in a remote area of Fiji. As a result, the applicant has never met his daughter, and has no contact with her or her mother.
The applicant’s father is a subsistence farmer who resides in the small town of [Town 2], [Province 1]. The applicant’s mother died from natural causes in around [Year]. The applicant has [brothers], who are all married with children and work as subsistence farmers near the applicant’s father. The applicant maintains regular contact with his father and brothers.
The applicant studied at high school in [Town 3], [Province 1], and graduated in around [Year]. From 2005 to 2017, the applicant worked as a Fijian [occupation 1] in [Town 1], [Province 1]. In 2017, the applicant studied at the [University] in [Town 1], where he completed a [Certificate]. In 2019, the applicant worked as [an occupation 3] at a [workplace 3] in [Location] for around 9 months, finishing his employment in around October 2019. The applicant then worked for around 3 to 4 weeks [doing a job task] for [Employer 2] in [Province 1].
Travel to Australia and return to Fiji
In September 2019, the applicant left Fiji and travelled to Australia on a Visitor visa (subclass 600). The applicant travelled to Australia at this time because he wanted to visit a friend.
In November 2019, the applicant left Australia and returned to Fiji. He returned to Fiji at this time because his Visitor visa was only valid for 3 months. Upon his return to Fiji, the applicant resided with his wife and son in [Town 1]. He did not experience any problems during his return trip to Fiji. During this period of time, the applicant cared for his son while his wife worked as [an occupation 1]. He also visited his family village in [Town 2], [Province 1].
In January 2020, the applicant left Fiji and returned to Australia, arriving on a Visitor visa (subclass 600). The applicant travelled to Australia at this time because he wanted to visit a friend and had planned to attend the 2020 Sydney Sevens rugby tournament, held in February 2020.
Life in Australia
The applicant’s friend introduced him to the Pastor, who offered to assist the applicant with remaining in Australia by applying for a Protection visa. The Pastor charged the applicant around $3,000 (AUD), but to the applicant’s knowledge, he was not a lawyer or migration agent.
The applicant is not happy with the services offered by the Pastor for three reasons. First, there was a lack of communication. Second, the Pastor put things in the applicant’s Protection visa application form that were made up and not true. Third, while it is correct that the applicant was [an occupation 1] in Fiji, the other claims in the Protection visa application form were ‘confusing and different’ from what he told the Pastor. Before he signed the Protection visa application form, the Pastor did not explain it to him and did not ask him any questions about why he left Fiji or what happened to him there. He only asked the applicant if he was [an occupation 1], which the applicant answered in the affirmative.
After lodging his application for a Protection visa, the applicant worked on several [workplace 4s] in regional Victoria doing odd jobs. He has also worked at [Employer 4] and at [a workplace 5] as [an occupation 4]. He currently works as [an occupation 3]. Through this work experience in Australia, the applicant has been financially supporting his father, [brothers], wife, and son.
Work as [an occupation 1] in Fiji
As noted above, from 2005 to 2017, the applicant worked as a Fijian [occupation 1] in [Town 1], [Province 1]. The applicant primarily worked on [occupation 1 tasks]. At the beginning of his career, he held the [job level], and when he finished working as [an occupation 1] in 2017, he held the [level] of [specialised job level].
In 2017, the applicant had an argument with his wife and lightly slapped her on the face. She reported him to the police, and the matter went to court. By the time of the hearing at the Magistrates Court, the applicant and his wife had reconciled. The charges were subsequently dropped, due to a lack of evidence.
Concurrently, [Employer 1] conducted an internal investigation into the applicant’s behaviour, which was heard before an [internal function]. The [function] officer in that case wrote a report to [Employer 1 authority] stating that the applicant had admitted he was guilty of family violence. This was incorrect, as the applicant never admitted guilt to the [function]. As a result, [Employer 1 authority] unfairly dismissed him from his role as [an occupation 1].
After discussing his termination with his wife, the applicant decided not to appeal the decision or lodge a formal complaint because even though he was disappointed with the decision and felt it was unfair, he'd ‘had enough’ of being in [Employer 1].
[Investigation] into [Incident 1]
The applicant was never involved in internal investigations into the conduct of fellow [occupation 1s]. The applicant was never involved in investigating [events like Incident 1]. The applicant was never involved in investigating [Incident 1]. The applicant was never assaulted or verbally abused by fellow [occupation 1s or 2s] for any of his investigations. The applicant never received death threats from fellow [occupation 1s or 2s]. The applicant was never taken to [Workplace 1] and threatened by [occupation 2s]. The applicant did not have any emotional scars as the result of any mistreatment by [occupation 1s or 2s]. The applicant did not relocate and move to other [workplace 2s] where the harassment and intimidation continued. The applicant never received threatening telephone calls while working at a [workplace 3] in [Location].
In explaining the above, the applicant stated that he does not know where these claims came from, and assumed that the Pastor made them up, and ‘falsified information.’ When asked to confirm that he is now abandoning those claims, the applicant confirmed that it was correct because it is all ‘false information.’
The applicant stated that it is true that [Incident 1 happened]. However, the applicant stated that he was never involved in any investigation into the [incident] or [occupation 1 or 2] misconduct. He stated that one of his cousins was one of the perpetrators. His cousin was [an occupation 1] at the [Town 2 Workplace 2], where [the incident happened]. His cousin, as well as [other people] were convicted and imprisoned, but shortly after released. The applicant could not recall his cousin’s name, only knowing his first name. The applicant clarified he is not his cousin per se, but a very distant relative from a town close to the applicant’s family. He stated in Fijian culture, they refer to such persons as ‘cousins.’ The applicant never experienced any problems in Fiji on account of his ‘cousin’s’ involvement in [Incident 1].
However, the [Incident 1] did have an impact on [Employer 1] generally. As the result of his death, the public lost trust and confidence in [Employer 1], which made it difficult for them to do their jobs properly, especially in the [Town 1] area.
The applicant feels a sense of injustice that his ‘cousin’ was convicted of [offence] and imprisoned, yet was able to remain [an occupation 1], while the applicant was unfairly dismissed from [Employer 1] for family violence, when he had reconciled with his wife and was not convicted because of a lack of evidence. The applicant does not know why the [function] officer made the false statement to the [Employer 1 authority], as there was no personal animosity between them and there was no reason for him to make such a false statement. However, around that time, [Employer 1] was corrupted by [Former Prime Minister] Bainimarama and his appointment of a ‘military man’ to be [Employer 1 authority].
Political opinion
The applicant did not vote in the 2022 General Election but voted for [now Prime Minister] Sitiveni Rabuka in the previous General Election. The applicant was never active in politics in Fiji and was never a member of any political party. Since his arrival in Australia, the applicant has not been engaged in Fijian politics. However, he does follow the news and has read about the economic hardship Fijians are experiencing, and how many are leaving the country for work abroad.
Fears of harm

If he returns to Fiji, the applicant stated that he will choose to reside in [Town 1] to be with his wife and son. While he stated that he will be able to find work and his past work experience and training in Australia will help him to secure employment, it will take him time to settle-in to life and his community after several years abroad. His iTaukei ethnicity may make it more difficult for him to find employment, particularly if a prospective employer is non-indigenous. However, in most places, including in [Town 1] and Suva, there are good relationships between ethnic groups in Fiji, but in other places the situation is not as good.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant faces a real chance of serious harm on return to Fiji, and if not, whether he faces a real risk of significant harm. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Nationality
The applicant provided his Fijian passport in support of his application for a Protection visa. The applicant has consistently stated that he is a Fijian citizen and does not hold citizenship of any other country. Given this supporting documentation, the Tribunal accepts that the applicant is a citizen of Fiji. The Tribunal has assessed the applicant’s claims against Fiji as his country of nationality and the receiving country.
Third country protection
According to s 36(3) of the Act, Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail themselves of a right to enter and reside in a third country. There is no evidence to suggest that the applicant has any right to enter and reside in any other country, and the Tribunal finds that s 36(3) does not apply in the circumstances of this case.
Abandoned claims
As indicated above, during the hearing, the applicant abandoned several claims originally raised in his Protection visa application, stating that they were ‘falsified’ by the Pastor. The Tribunal referred to each claim individually and asked for his comment.
The Tribunal informed the applicant that in his Protection visa application, it states that in [2007], [Incident 1 happened]. As a Junior [employee] at the time, the applicant was assigned to investigation team into the [incident]. The Tribunal asked if he had any comment to that information. The applicant responded that he has nothing to say because he was not involved in that investigation. He said that he does not know where this information came from and assumes that the Pastor ‘falsified information.’
The Tribunal informed the applicant that in his Protection visa application, it states that as a result of his investigation, [occupations 1s and 2s] would assault and verbally abuse him, while accusing him of being a liar. It states that the applicant also received death threats and on one occasion, he was taken to [Workplace 1] and threatened by [occupation 2s]. The Tribunal asked if he had any comment to that information. He responded that he does not have any comment other than that he did not say any of that information to the Pastor.
The Tribunal informed the applicant that in his Protection visa application, it states that due to these experiences at the hands of the [occupations 1s and 2s], the applicant was left with emotional scars, which he will have to learn to live with for the rest of his life. The Tribunal asked if he had any comment to that information. The applicant responded in the negative.
The Tribunal informed the applicant that in his Protection visa application, it states that he moved around to different [workplace 2s], but wherever he went, the abuse and intimidation from the [occupations 1s and 2s] continued. The Tribunal asked if he had any comment to that information. The applicant responded in the negative.
The Tribunal informed the applicant that in his Protection visa application, it states that he did not have anyone to complain to or protect him. It states that due to the treatment he received, his wife encouraged him to resign from [Employer 1], which he did. It also states that he then worked at the [workplace 3] in [Location], where he continued to receive threatening phone calls. The Tribunal asked if he had any comment to that information. The applicant responded in the negative.
The Tribunal informed the applicant that in his Protection visa application, it states that [Former Prime Minister] Frank Bainimarama was a dictator and the situation in Fiji became worse after his election. Following his election, the applicant spoke out and wanted to quit. The Tribunal asked if he had any comment to that information. The applicant responded in the negative.
The Tribunal informed the applicant that in his Protection visa application, it states that if he returns to Fiji, the applicant fears that he would be arrested and tortured by the military and police. He fears that he will be killed and would be too fearful to walk on the street. The Police will do anything to stop people like the applicant from voicing their opinions. The Tribunal asked if he had any comment to that information. The applicant responded in the negative.
The Tribunal then clarified whether the applicant’s responses in the negative were an indication that the information was false, as in not true, and made up by the Pastor, or whether there was another reason for his no comment. The applicant responded, ‘the reason I am saying no is because it is all false information.’
The Tribunal informed the applicant that based on his evidence during the hearing that all this information and these claims were not true and made up the Pastor, who took advantage of him, the Tribunal will not accept those claims. The Tribunal then went through each claim individually and explained to the applicant that it will not accept that:
·he was tasked with investigating [Incident 1];
·the [occupation 1s or 2s] that were responsible for [Incident 1] retaliated against him;
·the [occupation 2s and 1s] assaulted or verbally abused him, that he received death threats, or that [occupation 2s] took him to the [Workplace 1] and threatened him;
·this treatment from the police and soldiers resulted in mental health issues for the applicant and left him with emotional scars;
·when he moved to different [workplace 1s] the abuse continued;
·the applicant left [Employer 1] due to the treatment and harassment he received as a result of his investigation into [Incident 1];
·he received threatening phone calls while working at the [Workplace 3] in [Location];
·the former Prime Minister Bainimarama was a dictator and the applicant spoke out against him and wanted to quit [Employer 1] for that reason; and
·the applicant fears that he would be arrested or tortured by the police, that he fears he would be killed, or that he fears that the police would not protect him.
The Tribunal asked the applicant if he had any comments or concerns about this. He responded in the negative. For the reasons stated above, the Tribunal does not accept the claims listed above. The Tribunal finds that the applicant was taken advantage of by a member of the Fijian community he trusted, and who falsely presented himself as a migration agent or someone with expertise in preparing Protection visa applications. As the Tribunal does not accept these claims and accepts the applicant’s statements that these claims were falsified by the Pastor, the Tribunal will not consider them further.
At the conclusion of the hearing, the Tribunal summarised the applicant’s claims to confirm that it understood them properly, given that he had abandoned almost all the claims listed in his Protection visa application form. The Tribunal stated that it understood that the applicant last left Fiji in 2020 to travel to Australia to visit a friend, and then he was introduced to the Pastor, who encouraged to apply for a Protection visa. He is unable to return to Fiji now because he has been financially supporting his family members while in Australia, and it would be difficult to do that, if he returns to Fiji. He fears that he would face economic hardship in Fiji and that it would be hard to find a job as [an occupation 3], particularly because of his past experience in [Employer 1]. His iTaukei ethnicity may make it difficult for him to find employment but there are relatively good relationships between different ethnic groups, and he would probably be able to get a job, and that his training in Australia would help him secure employment.
The Tribunal asked the applicant if that was a fair summary of his claims during the hearing. The applicant answered in the affirmative. The Tribunal asked if there were any other reasons why he cannot return to Fiji. The applicant responded, ‘that is all that I have mentioned.’
Proposed witness not called
As indicated above, prior to the hearing, the applicant requested the Tribunal take oral evidence during the hearing from the Pastor, who was his authorised recipient. At the outset of the hearing, the Tribunal discussed this proposal with the applicant, and enquired why he has proposed for the Tribunal to call the Pastor as a witness, and what evidence he would give about the applicant’s claims.
The applicant responded that the Pastor: informed him of the hearing date, explained the contents of his Protection visa application form, and suggested he be listed as a witness in the ‘Response to Hearing Invitation.’ The applicant did not know why the Pastor suggested this or what evidence the Pastor would give, but he followed the advice of the Pastor because ‘I thought he was doing the right thing.’ Following clarification by the Tribunal, the applicant responded, ‘the reason why I wrote it [listing the Pastor as a witness] down was because he told me to.’
As highlighted above, during the hearing, the applicant had explained that he was not satisfied by the services provided by the Pastor because he ‘falsified information’, did not communicate with the applicant, and charged the applicant a high amount for the Protection visa application. Given these circumstances above, the Tribunal informed the applicant that it did not consider it appropriate to call the Pastor as a witness. The Tribunal asked the applicant if he had any concerns, to which he responded, ‘yes, I agree with you Member. I do not think you should contact him. I am disappointed in being caught in false information, which he provided. The big reason of attending today is to tell you the whole truth.’
For the above reasons, the Tribunal did not call the Pastor as a witness. Towards the conclusion of the hearing, the applicant informed the Tribunal that he would like all correspondence from the Tribunal to go directly to him, rather than his authorised recipient because ‘he [the Pastor] did not do the right thing by me.’ Following the hearing, on 20 March 2024, the applicant sent the Tribunal a ‘Change of Contact Details’ form, in which he filled the section under the heading ‘cancellation of authorised recipient’ by ticking the box with the following text, ‘I withdraw my previous authorisation of a person to receive correspondence on my behalf. I now wish all correspondence to be sent to me.’
Character references
The applicant provided several letters of support from community members of the area he resides, in regional Victoria. These letters speak to the applicant’s character as a person of good standing, such as how he has integrated in the local community, and how he is a well-respected, active, and valued community member. While the Tribunal has considered these letters of support, and accepts the evidence contained in them, the Tribunal gives the letters of support no weight, as they are references about the applicant’s character in Australia, rather than evidence of his past experiences in Fiji or his risk of harm if he returns to Fiji. The Tribunal assesses that these letters are not relevant in the consideration of whether there is a real chance or real risk the applicant will be seriously harmed or significantly harmed now or in the reasonably foreseeable future, if he returns to Fiji.
At the conclusion of the hearing, the applicant enquired whether the Tribunal requires any other letters of support about his character and good standing in the community in regional Victoria, such as a letter from his church community. The Tribunal responded that he has already provided six letters of support that speak of his good character, and that the Tribunal does not require any further information in this regard. The Tribunal informed the applicant that it accepts that he is a well-regarded person in regional Victoria and that he is a very active member of the local community.
Role as [an occupation 1]
Even though the applicant’s description of his role and functions as [an occupation 1] was markedly different between his Protection visa application compared with his claims during the hearing, the Tribunal does not make any adverse credibility findings in this regard. The applicant presented as an honest witness, who provided candid responses of how he was taken advantage of by the Pastor, as described above.
The applicant provided a sufficiently detailed account of his role and functions as [an occupation 1] during the hearing, including the [levels] he held, the types of investigations he was assigned to, his frustrations with [Employer 1], and how he was unfairly dismissed. Many of the applicant’s responses were spontaneous, and he presented generally as a truthful and forthright witness. For these reasons, the Tribunal accepts the applicant’s claims he worked as [an occupation 1] from 2005 to 2017 and accepts his claims about his role and functions. For the same reasons, the Tribunal accepts the applicant’s claims that he was unfairly dismissed after an Internal [function] officer wrongly informed the [Employer 1 authority] that he admitted to slapping his wife.
The Tribunal notes, however, that the applicant has not claimed to have faced any further repercussions in this regard, such as being charged or convicted, or facing any problems from the [Employer 1 authority] or the [internal function] officer, or anyone else, nor did he express any subjective fear of harm in this regard.
Other claims related to biographical information
The applicant provided consistent and sufficiently detailed evidence during the hearing about his marital status, family composition, ethnicity, faith, and home area. There is no reason to doubt the applicant’s claims in this regard.
For these reasons, the Tribunal accepts that the applicant is a married [Age]-year-old Fijian national of indigenous Fijian (iTaukei) ethnicity and Christian ([Specific]) faith, who was born and raised in [Town 1], [Province 1], [Division 1], Fiji. The Tribunal accepts that his wife is [an occupation 1], they have a [Age]-year-old son, and that they both reside in [Town 1]. The Tribunal accepts the applicant’s father, and [brothers], work as subsistence farmers in the small town of [Town 2], [Province 1], and that he maintains regular contact with them.
Summary of findings of fact
In summary, for the reasons above, the Tribunal accepts that the applicant:
·is a [Age]-year-old Fijian national of indigenous Fijian (iTaukei) ethnicity and Christian (Methodist) faith, who was born and raised in [Town 1], [Province 1], [Division 1];
·has a wife, who is [an occupation 1], and a [Age]-year-old son, who both reside in [Town 1];
·has family members (father and [brothers]), who work as subsistence farmers in the small town of [Town 2], [Province 1], and that he maintains regular contact with them;
·worked as [an occupation 1] in [Town 1], [Province 1] from 2005 to 2017;
·primarily worked on [job tasks];
·was unfairly dismissed by the [Employer 1 authority] following an unfounded statement from [an internal function] officer that the applicant admitted slapping his wife;
·did not appeal the unfair dismissal or lodge a complaint because he’d ‘had enough’ of being in [Employer 1];
·worked at a [workplace 3] and for [Employer 2] in [Province 1], following his dismissal from [Employer 1], where he did not experience any problems;
·first travelled to Australia in September 2019, before returning to Fiji in November 2019, and travelled back to Australia in January 2020;
·never experienced any problems in Fiji, during his return trip from November 2019 to January 2020;
·was taken advantage of by the Pastor, who is a member of the Fijian community in Australia, and who made false statements in the applicant’s Protection visa application form about the applicant being involved in an internal [occupation 1] investigation about [Incident 1]; and
·is a well-respected, active, and valued community member in the area he resides, in regional Victoria.
In summary, for the reasons above, the Tribunal does not accept:
·he was tasked with investigating [Incident 1];
·the [occupation 1 or 2s] that were responsible for [Incident 1] retaliated against him;
·the [occupation 2s and 1] assaulted or verbally abused him, that he received death threats, or that soldiers took him to [Workplace 1] and threatened him;
·this treatment from the [occupation 1 and 2s] resulted in mental health issues for the applicant and left him with emotional scars;
·when he moved to different [workplace 2s] the abuse continued;
·the applicant left [Employer 1] due to the treatment and harassment he received as a result of his investigation into [Incident 1];
·he received threatening phone calls while working at a [workplace 3] in [Location];
·the former Prime Minister Bainimarama was a dictator and the applicant spoke out against him and wanted to quit [Employer 1] for that reason; and
·the applicant fears that he would be arrested or tortured by the police, that he fears he would be killed, or that he fears that the police would not protect him.
Given these findings of fact, the Tribunal considers the applicant’s profile is that of a:
·[Age]-year-old;
·Fijian national;
·of indigenous Fijian (iTaukei) ethnicity;
·and Christian (Methodist) faith;
·who was born and raised in [Town 1];
·and has prior work experience in Fiji (as [an occupation 1], [occupation 3] at a [workplace 3], and [occupation 4] for [Employer 2] in [Province 1]);
·and has prior work experience in Australia (on various [workplace 4s], at [a workplace 5], and at a [workplace 6]); and
·who will reside in [Town 1], if he returns to Fiji.
Economic hardship
The applicant claimed that he has read on the news that many Fijians are leaving the country for work abroad. The applicant’s claims in this regard are consistent with a 2023 report from the International Monetary Fund (IMF), which stated, ‘overseas emigration has limited the supply of workers, especially in skilled jobs, which could become a headwind to future growth.’[1]
[1] International Monetary Fund, Republic of Fiji: 2023 Article IV Consultation-Press Release; and Staff Report, 28 June 2023, at [15], available at:
The United Nations Development Programme (UNDP) places Fiji in the ‘High human development category’ and ranks its Human Development Index (HDI) value as 0.729, meaning it is positioned at 104 out of 193 countries and territories.[2]
[2] UNDP, Human Development Reports: Fiji, 13 March 2024, available at:
According to DFAT, ‘Fiji is one of the largest economies in the Pacific region, but about a quarter of the size of the next largest, Papua New Guinea. Its per capita gross domestic product (GDP) is much higher than most Pacific neighbours.’[3] According to The World Bank, ‘Fiji led the Pacific’s post-COVID-19 recovery with open borders and a strong rebound in 2022 and is now on track to reach its pre-pandemic output level in 2023... tourism arrivals in June 2023 surpassed the June 2019 arrivals. As a result, Fiji is expected to continue leading the Pacific’s recovery with strong growth.’[4] Similarly, the IMF stated in 2023 that, ‘tourism rebound will support momentum in the economy, with real GDP projected to grow by 7.5 percent in 2023 and 3.9 percent in 2024.’[5]
[3] DFAT, Country Information Report: Fiji, 20 May 2022, at [2.7].
[4] The World Bank, Pacific Economic Update, 6 August 2023, at [1.2] and [1.2.1], available at:
[5] International Monetary Fund, Republic of Fiji: 2023 Article IV Consultation-Press Release; and Staff Report, 28 June 2023, at [6], available at:

Most Fijians work in the informal sector, but the official unemployment rate continues to decline. In 2023, the overall unemployment rate was 4.2 per cent (down from a peak of 4.8 per cent in 2021).[6] According to a DFAT report from May 2022, ‘[t]he minimum wage is currently FJD 2.68 (about AUD1.75) per hour.’[7] The US Department of State noted in March 2023, ‘…the minimum wage did not typically provide a decent standard of living for a worker and family.’[8] However, since both of these reports were published, the minimum wage was increased in four tranches over a one year period, and effective as of 1 January 2023, the minimum wage now stands at $4.00 (FJD) per hour[9], with a further possible increase in 2024.[10] The Fiji Trades Union Congress has called for a rise in the minimum wage to $6.00 or $7.00 per hour.[11]
[6] The World Bank, Unemployment, total (% of total labor force) (modeled ILO estimate) – Fiji, 6 February 2024, available at:
[7] DFAT, Country Information Report: Fiji, 20 May 2022, at [2.19].
[8] US Department of State, 2022 Country Reports on Human Rights Practices: Fiji, 20 March 2023, available at:
[9] Fiji Live, $4 minimum rate comes into effect on 1 Jan, 26 December 2022, available at: Fijian Government, We will increase the minimum wage to $4.00 an hour.., Facebook, 24 March 2022, available at: and FBC News, Expect minimum wage update in budget announcement, 10 April 2024, available at:
[10] FBC News, PM optimistic about 2024, minimum wage rate review soon, 2 January 2024, available at:
[11] Fiji Village, FTUC calls on Govt to review national minimum wage, 23 September 2023, available at:
Despite some positive signs in terms of economic growth in Fiji, the Tribunal accepts, based on the country information above, the applicant may experience some economic hardship if he were to return to Fiji, particularly during the initial phase of settling back into his country and community.
According to s 5J(4)(b) of the Act, persecution must involve ‘serious harm’ to the person. Section 5J(5) of the Act sets out a non-exhaustive list of the type and level of harm that will amount to ‘serious harm’, listing the following:
(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.’
The Tribunal does not accept that any economic hardship he may experience during an initial phase of re-establishing himself in Fiji will rise to the level of serious harm, in his particular circumstances, for the following reasons.
While in Fiji, the applicant maintained active employment in the formal sector, working as [occupation 1] for some 13 years, as [occupation 3] at a [workplace 3], and [occupation 4] for [Employer 2] in [Province 1]. Even though the applicant claimed that if he returns to Fiji now, it may be difficult for him to get a job if prospective employers know that he was a former [occupation 1], the applicant successfully applied for two jobs after he left [Employer 1], and there is no information before the Tribunal to indicate that he could not do so again in future. While the applicant claimed that his iTaukei ethnicity may make finding a job more difficult, particularly if the prospective employer is non-indigenous, there are no indications that the applicant ever experienced workplace discrimination on account of his ethnicity or that any past job seeking in Fiji was made more difficult for reasons of his ethnicity, or for any other reason related to a ‘refugee nexus’ reason as per s 5J(1)(a) of the Act.
Further, in Australia, the applicant has maintained regular employment on various [workplace 4s], at [a workplace 5], and at a [workplace 6]. The Tribunal finds that this consistent and varied work experience in Australia will improve his job prospects in Fiji. The Tribunal accepts he has been able to financially support his family by working in Australia, and that he would be able to provide more for his family by working in Australia, compared with working in Fiji. The Tribunal notes that the applicant’s wife has worked as [an occupation 1] for many years. During the applicant’s initial phase of settling back into his country and community, his wife may have to initially provide more financial support to the family, than she normally otherwise would.
During the hearing, the Tribunal informed the applicant that it must consider whether the economic hardship he fears amounts to serious harm. The Tribunal informed the applicant that it may find that it does not amount to serious harm, as it would not threaten his capacity to subsist in Fiji, for example. The Tribunal informed the applicant that it may find that he would be able to find employment, based on his long work history in Fiji, including as [occupation 1], [occupation 3], and [occupation 4]. The Tribunal informed the applicant that it may also find that he has able to [do a job task] in Australia and further develop skills as [an occupation 3], while at the same time having varied work experience in Australia, which would place him in a good position to find employment in Fiji. The Tribunal asked the applicant if he would like to comment on that information, to which he responded in the negative.
The Tribunal has considered the applicant’s response. However, the Tribunal does not accept, in the applicant’s particular circumstances, that he will be (or has been in the past) denied basic services or the capacity to earn a living of any kind or suffered economic hardship such as would threaten his capacity to subsist. While it is acknowledged that the list of ‘serious harms’ in s 5J(5) of the Act are non-exhaustive, the Tribunal does not accept there to be a real chance that the applicant will be subjected to ‘serious harm’ for the purposes of s 5J(5) of the Act now or in the reasonably foreseeable future for reasons of economic hardship. Therefore, the Tribunal does not accept that he meets the criteria as per s 5J(4)(b) of the Act.
Ethnicity
The applicant has not claimed to have suffered past mistreatment or discrimination for reasons of his iTaukei ethnicity. He has also not expressed a fear of harm in future for reasons of his iTaukei ethnicity. He stated that in most places in [Town 1], the relationships between ethnic groups are good. The applicant stated that if he returns to Fiji, he will return to live in [Town 1], to be with his family. However, the applicant did state his ethnicity may make it more difficult to find employment, particularly if his prospective employer is non-indigenous.
As indicated above, the applicant has a long history of regular work experience in Fiji from 2005 to 2019, before travelling to Australia on the first occasion. There is no information before the Tribunal to indicate the applicant had difficulty in obtaining these positions due to any issues related to his iTaukei ethnicity. The Tribunal could not locate any country information to suggest that non-indigenous Fijians do not employ or limit the employment of iTaukei in Fiji. The Tribunal has considered the treatment of indigenous iTaukei in Fiji, to assess whether there is a real chance of harm on account of his ethnicity, more generally. The most recent DFAT report indicates that there is ‘no official discrimination against indigenous Fijians. Some low-level societal discrimination exists that affects most Fijians as some people among both major ethnic groups perpetuate racist stereotypes against the other.’[12]
[12] DFAT, Country Information Report: Fiji, 20 May 2022, at [3.10].
Based on this country information, as well as the applicant’s own evidence that he never faced any problems on account of his ethnicity in the past, the Tribunal does not accept that there is a real chance that the applicant would be seriously harmed in Fiji for reasons of his ethnicity, and therefore he does not meet the criteria in s 5J of the Act and is not a refugee for the purposes of s 5H of the Act.
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
In considering whether there is a real risk the applicant will suffer significant harm, as a necessary and foreseeable consequence of being removed from Australia to Fiji, the Tribunal has taken into account MIAC v SZQRB, where the Full Federal Court found that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[13]
[13] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
The Tribunal found above that there is not a real chance the applicant would be harmed in Fiji on account of his ethnicity. It follows that the Tribunal finds that there is not a real risk that he would be significantly harmed in Fiji for these reasons.
There is no information before the Tribunal to indicate that the applicant would not be able to find employment in Fiji. Nonetheless, as stated above, despite the somewhat promising signs about economic recovery in Fiji, the Tribunal accepts that the applicant may face some financial hardship if he returns to Fiji, particularly during the initial phase of re-establishing himself in his community and country. However, the Tribunal finds that any economic hardship the applicant might experience if removed to Fiji, including feelings of emotional distress and/or humiliation due to his or his family’s economic circumstances, would not amount to significant harm for the purposes of the Act, because the harm would not be as a result of any deliberate act or omission by any group or person done with the intention of causing him to suffer significant harm. For these reasons the Tribunal does not accept that any economic harm to which the applicant may be subjected, if returned to Fiji, would meet the definition of ‘significant harm’, as that term is exclusively defined in s 36(2A) of the Act.
The Tribunal has considered the applicant’s circumstances and has had regard to the findings of fact outlined above. The Tribunal finds that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Fiji, there is real risk the applicant would face significant harm, as set out in s 36(2A) of the Act, from the Fijian authorities and/or any other organisation, group and/or individual. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and submissions, as well as having considered the personal circumstances of the applicant, the Tribunal is not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Fiji now or in the reasonably foreseeable future.
CONCLUSIONS
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
James Horsley
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 3879

11 April 2024

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