2209616 (Refugee)

2209616 (Refugee) [2024] AATA 1310 (19 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2209616
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 3:06pm
CATCHWORDS
REFUGEE – Protection Visa – Fiji – political opinion – supported those in opposition to Bainimarama – was not a member of any particular political party – husband’s dismissal from his employment – loss of employment was a function of a change of government – psychological distress was not targeted, systematic or discriminatory by the State toward the applicant – applicant embellished claims to enhance 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, 56, 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 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 she 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 her spouse, Mr [A], who had also applied for protection and on whose claims she was largely relying at hearing given the similarity of their claims at the time of application. Hence, this decision ought to be read in conjunction with Decision: 2209614.
The Tribunal also took evidence from Senior Pastor, [Church 1], Mr [B], a close family friend.
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, she would be persecuted for one of those reasons and/or whether she 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 in her application form the applicant was asked why she had left her home country, Fiji. She wrote:
Due to the current political climate that current regime is illegal. There are no freedom 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 this undemocratic regime.
The applicant was asked at question 77 what she thought would happen to her on return to Fiji and she wrote, “My life will be threatened and I will be targeted by the regime”. She indicated that she did not try to move to another part of that country to seek safety because, “There is no place safe to move to as our movement is monitored”.
At question 81 the applicant was asked to say whether she will be harmed or mistreated on return to Fiji and to provide details about the type of harm and mistreatment she would experience, and who would be responsible for such treatment. The applicant responded “yes” she thought that she would be harmed or mistreated and that “I will be harmed emotionally and mentally”.
The applicant was asked at question 82 whether she thought the authorities of Fiji would protect her on return to her home country and she responded, “No the authorities are all the same as the system are corrupted”. She wrote that she did not think she could relocate and thought it unwise because she would still be targeted.
The Tribunal notes that on 3 February 2022 the applicant was sent an acknowledgment of valid application letter by the Department and that she nor her husband had provided any documentary evidence to support the claims made in their applications (which are similar) and at the time of writing the Departmental decision (five months post the 3 February 2022), they were yet to do provide any additional information. The applicant and her husband did not submit any new information to directly support their case, albeit they did submit letters of support from their community.
The Tribunal hearing
The applicant’s husband told the Tribunal that they came together as Visitors to visit their son and his family in Australia. When the Tribunal asked the applicant’s husband whether there were other reasons he responded, “no”. They had been in Australia during COVID-19 and had been prevented from returning to Fiji, although they could do so now.
The applicant’s husband’s narrative at hearing was that both he and his spouse were now older than 55 years and it would be difficult to find work. Indeed, he stated that they could not work after 55 years. The applicant is now [age] years of age, and her husband is [age].
The applicant and her husband have four children. Three are living in Fiji and are working and their son was living as an Australian citizen in Australia. The applicant and her husband had exhausted their fund in their Provident Funds because the applicant’s husband had been terminated from his job because of an accident he had had as an [Occupation 1] for [Employer 1]. During this time their daughter had had to cease her studies and the applicant’s husband had relied on their Provident Funds to support the family. The applicant’s husband had pursued his dismissal in the courts and had had a decision made in his favour, but the [Employer 1] had not reinstated him despite the court win. The applicant’s husband stated at hearing that he never was returned to his old job because there was a change of government and later stated that it could have been due to the fact he had not voted for Bainimarama. In any event the applicant’s husband managed to find work [doing a specified job] and he derived an income from this activity. He had never found full-time work after that and had only had part-time positions.
At hearing with the applicant’s husband, the Tribunal noted that he had made some serious claims about being threatened by the regime for having stood up to it. Indeed, the applicant made exactly the same claims in her application. While the Tribunal attempted to elicit detail about how she and her husband had stood up to the regime and were victimised, the applicant’s husband provided only vague answers and became evasive. The Tribunal put to the applicant’s husband under s.424AA of the Migration Act that the claims he made at time of application were not discussed by him at hearing and indeed there was a divergence of evidence.
The applicant’s husband stated that there was no divergence and that the Tribunal had not asked him about his fears at the time of application. Rather his fears at time of application and at time of review continued to remain the same.
The Tribunal asked the applicant why she specifically could not return to Fiji now. 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 cleaner part-time in Australia and she loved it. She exercised her body.
The Tribunal asked whether the applicant feared anything on return to Fiji and she responded that what has already happened could happen again, such as during the coups. 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 the applicant and her husband had continued to work in reasonably good jobs. The applicant 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 the applicant to identify anything else she feared on return to Fiji. She explained that the government now was 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. She added that it was better for them to stay in Australia rather than go back to Fiji.
The Tribunal referred to the applicant’s application which largely mirrored that of her husband. The Tribunal noted that her husband had written in his application, as did she, that she feared for her life because she would be 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 her husband 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 [specified] 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 seek legal advice about their options to remain in Australia.
[Mr B] added that the applicant’s husband had had an accident, and even though he won the case they did not pay him. If the applicant’s husband 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 in any event) 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:
·[Ms C] stating that she met the applicant’s husband in 2022 via a group connecting local [Town 1] churches and that he is nice, honest and dependable and treats Australia with the highest respect. Ms [C] also advances that the applicant’s husband 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 D], [Town 1] Community Church, stating that the applicant’s husband serves with him in areas of ministry. The applicant’s husband is described as a kind and caring person who never hesitates to be of assistance to those in need. Mr [D] adds that the applicant’s husband has been pivotal in providing support for the many Fijian and [workers] who reside in [Town 1 and surrounding areas]; and with his wife, the applicant, has been instrumental in the forming of a [church] in [Town 1]. Moreover, the applicant’s husband has proven himself to be a man of integrity and has a desire to serve members of the local community.
·the applicant’s and her husband’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 her husband were respected members in the community.
·Senior Pastor of [Church 1], Mr [B], writes that he supports the applicant and her husband remaining in Australia. The applicant’s husband 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’s husband is also the Elder of [an organisation] 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 her husband’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 [Mr E], [advising] he has found the applicant’s husband to be 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. 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’s husband and the applicant at hearing did not say they were resiling from their initial claims that they feared speaking out about the former government and thought they would be harmed if they 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 her family was personally targeted for ever having spoken out about the previous regime. The Tribunal finds that the applicant did not state that she had ever come to the adverse attention of the previous regime and did not claim she had a high political profile. In relation to the termination of her husband’s work at the [Employer 1], the applicant’s husband 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 she and he did not vote for the Bainimarama government. Nonetheless, her husband was able to find work after the termination even if it was only part-time work.
The applicants also claimed that if they 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 they claim 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 husband’s dismissal (and non-reinstatement) from his employment, and any consequent psychological distress was targeted, systematic or discriminatory towards them by the State. The Tribunal has little evidence to indicate that the applicant’s husband 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’s spouse 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 her husband 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 she and her husband may experience some dislocation and psychological distress, she has the majority of her family members living in Fiji and has proven resilient in the past when she and her husband have 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 her 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’s husband was vague and could not point to any particular point in time he had actually stood up against the previous regime. Nor could the applicant. At hearing the applicant’s husband simply 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 her claims about her life being threatened because she 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 her claims to enhance her protection application and rejects these claims outright.
While the Tribunal accepts that the applicant was disgruntled that her husband lost his job in the circumstances he did, and had to find a new job and their daughter could not continue her tertiary studies, the Tribunal rejects that there was any political targeting of the applicant or husband and rejects the applicant’s claims at time of application that:
·   The applicant and her spouse cannot return to Fiji as they were one of those who stood up against the regime and was victimised.
·   The applicant and her 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 her 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 her spouse will be harmed emotionally and mentally if they return to Fiji.
·The applicant and her 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’s husband 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 her husband, even under the repressive regime, had continued to work and live there without serious harm, where he and her husband were not specifically targeted for their political or imputed political opinion (anti-Bainimarama). Indeed, the applicant seemed to have had uninterrupted (barring three months) work in a job she did for 31 years, according to her husband’s evidence.
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).
Claims at the time of review
Essentially, the Tribunal accepts that the applicant and her spouse wish to stay in Australia because of the political stability of the democratic process here and because of the high standard of health facilities. The Tribunal also accepts that in 2005 the applicant’s husband 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 1]. In addition, the Tribunal accepts they could no longer afford to keep their daughter at university and the applicant’s husband was forced to find alternative income and [did other work]. The applicant also has concerns about inflation in Fiji and the cost of living and their health as they progress into old age, particularly in the context of another coup.
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 her spouse psychological anxiety as coups have been a part of the political landscape since 1987.
The applicant’s fears of the general 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, even if reliable information points to a meaningful improvement of people’s rights.
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 her spouse at hearing about how they would fare were there to be another coup due to their old age, are generic and relate to the country’s instability generally. The Tribunal does not accept that the applicant and her husband would specifically be targeted for deprivation of the capacity to make a livelihood of any kind or that that they would be deprived of access to basic services for any 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 her husband, 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 her husband 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 together with her husband their own home and while their family may not have always been comfortable, they were never destitute. As the applicant’s husband 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. At hearing he 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 she has never given articulation to any political opinion in a high-profile context. 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.
Husband’s loss of job with [Employer 1] in 2005
The applicant’s husband has claimed that he lost his job as an [Occupation 1] in 2005 because he did not have political influence and was unjustly blamed for causing an accident [details deleted]. The Tribunal has limited information about this event but is prepared to accept that the applicant’s husband lost his job and that he went to court and that even though the case was decided in his favour, the applicant’s husband 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 period in the applicant’s and her husband’s lives in 2005 caused the family financial hardship and that the couple was forced to draw on their Provident Funds. The Tribunal accepts that the applicant’s daughter as a result was also not able to complete her university studies.
The Tribunal finds, however, that the applicant’s husband’s difficulties with the courts not imposing their findings that he 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. There is little evidence to demonstrate that the applicant’s husband was being targeted by the government specifically to make sure he never worked again. The applicant’s husband 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] regardless of the applicant’s husband’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 her 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 and her husband being seriously harmed on account of this incident is remote and far-fetched and not a real one. The applicant’s husband was resourceful in being able to start up his own business [after] losing the [job] and together with his wife managed to keep the household together. The applicant and her husband were not prevented from earning a livelihood of any kind by the State or any other non-State actors. The fact the applicant and her husband 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 her husband 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 her spouse by the State or anyone else. 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 another coup.
Having considered the applicant’s claims at the time of review, and having rejected those at time of application, the Tribunal does not:
·That the applicant’s husband lost his job with the [Employer 1] for any political reason where he was targeted for his political beliefs.
·The applicant and her husband 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 her and her husband, be it in a village or town, and would take them to a camp and torture them and would 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 her husband 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 her husband would suffer psychological and emotional harm on return to Fiji for any reasons related to s.5J(1)(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 she 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 her 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 her life; or the death penalty will be carried out on the applicant, or the applicant will be tortured; or she will be subjected to cruel or inhuman treatment or punishment; or she will be subjected to degrading treatment or punishment.
The evidence does not support this to be the case.
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).
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).
Ministerial intervention
The applicant understands that one of the options open to her and her husband is to seek Ministerial intervention – an option they are likely to pursue. The applicant and her husband 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 applicants 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 1310

19 January 2024

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Immigration

Statutory Interpretation

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Procedural Fairness

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