2212804 (Refugee)

2212804 (Refugee) [2023] AATA 2406 (30 June 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2212804
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Frank Russo
DATE:30 June 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 30 June 2023 at 4:35pm
CATCHWORDS
REFUGEE – protection Visa– Fiji – applicant does not have any claims for protection of his own – a member of the family unit of grandfather – challenges would not amount to serious harm – Tribunal affirmed the delegate’s decision to refuse grandfather’s application––decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5,36, 65, 411, 424, 499
Migration Regulations 1994, r 2.08, Schedule 2

CASES
MIAC v SZQRB (2013) 210 FCR 505
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 August 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who is currently [age] years old, claims to be a citizen of Fiji and applied for the visa on 7 November 2017.
The delegate refused to grant the visa on the basis that the delegate was satisfied that the applicant had not raised any claims to protection of his own, and therefore the delegate was not satisfied that there is a real chance that, if the applicant were returned to Fiji, he would be persecuted for one or more of the reasons in s.5J(1)(a) of the Act and is therefore not a refugee as defined in s.5H(1) of the Act. The delegate was also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Fiji, there is a real risk the applicant will suffer significant harm as outlined in s.36(2)(aa) of the Act.
The delegate also found that the applicant is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a Protection visa of the same class as that applied for by the applicant as provided for in s36(2)(b) or s36(2)(c) of the Act.
[Ms A] appeared before the Tribunal on 19 May 2023 to give evidence and present arguments. The applicant attended the hearing as well, although because of his age, he did not give evidence. The Tribunal also received oral evidence from [Mr B], the applicant’s grandfather, who was also the primary applicant in relation to the application for review in Tribunal file number 1816670.
The Tribunal notes that on the morning of the scheduled hearing, [Ms A] sent an email which noted that she had asked that her father, [Mr B], be called as a witness as he is the primary applicant for the application. [Ms A] claimed that she had called the Tribunal’s office numerous times to make arrangements for [Mr B] to join the hearing through a Zoom call. She asked for guidance in relation to this request and whether the Tribunal wished to reschedule the hearing to a later date. The Tribunal advised [Ms A] in writing that the hearing would go ahead as scheduled and that it had advised her in writing on 28 May 2023 that it would take evidence from [Mr B].
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 being persecuted for one or more of the five reasons set out in the Refugee definition in Fiji and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Fiji, there is a real risk that he will suffer significant harm, and also whether the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or s.36(2)(aa) of the Act and who holds a Protection visa.
The applicant provided the Tribunal with his application for review, together with a copy of the Department’s notice of the delegate’s decision. The applicant provided a response to the hearing invitation and contact information for the witness, [Mr B].
The Tribunal has also had regard to the documents on the Department file. The Tribunal also notes that it has access to the electronic Tribunal files for the following related case: the Tribunal file for the review of Tribunal Case File Number 1816670, the Tribunal’s review of the Protection visa application by [Mr B] , Ms [C], Ms [D], Ms [E] and [Mr F] , a review of the Protection visa applications of the applicant’s grandparents, mother, aunt and uncle.
At the hearing, when [Ms A] was asked whether there were any other documents which the applicant wished for the Tribunal to consider, she noted the documents which had been provided in support of the Protection visa application made by her father, [Mr B], as the primary applicant. The Tribunal noted that it had access to the documents on that file.
In reaching its decision, the Tribunal has taken into account all of the evidence before it. It has also taken into account independent country information about Fiji.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity
The applicant provided to the Department a copy of his Australian birth certificate. The applicant provided the Tribunal with a copy of his Fijian passport and the Fijian passport of his mother, Ms [D]. On the basis of this information, and without any information to the contrary, the Tribunal accepts that the applicant is who he claims to be and that he is a national of Fiji, which is also his receiving country.
The applicant’s mother claimed at the hearing that the applicant did not have a right to enter and reside in any third country. On the basis of the information before the Tribunal, I accept this claim and find that the applicant does not have a right to enter and reside in any third country.
Claims
Claims made with visa application and invitation to attend a Departmental interview
The delegate’s reasons for decision note that the applicant is the child of [Ms D], who was refused a Protection visa by a delegate of the Minister on 16 May 2018. The applicant is deemed under Regulation 2.08 of the Migration Regulations 1994 (Cth) to have made a Protection visa application. The Department was notified of the applicant’s birth on 12 January 2022 and the Department then notified the applicant on 31 January 2022 that he had lodged a valid Protection visa application.
The delegate’s decision indicates that the Department invited the applicant to attend an interview on 3 March 2022. The applicant’s grandfather, [Mr B] , who was the primary applicant in the applicant’s mother’s Protection visa application) was also invited to attend the interview as the applicant. The delegate’s decision indicates that the interview was postponed several times. They did not attend an interview prior to the delegate making their decision.
On 21 June 2022, the Department sent an email to the applicant’s nominated email address, requesting the completion of a Form 866C (Form C – Personal details of each person included in this application).
On 18 July 2022 the applicant provided the Department with a completed Form. In response to Question 74, ‘Are you making your own claims for protection?’, the ‘No’ box has been ticked. No details of any claims for protection by the applicant are included within the form.
Delegate’s decision
After reviewing the completed Form 866C provided on behalf of the applicant, the delegate was satisfied that applicant does not have any claims for protection of his own. The delegate noted that the Protection visa application made by [Mr B] on 21 July 2017, to which the applicant’s mother, [Ms A], was a secondary applicant, had been refused by a delegate and an application for review had been made to this Tribunal.
The delegate was not satisfied that there is a real chance that, if the applicant were returned to Fiji, he would be persecuted for one or more of the reasons in s.5J(1)(a) of the Act and was therefore not satisfied that he is a refugee as defined in s.5H(1) of the Act. The delegate was also not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Fiji, there is a real risk the applicant will suffer significant harm as outlined in s.36(2)(aa) of the Act. The delegate also found that the applicant is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a Protection visa of the same class as that applied for by the applicant as provided for in s36(2)(b) or s36(2)(c) of the Act.
Evidence at the hearing regarding the preparation and contents of the application
At the hearing, [Ms A] confirmed that she had made the visa application on the applicant’s behalf, without assistance. She indicated that she is aware of the contents of the application form and that its contents are true and correct.
When asked whether she wished to make any changes to the applicant’s visa application, she stated that she wished to rectify ‘the decision’ and ensure that the applicant was added to the visa application made by her father, [Mr B], as primary applicant.
The Tribunal confirmed that it understood that the application was made by the applicant as a member of the family unit of [Mr B], who is the primary applicant in Home Affairs case file number [number]. [Ms A] confirmed that there were no changes to the applicant’s visa application.
Evidence regarding the applicant’s background
[Ms A] gave evidence that she is a citizen of Fiji and first arrived in Australia in 2011. She confirmed that she does not a citizen of any other country, nor does she have a right to enter and reside in any other country. She stated that she returned to Fiji on one occasion after arriving in Australia, which she thinks was in 2013.
[Ms A] confirmed that the applicant was born on [date] in Australia. She confirmed that he is a Fijian national and does not have a right to enter and reside in any other country. The applicant has never departed Australia.
Evidence from [Ms A] regarding the applicant’s claims for protection
The Tribunal confirmed with [Ms A] that the hearing was in respect of a review of the applicant’s Protection visa application, not her own, and the hearing was not an opportunity for her to re-open her Protection visa application or to have a second shot at applying for protection. [Ms A] confirmed that she understood this.
When asked about the applicant’s claims for protection, [Ms A] stated that the applicant is very comfortable in Australia. He was born in Australia and has no idea what life is like in Fiji. Australia is the only life that he knows. She stated that the applicant’s grandfather, [Mr B], is still ‘under threat’ in Fiji, which is why their family has claimed protection. She stated that she came to Australia at the age of [age] and she is now [age] years of age. They have no family back in Fiji. He has started school in Australia. If the applicant was to leave the comfort of Australia, he would be starting his life again from scratch.
The Tribunal noted that [Ms A] had been included as an applicant in the visa application made by her father, [Mr B], on 21 July 2017 (Home Affairs case file number [number]), to which was also been listed as an applicant. The Tribunal noted that the applicant in the current application for review was not listed in Home Affairs case file number [number]because he had not yet been born, though he is deemed under Regulation 2.08 of the Migration Regulations 1994 (Cth) to have made a Protection visa application. The Tribunal questioned whether the applicant’s Form 866C, which had been lodged with the Department on 18 July 2022, was lodged with the Department on the basis that the applicant is a member of the family unit of his grandfather, [Mr B], who is the primary applicant in [number]. [Ms A] confirmed that this was correct, and that the applicant is not claiming anything else. When questioned again whether the applicant is making any claims for protection of his own, [Ms A] stated that the applicant does not know anyone in Fiji and they have no family there, so he will be starting again if he returns to Fiji.
Adverse information put to the applicant under s.424AA of the Act regarding [Mr B]’s claims for protection
The Tribunal used the procedure under s.424AA of the Act to put to [Ms A] adverse information from the Tribunal’s decision of 20 April 2023 on the application for review of [Mr B]’s Protection visa application in Tribunal case file number 1816670, a copy of which is contained on that file. The Tribunal put to [Ms A] that the information may be the reason, or part of the reason, for the Tribunal affirming the delegate’s decision under review.
The Tribunal put to [Ms A] that on 20 April 2023 the Tribunal affirmed the delegate’s decision in [Mr B]’s application for review in Tribunal case file number 1816670 on the basis that the primary applicant in that case, and the second-named applicant (Mrs [C]) are not in Australia and therefore do not satisfy the requirements of s 36(2) of the Act and cannot be granted protection visas. The Tribunal put to the applicant that:
a.On 8 March 2023, the Tribunal sent to the applicants for 1816670 a request to provide pre-hearing information, including information about their availability to attend a hearing;
b.On 15 March the applicants provided a response by email, which indicated they wished the hearing by audio visual link as ‘they’ are in [Country 1];
c.On 27 March 2023 the Tribunal wrote to the applicants for 1816670, putting to them that the according their movement records, [Mr B] and Mrs [C] are currently outside Australia, both having departed on [date] August 2021;
d.The Tribunal gave the applicants for 1816670 until 14 April 2023 to provide comments or a response to this adverse information. No response was provided.
The Tribunal also put to the applicant that in its s.424AA letter of 27 March 2023, it advised the applicants in 1816670 that the information from [Mr B] and Mrs [C]’s movement records is also relevant to the claims for protection visas that have been made by Ms [D] [Mr F] (DOB [date]) and Ms [E] as they have not made any claims for protection of their own. Rather, the visa application form (including the additional answers provided to the Department to the Form 866) indicates that they are reliant on the claims of [Mr B] (DOB [date]), namely that he left Fiji as he was caught up in a military investigation into his Operation Team at [a company] and witnessed colleagues being threatened and physically assaulted by military personnel, and that Ms [D], [Mr F] (DOB [date]) and Ms [E]’s protection visa applications rely on them being members of the same family unit.
The Tribunal put to [Ms A] that, as it had not received a response to the s.424AA letter of 27 March 2023, it proceeded to make a decision on the papers and found that as the primary applicant and second-named applicant are not in Australia, they do not satisfy the requirements of s 36(2) and cannot be granted protection visas. In addition, the Tribunal found that the third, fourth and fifth-named applicants had not made any claims of their own to being persons in respect of whom Australia has protection obligations under s.36(2)(a) of the Act, nor any claims that they there is a real risk that they will face significant harm as outlined in s.36(2)(aa) of the Act, and as the primary applicant did not satisfy s.36(2) on the basis that he is not in Australia, the Tribunal found that the third, fourth and fifth-named applicants did not satisfy s.36(2) of the Act on the basis of being members of the same family unit as a person who satisfies s.36(2)(a) or s.36(2)(aa) and who holds a protection visa.
[Ms A] confirmed that she understood the relevance of the information and the consequences of the Tribunal relying on the information. The Tribunal invited [Ms A] to comment or respond to the information and informed her that she could seek additional time to comment or respond to the information if needed. [Ms A] chose to respond to the information at the hearing. The applicant responded that she was not aware of the decision that the Tribunal made in her Protection visa application as all information provided by the legal representative for that claim goes to her parents. She stated that her parents have always told their children not to worry and have left them in the dark as to what was happening. [Ms A] asked the Tribunal whether the third, fourth and fifth-named applicants to Tribunal case file number 1816670 could make their own claims. The Tribunal informed [Ms A] that it had no jurisdiction to now hear any claims by the third, fourth and fifth-named applicants to that application, as the Tribunal had already made its decision in relation to the delegate’s decision on 20 April 2023. The Tribunal informed [Ms A] that she would need to seek legal advice or contact the Department in relation to her visa status and options. [Ms A] thanked the Tribunal and indicated she had no further comments or response in relation to the information from the Tribunal’s decision in Tribunal case file number 1816670.
Evidence of Mr [Mr B]

[Mr B] gave evidence by telephone from [Country 1]. [Mr B] told the Tribunal that he was aware of the Tribunal’s decision of 20 April 2023 in relation to his application for review (Tribunal case file number 1816670). [Mr B] confirmed that he understood that the Tribunal had made a decision in relation to his application for review and his evidence was not an opportunity for him to re-open his case. He confirmed that he understood that he could not be granted a Protection visa as he was not in Australia at the time of the Tribunal’s decision in his application for review.
In terms of any harm or persecution which the applicant would experience upon return to Fiji, [Mr B] stated that the applicant is his grandson and was born in Australia. He stated that the Protection visa application was all about himself (that is, [Mr B]), as it related to military action which occurred in Fiji in 2009. He again confirmed that any information which has been submitted in relation to protection claims, relates to himself. He asked, however, that the applicant be granted a right to stay in Australia as he was born in Sydney and is receiving his education in Australia. The Tribunal explained the requirements for refugee status and for complementary protection to [Mr B] and put to him that, on the evidence he had provided, the applicant does not appear to have any claims of his own, and any claims regarding a right to stay in Australia on the basis of being born here and commencing his education here, would not be sufficient to meet the legal requirements for the grant of a Protection visa. The Tribunal put to [Mr B] that there was no evidence before it that the applicant would face any risk or chance of harm upon return to Fiji. [Mr B] indicated that the Tribunal may benefit from hearing the whole story of what happened to him when he was in Fiji in 2009, as it may be relevant to the applicant. The Tribunal took evidence from [Mr B] of these events.
[Mr B] gave evidence that in 2009 he was working as an [occupation] in a [mill] in Fiji. [Details deleted]. He stated that there was another [colleague] who was told that if the maintenance of the mill was not completed prior to 2009, they would be taken to a military camp. They were told that this warning had been given by the Prime Minister, Frank Bainimarama.
[Mr B] stated that on 14 June 2009 he was asked whether the mill was ready to be operated. He responded that it was, even though it was not ready. He stated that he and the chief engineer made submissions for an extension of time to perform maintenance on the mill. He stated that after the authorities left the mill, he shut it down and they continued the maintenance work on the mill. He told the Tribunal that the Prime Minister mentioned his name, as well as that of the chief engineer, and told his ‘group’ to get them both. He stated that the chief engineer was taken to the military camp. [Mr B] stated that on his way home, the military also got a hold of him. He was punched and made to run around a field. He was told that the Prime Minister and [a specified Minister] were angry because he and the chief engineer had lied to them. He was asked who their leader was, to which he responded it was Frank Bainimarama. He told the Tribunal that he was released by the military that same day and he then returned home. He stated that after this he applied for a [temporary] via to Australia, which was granted. He departed Fiji for Australia on [date] May 2011.
The Tribunal questioned [Mr B] regarding what happened between June 2009 to May 2011, a period of almost two years in which he remained in Fiji. [Ms A] stated that the military patrolled the mill where he worked, and he was told to run and do 30 push-ups while the other workers watched. When asked when this incident occurred, he stated it was in 2008 or 2009. When asked whether any other incidents occurred after the incident on 14 June 2009, he stated that at the end of [a] season, he was transferred to work at another mill. He made enquiries about his transfer as his wife was unable to go to the place where he was to be transferred, but he was told he could not do anything about it as it was a military decision. He stated that he spent approximately 18 months to two years working in a [mill], and from there he applied for the [temporary] visa.
[Mr B] stated that a further incident occurred in 2018, while Frank Bainimarama was touring in Sydney. He stated that at the time he was working as an [occupation]. He stated that a barricade tape had been put up to separate Mr Bainimarama from others, however when he saw [Mr B] he recognised him and called out ‘[name]’ and crossed the barricade tape to confront him. He claimed that Mr Bainimarama asked him where he had gone and stated that the upgrade of the [mill] was only half done when he left Fiji. He claimed that Mr Bainimarama said to him that they had been looking for him and asked why the maintenance of the [mill] was not completed. [Ms A] told the Tribunal that he explained to Mr Bainimarama that he went to work at another [mill]. When asked whether Mr Bainimarama said anything else to him, [Mr B] said that he didn’t say anything as Mr Bainimarama knew that it was on his direction that [Mr B] was taken to the military camp. [Mr B] told the Tribunal that he has photographs of this encounter, which he gave to his legal representative. When questioned whether Mr Bainimarama had threatened or harmed him on this occasion, [Mr B] stated no, that Mr Bainimarama had asked him if he was going to return to Fiji, to which he indicated that he would not because he felt threatened there. [Mr B] stated that he felt threatened because Mr Bainimarama said they had been searching for him. He stated that he used the [temporary] visa as a way out of Fiji.
The Tribunal put to [Mr B] that the delay in leaving Fiji of 18 months to 2 years, may indicate he did not have a genuine fear of remaining in Fiji. [Mr B] responded that the military in Fiji had taken over [mills] in the country, and that in that two-year period he was transferred to another mill, and he was still receiving threats. He stated that they had no power and had to do things secretly. He stated that after applying for the [temporary] visa, he applied for permanent residency in Australia, but was unsuccessful.
[Mr B] stated that his wife was also threatened on the day they left Fiji, and his children also saw her being followed by the police. When asked the reasons why this happened, he stated that she had worked for [a government department] and had lied to the military about whether [Mr B] was in the village. The Tribunal put to [Mr B], whether there were any reasons why the applicant, who is his grandson, would experience harm upon return to Fiji, to which he responded that he did not think so.
The Tribunal also put to [Mr B] that in December 2022 there was a change in government in Fiji, with Mr Bainimarama ceasing to be Prime Minister and being succeded by Sitiveni Rabuka. The Tribunal put to [Mr B] that even if it were to accept all of his claims regarding the events in 2009 and his encounter with Mr Bainimarama in Australia in 2018, it would make it far less likely that he or the applicant would be harmed on the basis of these events given the change in government.[1] [Mr B] responded that some of the military may still be loyal to Mr Bainimarama. When questioned again about the any basis on which the applicant would be harmed upon return to Fiji, he stated that applicant could be harmed if people find out the applicant is his grandson. He stated that he is aware there is a new government in Fiji, however there could be people still loyal to the former government.
Country information
[1] ‘Sitiveni ‘Rambo’ Rabuka confirmed as Fiji’s new prime minister’, Al Jazeera, 24 December 2022.
The Tribunal discussed with [Ms A] information from the most recent DFAT country information report for Fiji,[2] including information in the report regarding the security situation, political opinion, conditions for returnees and the police and military. The Tribunal noted that the DFAT report indicates that Fiji is generally stable and secure, with the 2018 elections carried out in an orderly manner and free from violence.[3] The report contains the following relevant information regarding the conditions of returnees:
[2] DFAT Country Information Report, Fiji, 20 May 2022.
[3] DFAT Country Information Report, Fiji, 20 May 2022, para 2.34.
Conditions of returnees
5.28 DFAT is not aware of any official or societal discrimination against failed asylum seekers. Many asylum seekers begin their journey by responding to advertisements that promise a job and a Medicare card in Australia. These advertisements are scams with the organisers later making asylum claims on behalf of applicants that the applicant may not be aware of at the time they sign up. Emigration and return to Fiji are common in Fijian society. Many Fijians have cultural and family links to Australia, and a return would be unlikely to be seen as unusual or attract attention from authorities.
In relation to political opinion, the Fijian Constitution guarantees freedom of speech, expression, assembly and association. However, each of these rights is subject to broad caveats and can be limited by laws relating to national security, public safety, public order, public morality, public health and the orderly conduct of elections.[4] 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’.[5] DFAT is aware of allegations of police harassing members of opposition parties, however, the harassment and events described within the report have been directed at high-profile people within the opposition, and rank and file and low-profile opposition party members would be much less likely to experience interference.[6] While those involved or perceived to be involved in opposition parties who facilitate high-profile criticism may be questioned by the police, DFAT understands that this is not a widespread problem affecting low-profile party members.[7]
[4] DFAT Country Information Report, Fiji, 20 May 2022, para 3.25.
[5] DFAT Country Information Report, Fiji, 20 May 2022, para 3.32.
[6] DFAT Country Information Report, Fiji, 20 May 2022, para 3.38.
[7] DFAT Country Information Report, Fiji, 20 May 2022, para 3.38.
DFAT indicates that The Republic of Fiji Military Forces (RFMF) play an influential role in Fijian society and have a visible presence. DFAT indicates that whilst the military is an active and visible presence in Fiji, they are unlikely to hinder the day-to-day activities of most Fijians.[8] It indicates that whilst the various coups d’état are in the living memory of many Fijians and this contributes to fear and suspicion of the army in some quarters, DFAT assesses that these fears are not factors in the day-to-day lives of most Fijians.[9] Further, many Fijians hold the RFMF in high esteem because of their disaster relief efforts and strong traditions of service within families. The Fiji Police Force (FPF) is a national police force that covers the whole country.[10] The US Department of State Overseas Security Advisory Service 2020 Crime and Safety Report assesses Fiji police as ‘professional’ and notes recent improvements in training and accountability.[11] While police corruption is reported, DFAT understands that it is not widespread.[12] There are some allegations of corruption and DFAT is aware of pockets of corruption that have later been exposed and investigated. DFAT assesses that overall, the Fiji Police Force has the capacity to protect individuals from societal harassment, discrimination, and violence, and police are usually effective in carrying out their role in day-to-day crime detection, investigation and prevention.[13]
[8] DFAT Country Information Report, Fiji, 20 May 2022, para 5.3.
[9] DFAT Country Information Report, Fiji, 20 May 2022, para 5.3.
[10] DFAT Country Information Report, Fiji, 20 May 2022, para 5.6.
[11] DFAT Country Information Report, Fiji, 20 May 2022, para 5.6.
[12] DFAT Country Information Report, Fiji, 20 May 2022, para 5.8.
[13] DFAT Country Information Report, Fiji, 20 May 2022, para 5.10.
[Ms A] stated that she understood this information, but despite it, she believes that returning back to Fiji would be a challenge for her son. She stated it would be a new world for him as everything he knows is in Australia. He would have to start again in Fiji.
Refugee criterion
While the Tribunal accepts that the applicant prefers to remain in Australia, the Tribunal does not accept on the evidence before it that he faces a real chance of serious harm, or of any harm, upon return to Fiji for any reason. As noted already, the applicant was deemed under Regulation 2.08 of the Migration Regulations 1994 (Cth) to have made a Protection visa application. On 18 July 2022 the applicant provided the Department with a completed Form, in which he stated that he was not making any of his own claims for protection. I find that the applicant did not make any claims for protection of his own in his visa application. Rather, the applicant’s Protection visa application was made on the basis of him being a member of the family unit of [Mr B], his grandfather, who is the only applicant in Tribunal case file number 1816670 who made his own claims for protection.
At the hearing, [Ms A] made various claims that the applicant would find it challenging to return to Fiji because he was born in Australia, has started school in Australia, he knows no-one in Fiji and everything he knows is in Australia. Firstly, I make no adverse findings regarding the applicant’s failure to make these claims prior to the delegate’s decision as the applicant and [Ms A] did not attend an interview with the Department prior to the delegate making their decision. Had they had the opportunity to attend an interview, these claims may have been made on behalf of the applicant. In addition, I note the applicant is [age] years old and is therefore reliant on the submissions made on his behalf by his mother.
While the Tribunal accepts that the applicant may prefer to remain in Australia and that he may experience some challenges in returning to Fiji, such as adjusting to a new school environment, it does not accept that such challenges would amount to serious harm. There is nothing in the country information to suggest that the challenges which the applicant would face as a [age]-year-old returning to Fiji would amount to serious harm. Rather, the country information indicates that emigration and return to Fiji are common in Fijian society, and that many Fijians have cultural and family links to Australia. I note that the Tribunal also affirmed the delegate’s decision to refuse [Ms A]’s application for a Proetction visa, and therefore consider the applicant would not be returning to Fiji alone as a [age]-year-old, but would return with his mother, who would provide him with support in adjusting to Fijian society.
While I am prepared to accept the claims which the applicant’s grandfather, [Mr B], made regarding the events in 2009, I do not accept that these would give rise to the applicant ([Mr B]’s grandson) facing a real chance of serious harm, or of any harm, upon return to Fiji. [Mr B]’s claims regarding the events in 2009 were generally consistent with those included within the statement attached to his Protection visa application, and whilst the Tribunal did not question his claims in detail, his claims were generally presented in a convincing manner. I do not however accept that the applicant, who is [Mr B]’s grandson, would be implicated in any way as a result of events which occurred to [Mr B] in 2009 or that these events were of such a scale that members of [Mr B]’s family would be persecuted approximately 14 years later. I note that the applicant has a different surname to that of his grandfather and I find the claims of [Ms A] that someone may wish to harm the applicant on the basis of him being [Mr B]’s grandson to be based on speculation, rather than having any well-founded basis.
I also find that [Mr B] continued to live in Fiji and work for the same organisation for a further two years prior to leaving for Australia with a [temporary] visa. I find that [Mr B]’s evidence regarding the harassment and threats he received after the events of June 2009 was vague and does not support his claim that he would face a real chance of serious harm upon return to Fiji. [Mr B] continued to be employed by the Fijian government in a different [mill] and there is no convincing evidence of any ongoing threats or harm to him while he continued this work. I also find that his delay in departing from Fiji does not support his claim that he feared remaining in Fiji at the time. While the country information indicates that Fiji has a turbulent recent history of coups, there is nothing to indicate that [Mr B] was involved in any of the coups. The country information indicates that Fijian society today is no longer characterised by the turbulence of the past, and that even persons who were involved in historical coups such as that in 2006, are unlikely to experience official or societal discrimination.[14] In addition, I note the change in government in Fiji in December 2022 and find it very unlikely that Mr [B] would experience any harassment, threats or harm on the basis of the events in 2009 if he were to return to Fiji, particularly given Mr Bainimarama is no longer Prime Minister of Fiji. I find it even less likely that the applicant, who is a [age]-year-old child born in Australia, would face any threats, harassment or harm on this basis.
[14] DFAT Country Information Report, Fiji, 20 May 2022, para 3.41.
I am prepared to accept [Mr B]’s evidence that while he was working [in] 2018, he encountered Mr Bainimarama during his trip to Sydney that year. I also accept that he had a brief conversation with Mr Bainimarama. I do not however accept that he was threatened or harmed in any way by Mr Bainimarama during this conversation. I also do not accept that such a conversation supports his claim that he or any member of his family, including the applicant, would be harmed on return to Fiji, particularly given the change in government in December 2022. I do not accept that there are persons in Fiji who would wish to harm the applicant on the basis that he is the grandchild of [Mr B], nor that such persons in positions of authority may act in such a way because they remain loyal to Mr Bainimarama rather than to the new Fijian government. I find the applicant’s claims in this regard to be based on speculation and to not be supported by country information, in particular the information which indicates that while the military continues to be an active and visible presence in Fiji, they are unlikely to hinder the day-to-day activities of most Fijians.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, I find that there is no real chance that the applicant will suffer serious harm amounting to persecution from anyone for any reason, if he returned to Indonesia, now or in the reasonably foreseeable future.
Does Australia have protection obligations to the applicant under the complementary protection criterion?
As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criterion for the grant of a protection visa pursuant to the complementary protection criterion.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.

For the same reasons as set out above, I do not accept that the applicant will suffer any harm in Fiji for any of the stated reasons.
The Tribunal is not satisfied that there is a real risk that the applicant will be arbitrarily deprived of his life, or that the death penalty will be carried out on him, or that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment if he returns to [Fiji] now or in the reasonably foreseeable future. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that he will suffer significant harm as defined in s.36(2A) and s.5(1) of the Act. The Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.
Is the applicant a member of the same family unit as a person who satisfies the protection obligations under s.36(2)(a) or (aa)?
The Tribunal has concluded the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(a) or 36(2)(aa). As noted above, the applicant’s visa application was originally made on the basis that he is a member of the family unit of his grandfather, [Mr B]. On 20 April 2023, the Tribunal found that [Mr B] and each of the applicants in Tribunal case file number 1816670 are not persons in respect of whom Australia has protection obligations under s.36(2)(a) or 36(2)(aa). There is no evidence that any other members of the applicant’s family unit satisfy the requirements in s.36(2)(a) or 36(2)(aa) of the Act.
The Tribunal finds that the applicant does not satisfy s.36(2) on the basis of being a family 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) of the Act.
CONCLUSIONS
For the reasons given above, the Tribunal IS NOT satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
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).
The applicant does not satisfy s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Frank Russo
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.
…

[2023] AATA 2406

30 June 2023

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