2209614 (Refugee)

2209614 (Refugee) [2024] AATA 909 (19 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2209614
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Rosa Gagliardi
DATE:19 January 2024
PLACE OF DECISION:  Australian Capital Territory
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 January 2024 at 2:38pm
CATCHWORDS
REFUGEE – Protection Visa – Fiji – political opinion – applicant had supported those in opposition to Bainimarama – was not a member of any particular political party – applicant’s dismissal (and non-reinstatement) from his employment – psychological distress was not targeted, systematic or discriminatory by the State toward the applicant – applicant embellished his claims to enhance his protection application – has never given articulation to any political opinion in a high-profile manner – applicant does not have a well-founded fear of persecution – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 21 June 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Fiji (a matter which the Tribunal accepts) applied for the visa on 25 January 2022.
The delegate refused to grant the visa on the basis that the decision-maker in the first instance was not satisfied that the applicant was a refugee as defined by s.5H of the Act and was therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations as outlined in s.36(2)(a) of that Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Fiji there is a real risk he will suffer significant harm as defined in s.36(2)(aa) of the Act.
The applicant appeared before the Tribunal on 5 January 2024 to give evidence and present arguments. The Tribunal also received oral evidence from his spouse, Ms [A], who has submitted her own protection claims (see Decision: 2209614) based largely on those of the applicant in this case. Senior Pastor, [Church 1], Mr [B], a close family friend also gave evidence.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant has a well-founded fear of persecution for reasons set out in s.5J(1) of the Act, and there is a real chance that if the applicant was returned to Fiji now or in the reasonably foreseeable future, he would be persecuted for one of those reasons and/or whether he would suffer serious harm. In the alternative, the Tribunal is required to consider whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Fiji, there is a real risk that the applicant will suffer significant harm as defined in s.36(2A) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Evidence at the time of application
At question 76 of his application form the applicant was asked why he had left his home country, Fiji. The applicant responded:
Due to the current political climate that current regime is illegal. There are no freedom (sic) and the government of the day are dictatorship. I was one of the many that stood up against the regime and was victimised. There (sic) corruption in the system and there are no true democracy. I cannot return to my country as my life will be threatened as I was one of the people that stood against the undemocratic regime.
In response to question 77 regarding what the applicant thought would happen to him if he returned to Fiji, the applicant wrote, “My life will be threatened and I will be target by the regime”. The applicant also indicated that he had not tried to move to another part of Fiji because, “There no safe place safe to move to as our movement is monitored”.
At question 81 the applicant stated that “yes” he would be harmed or mistreated on return to Fiji. The applicant was asked to give details of the type of harm or mistreatment he feared, and to detail who would be responsible for such harm or mistreatment. The applicant wrote, “I will be harmed emotionally and mentally”.
The applicant also wrote that he did not think that the authorities of Fiji would protect him because they were all the same as the system – corrupt. He did not think it would be wise to relocate as he would still be targeted.
The Tribunal hearing
The applicant told the Tribunal he came to Australia on on a Visitor visa with his spouse. They came to visit their son and his family in Australia. The Tribunal asked whether there was any other reason they came to Australia, and he responded, “No”. He was in Australia during COVID-19, and they had been prevented from returning to Fiji, even though now it was possible to return.
In Fiji the applicant stated that he was a [Occupation 1], and he was also working for [Employer 1] as an [Occupation 2]. The applicant stated there would be no work for him on return to Fiji because he was no longer young. He was [age] years of age. The applicant stated that you cannot work in Fiji after 55, which is the pension age. The applicant claimed that he had no savings.
The Tribunal asked what the reason was for not being able to return to Fiji apart from the issue of being over 55 and not of working age. The applicant responded that it was very difficult to find work. Even if he were below 55 it would be difficult to find a job in Fiji. Supply of workers exceeded demand. The applicant’s wife was [age] years of age.
The Tribunal asked whether the applicant had funds from his Provident Fund. The applicant stated that he had withdrawn the funds held in the Provident Fund as he had been terminated from his job with the [Employer 1] prior to turning 55 years of age. His daughter was in university at the time, but she had to discontinue her studies. The situation affected his family badly. He had had to draw on his Provident fund to support his family. That was why he did not support the previous government.
The applicant stated that he went to court and was promised that if he won the case he would be reinstated and would have any arrears paid to him. However, the new government came to power, and he was not reinstated and was not paid arrears.
The applicant stated the termination of his employment with the [Employer 1] occurred in 2005. He then obtained different jobs, but they were not full-time. He had a small van he took people in, and that was his source of income by that time.
The applicant stated that he had four children. The eldest son was an Australian citizen and was [working][Town 1]. The other three were all in Fiji. Two of the children worked in [an] industry and the child who he had had to pull out of university was now working with [an employer]. His wife was working previously in [an] industry for 31 years. His wife had access to her Provident Fund, but that was all gone now. In any event, it was not a large amount.
The Tribunal turned to the applicant’s original application and the Tribunal asked the applicant whether there was anything that he continued to fear. The applicant stated, yes, even the government now is the same one that initiated the coup in 1987. He (Rabuka) was leading the country. One time he heard him say, “I live by the sword, and I will die by the sword”. The applicant stated that many people in the government were military people. The Tribunal noted that the elections of December 2022 had been fair and transparent. People had more confidence in the direction of the country, although the Tribunal acknowledged there continued to be human rights abuses in Fiji. The applicant stated that he was born in Fiji and had lived there, and a picture could be painted for people to see, but the real picture was hidden from view. This was so that tourism would flourish in Fiji and to attract income into the country. He was not sure that things were as good as they seemed. Anything could happen at any time. He stated that he lived happily with his wife in Australia. He would prefer to stay here rather than return to Fiji.
The Tribunal asked why precisely the applicant’s contract with [Employer 1] had been terminated. The applicant stated he was an [Occupation 2] and one day he [had a car accident which involved a collision with a truck]. The applicant stated that it was made to look like he was at fault. It was a case of who you knew in Fiji as it turned out the truck driver knew people and he went to court to bribe the officials or whatever he did, and the applicant was told that he was in the wrong. The applicant pursued the matter through the court and won and the man who had caused the accident ran away to [overseas].
Consequently, the applicant returned to the [Employer 1] and told them he had been judicially successful, and they told him that now the government had changed, and they would not reinstate him to his previous employ. The applicant stated he had to return home and look for a job to put food on his family’s table. The applicant had to travel an hour each way to attend the court case. He calculated the fuel he had used, and they were supposed to reimburse him but to this day they had not given him a cent.
The applicant stated that he owned his home in Fiji but the houses there were not like those in Australia. When asked he responded that he no longer owned the van he used to drive people in for an income.
The Tribunal referred to the contents of the applicant’s application and put the information to him pursuant to s.424A. The Tribunal explained that the information was relevant because what he had written was quite different from what he had told the Tribunal at hearing. The Tribunal further explained that if the Tribunal relied on the information, it would find that the applicant had provided two inconsistent accounts about why he could not return to Fiji and the Tribunal may not accept any of the applicant’s claims as a result. The Tribunal noted that the applicant had written that he feared for his life because he had stood up to the regime.
The applicant stated that the Tribunal had not asked him about the matters in the application and that is why he had not mentioned them. The applicant availed himself of a break before responding in a more fulsome way to the information put to him.
When the applicant returned to the hearing the Tribunal asked whether he wanted to explain the claims he had put in his application. The applicant stated that the information he gave to the Tribunal coalesced with the information he had put in his application. The applicant stated that if he returned to Fiji, he held fears because the leader of the country had carried out a previous coup and many in government, as well as in the opposition, were in the military and he thought that anything could happen if they returned to Fiji. It was not just him and his wife who thought this.
The Tribunal asked whether the applicant supported any political party and he said he had supported those in opposition to Bainimarama and that is why they were so hated - because they did not vote for Bainimarama. The Tribunal asked whether the applicant belonged to any particular political party. He said he was just a voter but in the most recent election he was in Australia and had not even voted. The applicant confirmed he was not a member of any particular political party and had never been affiliated with any such party.
The Tribunal asked the applicant to explain what he meant by his statement in his application that he had stood up to the previous regime. The applicant responded he did not like what they were doing to people. The Tribunal asked what in particular he did not like. The applicant responded that if you spoke about the government the army would come and get you and torture you. They would put you to work like a frog. That was what Bainimarama’s government did. The Tribunal noted, however, that the country information reflected that things in Fiji were somewhat freer now after the change in regime in December 2022. The applicant stated that things were freer now but while there was this appearance, anything could happen any day. The applicant confirmed that he was not a complete supporter of the current government either.
The Tribunal asked the applicant to explain what he had meant in his application that he feared for his life as he was one of the people who had stood up to the undemocratic regime. The applicant responded that he hated what they were doing. The Tribunal asked the applicant whether his life would really be threatened because of how Fijian society was run and the applicant stated, yes, he would be. The Tribunal asked by who. The applicant replied that there were people in that government who could catch you in the village or town because it was a small country. The Tribunal asked whether the applicant lived in a village or town. He stated that he was now living in a large island in his own place. It was more a settlement rather than a village.
The Tribunal asked whether anything adverse had happened to him after he lost his job. The applicant stated that he tried to get another job. When he went to the [Employer 1] to get his job back as he had won his court case, some of them asked him which party he had voted for. When he did not say Bainimarama’s party, this might have contributed to him not getting his job back as an [Occupation 2].
The applicant stated that for his health it was better to live in Australia and he had been told that a cold climate would be better for his lungs. In Australia he also had a full-time job which he really enjoyed. He worked in a [workplace] to support himself and his wife.
The Tribunal noted that it could not give the applicant immigration advice about achieving a migration pathway, but in the event the Tribunal made an unfavourable decision he ought to investigate his options.
The applicant stated that they had really good relationships with the community and the Church and played a role in assisting look after people in the Fijian community.
The applicant’s spouse – [Ms A’s] evidence
The Tribunal asked [Ms A] why she could not return to Fiji. She responded that the reason was mainly their health. The Tribunal asked her to set out her health problems. She stated that she did not have specific problems with her health, but it was her age. She now had a job as a [occupation] part-time and she loved it. She exercised her body.
The Tribunal asked [Ms A] whether she feared anything on return to Fiji and she responded that what has already happened could happen again, such as during the coup. The Tribunal asked which coup had affected her and she responded the 1987 coup. It affected her family and children who were in high school. She was working in the tourism industry. The value of the currency was low.
The Tribunal noted that despite the coup she and her husband had continued to work in reasonably good jobs. [Ms A] stated that they did not have work during the coup. She had to stay home for about 3 months because there were no tourists in Fiji.
The Tribunal asked [Ms A] to identify anything else she feared on return to Fiji. She explained that the government was now led by someone who had conducted a coup in 1987 and all the Ministers were from the army. She thought that a coup could happen at any time creating economic and other instability. [Ms A] stated that it was better for them to stay in Australia rather than go back to Fiji.
The Tribunal referred to [Ms A]’s application which largely mirrored that of the applicant. The Tribunal noted that the applicant had written in his application, as did she, that she feared for her life and that they were victimised and threatened for having stood up to the previous regime, and asked her to explain what she meant by that. She stated that because of their age, if another coup happened, they would be vulnerable. They were not working, and they could not rely on their children because they had their own families. They had exhausted the funds in their Provident Funds. She stated that her son in Australia had three children to look after and would not be able to support her and her husband.
Witness – Mr [B] – Senior Pastor of [Church 1]

Mr [B] stated that in relation to the protection application, according to his knowledge he believed it would be good health-wise for the applicants to live in Australia. When one saw the hospitals in Fiji from the outside you knew there was no hope inside. There was a lack of medical and other facilities. There were so many institutions that were required to look after people, but the standard in Fiji was not as high as in Australia. Mr [B] stated that being in their [age] meant it would be better to live in this country.
Mr [B] spoke highly of the contribution the applicant and his wife were making to the community in [Town 1], NSW, spiritually and in other ways. They were coordinating fellowship together with other Christian denominations. They had been effective in assisting the community, especially Fijians who had come to work as aged care workers. They were leaders in their area.
The Tribunal noted that these matters seemed to fall outside the scope of the refugee requirements and that should the refugee claims fail, the applicants should legal advice about their options to remain in Australia.
Mr [B] added that the applicant had had an accident, and even though he won the case they did not pay him. If the applicant had been a member of the government, he would have been paid. There had been several coups between 1987 and 2006 and even now a military government was in power. The elections were just a mask. The military was watching the government. The father of the 1987 coup was in power, and former coup leaders were also in power.
Mr [B] stated that starting with the coup in 1987, it was ingrained in people’s psyche that the future was unstable, and another could happen at any time. Democracy could not be guaranteed even for a year. Both sides had military power. There was always a military mindset in governments. The future of Fijian citizens had been unstable since 1987.
Mr [B] stated that he had lived through these coups and psychologically this affected people; it rolled in their minds every time they saw the military. For example, MPs who are sick fly to Australia because they know the facilities in Fiji are sub-standard. In Fiji there was no superannuation (a minor amount) because they used it to pay for children’s fees. Inflation was also high. Wages did not cover the cost of living. It was a struggle day to day.
Material submitted to the Tribunal
Several letters of support from the [Town 1] community have been submitted by:
·[A named individual] stating that she met the applicant in 2022 via a group connecting local [Town 1] churches and that the applicant is nice, honest and dependable and treats Australia with the highest respect. [She] also advances that the applicant is looked up to as a father figure by all members of the Fijian church community and assists with the monthly [Town 1] joint church denomination worship sessions.
·[Mr C], [Town 1] Community Church, stating that the applicant serves with him in areas of ministry. The applicant is described as a kind and caring person who never hesitates to be of assistance to those in need. Mr [C] adds that the applicant has been pivotal in providing support for the many Fijian and Islander football players, timber workers, and seasonal workers who reside in [Town 1 and surrounding areas]; and with his wife [Ms A], has been instrumental in the forming of a Fijian language church in [Town 1]. Moreover, he has proven himself to be a man of integrity and has a desire to serve members of the local community.
·the applicant’s and his wife’s son and wife expressing support for the parents (parents-in-law) to live in the small country town of [Town 1] with their family as they are such an important part of their family structure. They stated they are concerned for their own emotional well-being as well as that of their children should their parents (parents-in-law) not be able to stay in Australia. In addition, the applicant and his wife were respected members in the community.
·Senior Pastor of [Church 1], Mr [B], writes that he supports the applicant and his wife remaining in Australia. The applicant is one of the leaders coordinating their Gospel Outreach in [Town 1] and is respected by the fellowship and the community of [Town 1]. Mr [B] explains that the applicant is also the Elder of the Fijian Community for Counselling and is a spiritual father and an asset to the community.
·Senior Pastor, Mr [B], stating there was a coup culture in Fiji given the events of 1987, 2000, and 2006. The justice system was not independent, they cherry pick who goes to jail. More recently, the Chief Magistrate was still working even though he had been stopped by the police and found to have a high blood alcohol reading. A man had also been brutally attacked by the police, but the government did nothing. Mr [B] states that the health system in Fiji is behind in technology and poses a threat to peoples’ lives. Mr [B] also states that military men were part of the Parliament, including in the opposition. The present commander Jone Kalouniwai is deeply involved in the running of the government and the military have the power to take over the government at any time. Mr [B] also refers to the corruption engendered by the Bainimarama government. Mr [B] asks that given the applicant’s and his wife’s advancing years, they be granted protection as they fear a future coup may occur, so they can have a healthy and enjoyable life in Australia which has the best health services.
·Letter from [a named person], advising he has found the applicant of upright character in all ways and that he would recommend him to any position for which he might apply.
FINDINGS AND REASONS
In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need for and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.
On the other hand, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
Claims at the time of application
The applicant’s claims at the time of application were general and vague and initially were not put forward by him at hearing. Furthermore, at the time of writing the application, the change of government had not occurred and hence those claims are now less relevant as the political landscape has changed:
The Fiji election of 14 December 2022 was the third held under the 2013 Constitution. It resulted in a narrow victory for the opposition parties, which together obtained 29 of the 55 seats. In the Prime Ministerial vote held on Christmas Eve, People’s Alliance Party leader Sitiveni Rabuka was selected as Prime Minister by 28 votes to 27. The election brought to an end 16 years of semi-authoritarian rule by the military-backed government that assumed office in the wake of the December 2006 coup. Bainimarama’s FijiFirst Party had won the 2014 elections with 59% of the popular vote and the 2018 elections, more narrowly, with 50.02% of the nationwide vote. In December 2022, that party secured 42.6% of the vote, which was enough to make it the largest party in parliament with 26 seats, but not enough to form a government. The December 2006 coup leader and 2007-22 Prime Minister Frank (‘Voreqe’) Bainimarama became Leader of the Opposition.[1]
[1] ‘The Fiji December 2022 Election: The Defeat of Bainimarama’s FijiFirst Government’, Prof Jon Fraenkel, March 2023, Periscope, Konrad Adenauer Stiftung, Regional Programme Australia and the Pacific,
There have been some positive signs of change with the democratically elected government as there are reports that:
Various legislative changes have been made by government including by the President in his speech to open parliament. Minister for Communications announced the review of the draconian the Media Act that has been criticised including by the Human Rights Council for its breaches of various rights related to a free press. Other changes in laws include those passed by the previous government affecting traditional rights and lands. The government has indicated that it will reinstate the Great Council of Chiefs, Fiji’s apex chiefly body that was abolished by the former government. The GCC was responsible for issues relating to indigenous rights particularly land and matters of custom but was removed when Bainimarama overthrew the government in 2006. Key human rights organisations in Fiji have reportedly stated that human rights are now respected and promoted in Fiji following the change of government. Others have argued that people are “finally free after 16 years of Fiji First government” and oppression of rights.[2]
[2] ‘Fiji after the 2022 Election Asia Pacific Regional Outlook February 2023. Special report: Fiji after the 2022 Election’, Asia Pacific Centre for the Responsibility to Protect, Asia Pacific Regional Outlook February 2023 (r2pasiapacific.org).
Further, on 30 January 2023 the Commissioner of Police was suspended by the Constitutional Officers Commission tasked with appointments of Constitutional Office holders, pending an allegation of abuse of office lodged against him.[3] The Commissioner of the Fiji Corrections Service was also suspended. Shamima Ali, head of Fiji Women’s Crisis Centre, said the decision was a significant step in installing transparency and human rights into law enforcement, since both suspended commissioners were former military heads. “We have been very concerned about the rapid militarisation of our civil services”, she said. “International human rights entities could not gain access into the prison services to review the conditions of prisoners”. With the suspension of Mr Kean, and the appointment of an acting commissioner, Salote Panapasa – the first woman to hold the position – Ms Ali is hopeful things will change”.[4]
[3] ibid.
[4] ‘Fijian women’s rights activists welcome suspension of police chief, prison boss’ Broadcast 30 January 2023, ABC, Fijian women's rights activists welcome suspension of police chief, prison boss - ABC Pacific.
The applicant at hearing did not say he was resiling from his initial claims that he feared speaking out about the former government and thought he would be harmed if he stood up to the government, and the Tribunal therefore takes these claims into consideration at the time of review. The evidence at hearing or otherwise did not, however, substantiate that the applicant was personally targeted, or any member of his family was personally targeted for ever having spoken out about the previous regime. The Tribunal finds that the applicant did not state that he had ever come to the adverse attention of the previous regime and did not claim he had a high political profile. In relation to the termination of his work at the [Employer 1] the applicant initially stated that he was not returned to the position because of the change of government and then speculated that it might have been because he did not vote for the Bainimarama government. Nonetheless, the applicant was able to find work after the termination even if it was part-time work.
The applicant also claimed that if he and his wife returned to Fiji now or in the reasonably foreseeable future, they would also suffer emotional and psychological harm. It is unclear who would inflict such harm, but it would appear that the applicant is claiming that the State would do so.
Under ss 5J(4)(c) and 91R(1)(c) of the Migration Act, persecution must involve systematic and discriminatory conduct. The Tribunal is not satisfied that the applicant’s dismissal (and non-reinstatement) from his employment and any consequent psychological distress was targeted, systematic or discriminatory by the State toward the applicant. The Tribunal has little evidence to indicate that the applicant had been targeted for any reason under s.5J(1)(a) by the State or any non-State actors. Instead, from the evidence it would appear that the loss of employment was a function of a change of government and changes in its arm of administration - the [Employer 1] - but was not inflicted deliberately on the applicant due to any particular characteristics he held pursuant to s.5J(1)(a). In terms of the future, and any psychological distress the applicant and his spouse may experience, there is no evidence that this would be for reasons under s.5J(1)(a) either.
The Tribunal has found that the applicant has never held a political profile and while on return to Fiji he and his wife may experience some dislocation and psychological distress, he has the majority of his family members living in Fiji and has proven resilient in the past when he has had to deal with providing for a young family in difficult circumstances.
The applicant’s claims at time of application are general, do not refer to locations or times involving threats; specific details which would have assisted the Tribunal put his claims in context. Nor has the applicant provided any information about when the critical events of standing up to the government occurred. When the Tribunal attempted to elicit specific information, for example, the applicant was vague and could not point to any particular point in time he had actually stood up against the previous regime. At hearing the applicant also stated that he hated what “they” (the previous regime) were doing to people. Hating is, however, not synonymous with speaking up against a regime and having one’s life threatened. Given the applicant’s inability to flesh out his claims about his life being threatened and that he was victimised because he was one of the ones who had stood up to the government of the day, the Tribunal is inclined to find that the applicant embellished his claims to enhance his protection application and rejects these claims outright.
The Tribunal does not place significant adverse weight on the fact that the applicant’s claims at time of application did not perfectly mirror those he gave at hearing and is prepared to accept that his claims evolved as had the situation in Fiji. While the Tribunal accepts that the applicant was disgruntled due to having lost his job in the circumstances he did, and because he had to find a new job and his daughter could not continue her tertiary studies, the Tribunal rejects that there was any political targeting of the applicant and rejects the applicant’s claims at time of application that:
·The applicant and his spouse cannot return to Fiji as he was one of those who stood up against the regime and was victimised.
·The applicant and his spouse cannot return to Fiji as their lives will be threatened due to standing against the undemocratic regime and they will be harmed by the regime.
·The applicant and his spouse could not move to another part of the country as there is no safe place as movement is monitored and he will be targeted.
·The applicant and his spouse will be harmed emotionally and mentally if they return to Fiji.
·The applicant and his spouse will not be protected by the authorities in Fiji as the system is corrupt.[5]
[5] As reflected in the country information referred to by the Department in its decision, The Department of Foreign Affairs and Trade (DFAT) in 2022 reported that corruption is not a significant problem; and that overall, the day-to-day risk of corruption is low. See ‘DFAT Country Information Report Fiji May 2022’ Australian Government, Department of Foreign Affairs and Trade, 20 May 2022, country-information-report-fiji.pdf (dfat.gov.au).
The Tribunal appreciates that at hearing the applicant stated that the country information seemed to indicate that post the December 2022 elections, things appeared to improve but the reality was that the country continued to be beset by corruption and one could not live freely there. Nonetheless, the Tribunal finds that the applicant and his wife, even under the repressive regime, had continued to work and live there without serious harm, where he and his wife were not specifically targeted for their political or imputed political opinion (anti-Bainimarama). Indeed, the applicant’s wife seemed to have uninterrupted (barring three months) work in a job she did for 31 years.
Accordingly, on the basis of the applicant’s claims to the Department, the Tribunal finds that the applicant did not and does not have a well-founded fear of persecution for any reason under s.5J(1)(a). The Tribunal will discuss the issue of the applicant losing his job further in the decision as he did not mention this matter at the time of application.
Claims at the time of review
Essentially, the Tribunal accepts that the applicant and his spouse wish to stay in Australia because of the political stability of the democratic process here and because of the high standard of health. The Tribunal also accepts that in 2005 the applicant was fired from the [Employer 1] in Fiji due to an accident where he was not at fault, and that despite going to court over the matter and the court finding in his favour, he was not reinstated to his former role as an [Occupation 2]. In addition, the Tribunal accepts that the applicant could no longer afford to keep his daughter at university and was forced to find alternative income and used a van to drive people who would pay him for his services. The applicant also has concerns about inflation in Fiji and the cost of living.
Political opinion/imputed political opinion
The Tribunal accepts that the applicant has a subjective fear that at any moment Fiji could descend into military rule and that this could mean that normal life would be disrupted and the economic situation in Fiji could falter as it has during past coups. The Tribunal’s task, is however, to assess whether the applicant’s fear is objective and well-founded. The applicant does not accept that because the elections of December 2022 were held transparently and fairly, that another coup could not occur, given that many of the personalities involved in past coups hold positions of influence in the current government and the military is involved in the government and can take over at any time. This subjective fear causes the applicant and his wife psychological anxiety as coups have been a part of the political landscape since 1987.

The applicant’s outline of the situation in Fiji currently is not altogether inconsistent with some of the country information that would indicate that the democratic process borne of the December 2022 elections is fragile.
An article refers to the fragility of the situation in Fiji in terms of democratic government and its institutions:
After 16 years, Fiji has a new prime minister Sitiveni Rabuka following the December 2022 election. But it’s a sign of the shaky foundations of democracy that both Rabuka and the leader he replaced, Frank Bainimarama, have previously led coups to oust democratically elected governments. Ethnic divisions have provided the pretext for coups, and may be exploited again to unsettle a potentially fragile governing coalition. Civil society and the media will hope the new government invests in deepening democracy by reversing the previous government’s hostility towards dissent and enabling the freedoms to speak out and mobilise.[6]
[6]‘Fiji’s New Government: A Less Repressive Trajectory?’, 5 January 2023, Civicus Lens, Perspectives for a Changing World’, Fiji’s new government: a less repressive trajectory? - CIVICUS LENS.
Speculation had also been circulating on social media regarding an imminent coup which the Commander of the military forces, Maj Gen Jone Kalouniwai, has rejected.[7]
This relates to unofficial leaked documents being circulated online, alleging the Fijian coalition government of misinterpreting the 2013 Constitution and calling for the military to intervene.
Claims that the opposition FijiFirst authored one of the leaked documents have been rejected by the opposition leader, but the party is yet to comment on a second document which surfaced on Monday.
Kalouniwai told FBC the military will continue to abide by the law, and will also respect the decision of the people who voted for the government.
…
Police chief of operations ACP Livai Driu has told fijivillage.com’s Straight Talk there was an open investigation into the “unsigned documents” circulating online.
“I would like to assure the members of the public to stay safe and be calm”, Driu said.
“Our security environment at the moment is stable and our criminal front is controllable. We need to stay calm. I want to assure the public that under our watch we will ensure those who are implicated into this [unsigned documents] will be taken to task if they are caught”.[8]
[7] ‘Fiji military chief dismisses suggestions of a coup’, 20 July 2023, RNZ, Fiji military chief dismisses suggestions of a coup | RNZ News.
[8] Ibid.
Country information indicates that the military continues to want to exert pressure and influence on the newly elected coalition government:
The commander of Fiji’s military forces is signalling that the new government must tread carefully in its reforms, particularly those that might lessen military power.
We are starting to see what Fiji politics is likely to look like under the new government elected in December 2022.
One thing is clear: the Republic of Fiji Military Forces (RFMF) is reluctant to disappear from the political scene and does not want to relinquish the advantages it gained under the post-2006 coup military-backed government that was defeated at the polls a month ago.
On Tuesday, Maj Gen Jone Kalouniwai the RFMF commander, issued a statement critical of the “ambition” and “sweeping changes” initiated by the new government. In particular, Kalouniwai warned against undermining the 2013 constitution, which declares the military to be a “guardian” of Fijian democracy and gives “overall responsibility” to the military “to ensure at all times the security, defence and wellbeing of Fiji and Fijians”.
…
[9] Pio Tikoduadua is now home affairs minister.
[10] ‘Fiji’s government may have changed, but the military is making it clear it will not go quietly’, Jon Fraenkel, The Guardian, 19 January 2023, Fiji’s government may have changed, but the military is making it clear it will not go quietly | Jon Fraenkel | The Guardian.
Yesterday’s statement was a warning to the new government to tread gently in its reforms. It was rightly criticised by Tikoduadua [9], who has refused to submit to such pressures. The commander has indicated that he is willing to play ball with the new government, but he needs to realise that the RFMF’s guardian role, which was only obtained as a result of the 1987 and 2006 coups, cannot for ever be imposed on his country’s elected governments.[10]
Even if the speculation of an impending coup has remained just that, there is a sense of uncertainty that things could change at any time in the political system of Fiji, and this is the context in which the applicant would be returning to his home country. However, the fears expressed by the applicant and his spouse at hearing about how they would fare were there to be another coup due to their old age are generic ones about the country’s instability. The Tribunal does not accept that the applicant and his wife would specifically be targeted for deprivation of the capacity to make a livelihood of any kind or that they would be deprived of access to basic services for any reason under s.5J(1)(a) or for any reason. Rather, the political situation in Fiji, which has been unstable for a lengthy period is not pointed at the applicants because of any characteristics or attributes they hold. As the Tribunal has stated, the applicant and his wife, while they suffered some discomfort and possibly distress in the past due to coups, have managed to raise a family and purchase a home and make a life for themselves in Fiji.
As the Tribunal has found that the applicant and his wife never had an adverse or other political profile in Fiji, the Tribunal finds that a person who is of no interest to the government would not engage Australia’s protection obligations, regardless of the regime in power. As the Department highlighted in its decision, the 2022 DFAT country report on Fiji assessed that police actions against members of opposition parties have been directed at high-profile people; rank and file and low-profile opposition party members would be much less likely to experience interference. Those involved or perceived to be involved in opposition parties who facilitate high-profile criticism (for example, journalists or social media users), may be questioned by police, but this appears not to be a widespread problem affecting low-profile party members.[11]
[11] DFAT Country Information Report Fiji May 2022’ Australian Government, Department of Foreign Affairs and Trade, 20 May 2022, country-information-report-fiji.pdf (dfat.gov.au).
The applicant has been able to leave Fiji freely and was able to purchase his own home in Fiji and while his family may not have always been comfortable, they were never destitute. As the applicant put it, he was simply a voter and in December 2022, he was in Australia, so he did not even get to participate in those elections. The applicant at hearing appeared to be ambivalent about all political parties in Fiji, especially after the 1987 coup, although it appears that when he lost his job in 2005, he was not a supporter of Bainimarama.
The Tribunal does not accept, therefore, that on return to Fiji the applicant would be of any interest to the authorities on account of any political opinion as the Tribunal has found that he has never given articulation to any political opinion in a high-profile manner. As such, the Tribunal finds that the applicant does not have a well-founded fear of persecution on account of any political or imputed political opinion because the Tribunal has rejected that the applicant has ever been an active member of any political party in Fiji and has never expressed any political opinion either at an extensive or low level.
Losing job with [Employer 1] in 2005
The applicant claims that he lost his job as an [Occupation 2] in 2005 because he did not have political influence and was unjustly blamed for causing an accident when in fact a truck [did] not pull aside to give the applicant access of way. The Tribunal has limited information about this event but is prepared to accept that the applicant lost his job and that he went to court and that even though the case was decided in his favour, the applicant was never reinstated in his old job. The Tribunal is also prepared to accept that the change in government might have meant the [Employer 1] could no longer accept the findings of the courts. In addition, the Tribunal accepts that that period in the applicant’s life in 2005 caused the family financial hardship and that the applicant was forced to draw on his Provident Fund. The Tribunal accepts that the applicant’s daughter as a result was not able to complete her university studies.
The Tribunal finds, however, that the applicant’s difficulties with the courts not imposing their findings that the applicant was entitled to be returned to his previous employ, was not due to any s.5J(1)(a) reason but rather was a function of the inner workings of the [Employer 1] and the directions of the government of the day and there is little evidence to demonstrate that the applicant was being targeted by the government specifically to make sure he never worked again. The applicant speculated that it might have been because he had not voted for Bainimarama, however, the Tribunal finds that given the military were in power at that time, that it would have been able to overrule the courts and the [Employer 1] without concern for the applicant’s political leanings or otherwise, even if his old employer wanted him to return to [work]. In addition, retrenchments can occur for many reasons including that operational requirements mean fewer resources are available and services are cut, for example.
In terms of whether there is a real chance that the applicant and his spouse will be persecuted now or in the reasonably foreseeable future were they to return to Fiji on account of this incident, the Tribunal finds that given the change in regime, and given that the incident happened some 18 years ago now, the chance of the applicant being seriously harmed on account of this incident is remote and far-fetched and not a real one. The applicant was resourceful in being able to start up his own business with the van after losing that job and together with his wife managed to keep the household together. The applicant was not prevented from earning a livelihood of any kind by the State or any other non-State actors. The fact the applicant and his wife at their age have returned to paid work in Australia demonstrates the strength of their motivation to be self-reliant and capable in any environment.
Age/cost of living/unstable political situation
The Tribunal appreciates that the applicants are now older and feel vulnerable and consider they would not be able to work in Fiji due to their age. These matters together with the cost of living and an unstable political situation, the applicants fear, would mean they would not be able to survive. This is especially since the medical facilities in Fiji are wanting.
The Tribunal does not accept, however, that the applicant and his wife could not obtain some form of income generating work, even if it were not part of the open market. Even more importantly, however, the Tribunal places weight on the fact that the applicants’ children are all working, despite having their own families, and that in combination they could provide for their parents’ well-being.
In terms of the deficiencies in the hospital and allied services systems in Fiji, the Tribunal accepts that they are not of a standard available to Australians. Nonetheless, this deficiency is not targeted at the applicant and his spouse by the State. Indeed, as pointed out at hearing even MPs refused to be treated there and having the resources were able to seek treatment in Australia.
The Tribunal therefore rejects the applicant’s claims that being older will place them at risk of serious harm and persecution due to their age and inability to access some form of medical assistance in Fiji in the event of a political coup.
Having considered the applicant’s claims at the time of review, and having rejected those at time of application, the Tribunal also does not accept:
·That the applicant lost his job with the [Employer 1] for any political reason where he was targeted for his political beliefs.
·The applicant and his wife are hated because they did not vote for Bainimarama.
·That the applicant had ever stood up to the previous regime or any regime in Fiji.
·That the applicant ever held a political profile - high or otherwise.
·That the applicant’s life has been and would be threatened on account of his political opinion or for any other reason under s.5J(1)(a) by any political regime.
·That the army would catch him be it in a village or town and take them to a camp and would torture them and put them to work like frogs.
·There was no freedom in Fiji.
·There was no freedom of movement in Fiji.
·As older persons the applicant and his spouse would not survive because they had exhausted their funds and could no longer work and because the health system is poor in Fiji.
·The applicant and his wife would suffer psychological and emotional harm on return to Fiji for any reasons related to s.5J(1)(a).
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).

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).
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). The Tribunal has considered whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that he will suffer significant harm. The Tribunal has had regards to the applicant’s claims as above but has rejected that there is a real chance that the applicant will suffer persecution or serious harm on account of his political or imputed political opinion or for any reason under s.5J(1)(a). In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the definition.
Having found that the Tribunal is not satisfied that the applicant has ever engaged in political activity or been affiliated with any political party, the Tribunal is not satisfied that there are substantial grounds for believing that a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that the applicant will suffer significant harm.
The Migration Act sets out what significant harm might entail, that being, that the applicant will be arbitrarily deprived of his life; or the death penalty will be carried out on the applicant, or the applicant will be tortured; or he will be subjected to cruel or inhuman treatment or punishment; or he will be subjected to degrading treatment or punishment.
The evidence does not support this to be the case.
The Tribunal therefore 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).
Ministerial intervention
The applicant understands that one of the options open to him and his wife is to seek Ministerial intervention – an option the applicant is likely to pursue. The applicant and his wife have extensive support as they contribute to the welfare of the Fijian community and play a role in the spiritual life of their fellowship. The Tribunal understands that the applicant and his wife may put together an argument to the Minister demonstrating that there are compelling reasons for an assessment of whether their case meets the relevant guidelines for the Minister to intervene.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rosa Gagliardi
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 909

19 January 2024

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