2210073 (Refugee) - [2024] AATA 3684

2210073 (Refugee) [2024] AATA 3684 (25 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Surendra Man Shrestha (MARN: 9578885)
CASE NUMBER:  2210073
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Mary-Ann Cooper
DATE:25 July 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 25 July 2024 at 10:05am
CATCHWORDS
REFUGEE – protection visa – Fiji – imputed political opinion – burning of a Bainimarama election banner – credibility concerns – movement records – voluntary returns to country – delay in seeking protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H, 5J, 36, 65, 424AA
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 July 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, applied for the visa on 18 February 2022. The delegate refused to grant the visa on the basis that the applicant did not satisfy the criterion in s 36(2)(a) of the Act and was not a person in respect of whom Australia had protection obligations as outlined in s 36(2)(aa).
The applicant appeared before the Tribunal on 28 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.
The applicant was represented in relation to the review however his representative did not attend the hearing.
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). 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 (DFAT) 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 is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds.
The Tribunal has considered the written and oral evidence provided as well as independent resources concerning Fiji. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality
Section 5H(1) of the Act refers to a person being a refugee if they are outside the country ‘of nationality’. Section 5J(1) refers to this country as a ‘receiving country’.
In relation to complementary protection, s 36(2)(aa) refers to a person being removed to a ‘receiving country’, which is defined as a country of which the applicant is a national, to be determined solely by reference to the law of the country.
The applicant has provided a copy of his Fijian passport issued [in] 2017 and maintains he is a citizen of Fiji. The Tribunal finds that he is a citizen of Fiji and as such his protection claims will be assessed against Fiji as the country of reference and ‘receiving country’ respectively.
Background
The applicant last arrived in Australia [in] January 2020 on a FA-600 Visitor visa which was due to expire [in] April 2020. On 18 February 2022 he applied for a XA-866 Protection visa which was refused by the Department for the reasons noted below. The applicant’s protection visa application does not include any family members.
Personal background
The applicant was born [in Location 1], Fiji on [date]. According to his protection visa application and oral evidence at hearing, he has a wife and [number] grown children, one of whom lives in Australia. As also confirmed at the hearing, he attended primary and middle schools in Fiji and trained as a [Occupation 1]. He undertook various jobs in Fiji and first came to Australia [in] December 2017 on a FA-600 Visitor visa. He entered and departed on 3 further occasions from 2017 to 2020, last arriving in January 2020 and has remained on bridging visas since 16 September 2020.
APPLICANT’S CLAIMS AND EVIDENCE
Evidence before the Department
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision record. The applicant provided a copy of the delegate’s decision to the Tribunal with the application for review.
In his protection visa application, the applicant claims to have left Fiji because ‘of fear and death threatened to me by the existing government of Bainimarama. [The applicant] is always against him. There is direct threat to his life.’[1] In relation to harm he experienced in Fiji he states ‘In May 2018 his village was attacked by Bainimarama’s Army and [the applicant] was one of the victims.’ He claimed to have sought help but ‘there was no help from anyone, could not report to anyone.’ He could not relocate because ‘Fiji is very small and I live with my family and they can find him anywhere in Fiji.’ He claims that if he returns to Fiji ‘his supporters will kill him’ and further that ‘Bainimarama’s supporters are killing his opponents like animals unnoticed.’ He does not believe the authorities can help him because ‘Bainimarama supporters are criminal and they are enjoying the support from the existing government.’
[1] The protection visa application claims were made in a mix of first and third person.
The delegate, in refusing the application, noted that, at the time, freedom of speech, expression and association were curtailed in Fiji following Bainimarama’s coup in 2006. Serious human rights abuses had occurred, including the arrest, detention and physical mistreatment by the military of perceived opponents to the government. The delegate also notes however that the U.S. Department of State recorded in 2013 and 2014 that the military had ceased this activity.
After extensive research, the delegate could find no records of attacks committed by Republic of Fiji Military Forces (RFMF) or the Territorial Force/Reserve against Fijian people in the period 2017–2021 other than a couple of unrelated attacks. Specifically in relation to the village, [Village 1], in which the applicant was residing in 2018, the delegate noted three news reports from 2015 to 2018. These however concerned disputes between the clans which were resolved. There were no reports of any attacks on the village. The delegate noted that more recent information indicated that people critical of the government were no longer subject to harm and the applicant’s claims in this regard were not accepted.
After analysing country information and noting the lack of detail or evidence in support of the applicant’s claims, while accepting he may have personal anti-government views, the delegate was not satisfied the applicant had a political profile which would attract any adverse attention from the Fijian authorities. The delegate was not satisfied the applicant faced a real chance of serious harm as a result of his political opinion. For the same reasons the delegate was not satisfied there was a real risk of significant harm and the application was refused.
Evidence before the Tribunal
At the hearing the applicant said his wife helped him prepare his protection visa application and he was satisfied that it was true and correct. He confirmed the personal information in the visa application and that he had not travelled overseas to any countries other than Australia.
He said he was not working in Australia because he had no work permission and was being supported by his friends and his son. As outlined in his protection visa application, he confirmed previous employment in Australia.
When asked why he applied for protection, the applicant responded that he was threatened by followers of Bainimarama in May 2018. He said it was around election time and Bainimarama’s banner was erected in their village but someone had burned it down. He said Bainimarama’s followers (later he said it was the military), more than 10 of them, came to the village and pointed a gun at the villagers and then at him individually. He claimed he was told that whoever burned the banner would be taken away and they would throw away the key. He said he was also told if it was him ‘we’ll come and get you.’ He understood this as a threat to kill him. He said he did not know who had burned the banner but observed that one student was taken away because he or she was taking photos. He said he was not threatened again but remained fearful of Bainimarama’s followers. He said he was not and is not involved with any political party or activity and confirmed he did not experience any other instances of harm.
The Tribunal asked the applicant about his travel to Australia and he said he had first come to Australia in 2018 and had travelled here two more times since then, returning home to Fiji each time. There is no claim or any indication that he had any difficulty departing or returning to Fiji on these occasions. His responses in this regard were somewhat vague and inconsistent with Departmental records of his movements to and from Australia, so the Tribunal put these records to him under s 424AA of the Act. Those records demonstrate that he travelled to and departed from Australia on FA-600 visas as follows:
· Granted FA-600 visa on 16 November 2017 (cessation date 1 March 2019), arrived in Australia [in] December 2017, departed Australia [in] January 2018; arrived in Australia [in] December 2018, departed [in] January 2019.
· Granted FA-600 visa 1 March 2019 (cessation date 16 April 2020), arrived in Australia [in] October 2019, departed [in] January 2020; arrived in Australia [in] January 2020 and remained.
The Tribunal explained the information was relevant because, inconsistently with his claims, and subject to his response, it undermined his claim to fear harm on return to Fiji and his unhindered movement in and out of Fiji indicated that he was of no adverse interest to the Fijian authorities. The Tribunal told the applicant that the consequences of it relying on the movement records, when considered with his failure to disclose all these dates, both in his protection visa and at the hearing, might mean it doubted the credibility of his evidence and lead it to conclude that he in fact had no fear of harm in Fiji but, rather, applied for the protection visa to prolong his stay in Australia. He therefore may not meet the criteria for a protection visa. This would be a reason, or part of the reason, for the Tribunal to affirm the decision under review, that is, to refuse his protection visa application. The Tribunal asked if he understood why the information was relevant and offered him the opportunity to respond at the hearing or later. He chose to respond at the hearing. He told the Tribunal he now remembered and confirmed the dates, explaining that he had travelled with his wife and she had wanted him to return with her. He noted that following his departure on [date] January 2020 he had quickly returned to Australia on [date] January 2020.
The Tribunal asked him why he had not applied for protection earlier, as soon as he was back in Australia. He responded that he was living with his son who was caring for him. He said he had started to see a future in Australia. He acknowledged that he had been in Australia unlawfully for some months but maintained that he did not know he could claim protection and that he had been unaware of the process. He claimed that because of COVID-19 the borders were closed and he had been unable to leave the country.[2] He said he only found out about the visa in 2022 from other Fijians and that had prompted his recollection of what had happened in Fiji in 2018.
[2] There was some confusion concerning the applicant’s bridging visa grants. Further inquiries with the Department revealed that the bridging visa E granted on 16 September 2020 ‘was among visas granted due to the border closure at the peak of COVID19 pandemic between 2020 and 2021’.
The Tribunal then put relevant country information to the applicant. It noted that since the December 2022 election in Fiji, Bainimarama was no longer in power and the updated information indicated that the transition to power had been peaceful with the military refusing to intervene.[3] Furthermore, people who were deported, threatened or forced to leave Fiji for speaking out against the former FijiFirst government were being granted permission to return, and are doing so.[4]
[3] Herr, Richard ‘Can Fiji keep its democracy in 2023?’ East Asia Forum, 3 February 2023; https:// eastasiaforum.org/2023/02/03/can-fiji-keep-its-democracy-in-2023/; accessed 11 July 2024.
[4] Schneider, Nancy ‘Cautious Optimism for Fiji’s Coalition Government’, Australian Institute of International Affairs (AIIA), 8 March 2023; outlook/cautious-optimism-for-fijis-coalition-government/; accessed 11 July 2024.
It also referred to the DFAT country information on Fiji which reported that, since the election of the Rabuka government, there were no reports of former Prime Minister Bainimarama, his supporters, or the military pursuing Fijians who opposed the former government. DFAT further noted that, since the change of government in December 2022, it was not aware of any reports of the RFMF pursuing nationals who publicly opposed former Prime Minister Bainimarama or his party.[5]
[5] DFAT ‘Fiji Country Information – Political Update’, 3 August 2023; report 20230621135833 (DFAT August report).
The Tribunal observed that this information indicated that former opponents of Bainimarama did not need to fear harm and, combined with the applicant’s previously unhindered movement in and out of the country while Bainimarama was in power, suggested he was not of any interest to him or his supporters anyway. The Tribunal put to the applicant that this indicated that the applicant need not fear returning to Fiji and also that he was not considered a threat by, or of any concern to, the former Bainimarama government or its followers. The applicant maintained that he feared he would be harmed if he returned, that Bainimarama’s followers are still in Fiji and he is afraid he is on a ‘list’ of Bainimarama’s opponents. He said the country was still a dictatorship. He was unable to offer any plausible explanation as to why he thought he was on a list or why he considers Fiji is still a dictatorship. He said he sees a future in Australia for himself and his family, with more jobs and opportunities and he does not want to return to Fiji. The Tribunal explained that the criteria for the visa for which he had applied required an assessment of whether there was a real risk or real chance that he would be persecuted or suffer significant harm if he was returned to Fiji. On the information before it, the Tribunal told the applicant that it did not appear that there was such a risk. The applicant maintained he was still frightened to return.
Credibility
In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. This, in turn, requires the Tribunal to assess whether the applicant’s claims are credible.
The mere fact however that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[6]
[6] MIEA v Guo (1997) 191 CLR 559, 596; Prasad v MIEA (1985) 6 FCR 155,169–70.
As discussed with the applicant, and as previously noted,[7] the Tribunal has significant reservations as to the credibility of the applicant’s protection claims. The Tribunal notes that the applicant did not provide any supporting evidence of the alleged attack on his village in May 2018 and available country information does not refer to it. Even if the Tribunal accepts that the incident occurred, the fact that the applicant was able to leave and re-enter Fiji without incident on 3 occasions following the event, while Bainimarama was still Prime Minister, indicates he was of no interest to the authorities and/or Bainimarama supporters. His response that he had to accompany his wife when travelling does not alter the fact of the lack of interest by anyone in his departures and returns.
[7] Above, paragraph 27.

Furthermore, the lack of a plausible explanation for the delay between the applicant’s second entry to Australia [in] December 2018, or even his last entry [in] January 2020, and his protection visa application on 18 February 2022, casts significant doubt on the genuineness of his claims to fear persecution arising from the incident in May 2018. His claim that he did not know he could claim protection until just before he made the application is unconvincing given his three trips to Australia after May 2018. As put to the applicant at the hearing, the Tribunal considers if he had genuinely feared harm on return to Fiji he would have made inquiries in Australia at the earliest available time. Rather, as the Tribunal also put to the applicant, it suggested that the applicant made the protection visa application to prolong his stay in Australia not because he has or had a well-founded fear of persecution. The applicant maintained his fear of return but acknowledged that he wished to stay in Australia because of his son and grandchildren and that he sees a future here for his family.
CONSIDERATION AND REASONS
While the Tribunal is not satisfied as to the overall credibility of the applicant’s evidence, it must bear in mind that if it makes an adverse finding in relation to a material claim made by the applicant, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[8] The Tribunal acknowledges that the country information relating to the circumstances prior to Fiji’s December 2022 election and the formation of the new government indicated that people participating in public protests faced a low risk of official discrimination, but that ‘such discrimination is not impossible’, and a moderate risk of violence in the form of police brutality.[9] DFAT further reported that protesters in general may be prevented by the state from protesting lawfully and that laws, including provisions outlawing sedition and the Public Order Act, could be used against protesters ‘which can lead to prison sentences’.[10] The Tribunal also notes that a United States Department of State report observed that under the previous government, public opposition to government policy or proposals ‘could provoke a sharp response’.[11]
[8] MIMA v Rajalingam (1999) 93 FCR 220.
[9] DFAT, DFAT Country Information Report Fiji, 20 May 2022 (DFAT report), 3.27.
[10] Ibid.
[11] United States Department of State, ‘2022 Country Reports on Human Rights Practices: Fiji’, 20 March 2023, (‘USDOS Fiji report’) p. 7.
Therefore, despite the Tribunal’s reservations as to the occurrence of the incident in May 2018 and what the applicant said had happened to him, the Tribunal has proceeded to determine the applicant’s claims concerning the incident in May 2018 on the basis that they may be true.
Findings
With this in mind, the Tribunal finds that:
·     The applicant was born [in Location 1], Fiji on [date].
·     He is married and has [number] grown children, one of whom lives in Australia and with whom the applicant currently resides.
·     An incident involving the burning of a banner promoting Bainimarama occurred at his village in [Village 1], Fiji in May 2018. It attracted the attention of the RFMF and as a result the applicant, along with other villagers, had guns pointed at them in the RFMF’s search for the perpetrator.
·     He did not burn the banner nor has he had any involvement in any political activities, either pro- or in opposition to the Bainimarama or his government or the current government.
·     He is not and has not been involved in any political group or party or activities in Fiji.
·     Neither he nor any of his family members have been threatened or harmed by the Fijian authorities for reasons of political opinion or imputed political opinion prior to or since May 2018.
·     The applicant has travelled to Australia from Fiji on visitor visas on three occasions since May 2018, departing Fiji and re-entering without incident.
·     Following his return to Australia [in] January 2020 and the cessation of his visa [in] April 2020 he remained in Australia unlawfully until he was granted a bridging visa on 16 September 2020.
·     He applied for this protection visa on 18 February 2022.
·     He was not and is not politically active in Fiji and on this basis the Tribunal infers that he will not be in the future if he returns to Fiji.
·     He wants to remain in Australia because he enjoys the quality of life and wishes to bring the remainder of his family here.
Refugee assessment
Section 5H(1) of the Act provides that 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. As noted above, the applicant’s nationality is Fijian and he is outside that country.
Section 5J of the Act provides that a person has a well-founded fear of persecution if:
·     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·     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 above; and
·     the real chance of persecution relates to all areas of a receiving country.
The applicant claims to fear harm in Fiji because of his imputed political opinion following an incident in his village in May 2018 in which a Bainimarama election banner was burned and following which the Fijian military came to the village and threatened the villagers with harm. The applicant claims he had a gun pointed at him. He denies any involvement in the burning of the banner or any involvement in political matters generally. The Tribunal accepts this evidence.
At the hearing the applicant said he thought he may be on a list and former supporters of Bainimarama may still be looking for him and harm him. He has provided no plausible supporting evidence of such a list and, given his free movement from and to Fiji after May 2018,[12] during the years of the Bainimarama government, and his lengthy delay before applying for a protection visa in Australia, the Tribunal does not accept as credible his claim to fear harm on return to Fiji for reason of his political opinion or imputed political opinion. On his own evidence he did not recall the May 2018 incident until he sought advice about prolonging his stay in Australia and he became aware of the availability of a protection visa, thereby significantly undermining the credibility of his claim to have a subjective fear on return.
[12] Noting that the Bainimarama government used re-entry bans as a de facto way of exiling critics. See p 10 of USDOS Fiji report.
Even if the Tribunal did accept the applicant had a subjective fear of harm in Fiji, s 5J(1)(b) requires that, for the fear of persecution to be well-founded, there be a real chance that, if the applicant is returned to his receiving country, he will be persecuted for this reason. That is, not only must the person fear persecution, but there must also be a prospect of that fear being realised. Mere speculation will not constitute a well-founded fear of persecution. In MIEA v Guo, the Court said:
Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.[13]
[13] MIEA v Guo (1997) 191 CLR 559, 572.
As discussed with the applicant, the Tribunal has had regard to independent country information sources that discuss the past and current situation for those involved, or perceived to be involved, in political activities in Fiji. As noted above, the independent country information confirms that Bainimarama and his supporters did subject opponents to adverse action.[14] Even so DFAT reports, in relation to the latter period of the Bainimarama government, that:
Politics in Fiji today is no longer characterised by the unrest of the past. The 2018 election was calm and orderly; international observers found the conduct of the election to be credible and that the outcome broadly represented the will of Fijian voters.[15]
[14] Above, paragraph 36.
[15] DFAT report, 3.32.
The DFAT August report confirms there has been no notable political unrest or deterioration of government functions since the December 2022 election when the new Prime Minister, Sitiveni Rabuka of the People’s Alliance formed a three-party coalition majority government.[16] It notes that it is aware of several instances where legal proceedings against critics of the former government that commenced prior to the December 2022 election have been discontinued or dismissed since the change of government.[17] As noted above,[18] the Rabuka government has also taken steps to facilitate the return of several critics of the former Bainimarama government to Fiji. People who were deported, threatened or forced to leave Fiji for speaking out against it are being granted permission to return. In addition, the current government has reversed politically motivated travel bans against several

high-profile critics of the former government.[19]
[16] DFAT August report.
[17] Ibid.
[18] Above, n3.
[19] DFAT August report.
DFAT also states that it is not aware of any reports of pursuit by Bainimarama or his supporters, or the military, of Fijian nationals who publicly opposed him or his party since the change of government in December 2022.[20] In relation to the current government, DFAT is unaware of any credible reports that it has harassed or ill-treated any supporters of the former Prime Minister Bainimarama.[21]
[20] Ibid.
[21] Ibid.
Therefore, in considering the current risks and risks in the reasonably foreseeable future for critics of the previous Bainimarama government, none of the material before the Tribunal suggests that current or former critics of the past government are being pursued or harmed for reason of their political opinion or imputed political opinion by anyone. Even if Bainimarama returns to power, the Tribunal considers it highly implausible that he and/or his supporters would be able to identify or recall and/or pursue the villagers involved in a single banner burning in a small Fijian village in 2018. This is particularly so in relation to the applicant who confirmed he does not and did not have any political involvement or engage in any political activity regarding Fiji.
In relation to risks in the foreseeable future for critics of the current government, noting the applicant’s statement that Fiji was ‘still a dictatorship’, as discussed with the applicant, nothing in the material available to the Tribunal indicates that critics of the current government are being targeted or otherwise being harmed for reason of their political opinion or imputed political opinion.
Considered cumulatively with the applicant’s unhindered exit and return to Fiji over the years following the May 2018 incident, his acknowledged lack of any political involvement or engagement in Fiji and his almost four-year delay in applying for a protection visa, the Tribunal is not satisfied that the applicant was, is now or will in the reasonably foreseeable future be of any interest to the Fijian authorities or their supporters for reasons of his political opinion or imputed political opinion.
The Tribunal considers the applicant’s stated fears of harm from followers of Bainimarama on his return to Fiji are merely ‘conjecture or surmise’ and the Tribunal is not satisfied that there is a real chance if he is returned to Fiji that he would suffer serious harm now or in the reasonably foreseeable future for reason of his political opinion or imputed political opinion. He therefore does not meet the requirements of s 5J(1)(b) and it follows that the Tribunal is not satisfied he has a well-founded fear of persecution such that he is a refugee and Australia has protection obligations in respect of him (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 whether he is a person in respect of whom Australia has protection obligations under the complementary protection grounds set out in s 36(2)(aa) of the Act.
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 a protection 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 the applicant 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’).
In this context, a ‘real risk’ in s 36(2)(aa) has been held to impose the same standard as the assessment of ‘real chance’ in the refugee criterion in s 36(2)(a).[22] A ‘real chance’ in the context of refugee assessment has been described by the High Court as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance.[23]
[22] MIAC v SZQRB (2013) 210 FCR 505; MZYXS v MIAC [2013] FMCA 13.
[23] Chan v MIEA (1989) 169 CLR 379; MIEA v Guo (1997) 191 CLR 559.
The Tribunal notes that the test under s 36(2)(aa) is a forward-looking one of reasonable foreseeability and the act or omission (from which the relevant harm arises, i.e. pain, suffering and/or humiliation) must take place, or continue to take place, in the future.[24]
[24] BVT20 v MICMSMA (2020) 283 FCR 97 at [86]; SZTQP v MIBP (2015) 232 FCR 452.
Considering the applicant’s claims individually and cumulatively, for the reasons set out above, that is, on the basis of the independent country information, the applicant’s lack of involvement in political activities in the past, present and, inferentially, in the future and his free movement between Fiji and Australia, the Tribunal is not satisfied there are substantial grounds for believing that as a necessary and foreseeable consequence of his return to Fiji, there is a real risk he would face significant harm from the current government, Bainimarama and/or his supporters or any other person or group, now or in the reasonably foreseeable future. The applicant’s claims in this regard are highly speculative and unsupported by any credible or plausibly objective evidence. It follows that the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Therefore the applicant does not meet the criteria set out in s 36(2)(aa).
Conclusion
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).
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 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 criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Mary-Ann Cooper
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.
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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.
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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.
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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.
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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.
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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.
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36     Protection visas – criteria provided for by this Act
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(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.
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