2207655 (Refugee)

This matter concerned an application for review of a delegate's decision to refuse to grant the applicant, a Fijian national of indigenous iTaukei ethnicity, a Protection visa. The applicant arrived in Australia in December 2017 on a Visitor visa and subsequently applied for a Protection visa in March 2021, citing fears of harm from Fijian authorities, including the military and police. These fears stemmed from a wrongful detention in October 2014 on false allegations of inciting violence during the 2014 general election, during which he and his family voted for the SODELPA party. The delegate accepted the detention and voting claims but found the applicant had lived a normal life post-detention and had departed Fiji without issue, concluding he did not face a real chance of serious harm due to his political opinion. The Administrative Appeals Tribunal (the Tribunal) reviewed this decision.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a Protection visa under section 36(2)(a) of the Migration Act 1958 (Cth) (the Act) as a refugee, or under section 36(2)(aa) of the Act for complementary protection. This required the Tribunal to determine if there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Fiji, the applicant would suffer significant harm due to his race, political opinion, or membership of a particular social group. The Tribunal also considered the applicant's claims regarding potential harm if the 'Police Bill' passed, which he believed would turn Fiji into a police state where indigenous Fijians would not be spared.

The Tribunal considered the applicant's evidence, including his detention in 2014 and his political leanings. It noted that the delegate had accepted the factual basis of the detention and the applicant's voting history. However, the Tribunal found that the delegate erred in concluding that the applicant's subsequent ability to live a normal life and depart Fiji without issue negated a real risk of harm. The Tribunal reasoned that the political climate in Fiji had evolved since 2014, and the applicant's past detention and his indigenous iTaukei ethnicity, coupled with concerns about the 'Police Bill', could place him at risk. The Tribunal also considered the applicant's ties to Australia through his two Australian citizen children.

The Tribunal set aside the delegate's decision and remitted the application to the delegate for reconsideration according to law, with directions to consider the applicant's claims afresh, including the risk of harm based on his race and political opinion in light of the current country information and the potential impact of the 'Police Bill'.