2215059 (Refugee)
[2025] ARTA 1489
•27 May 2025
2215059 (REFUGEE) [2025] ARTA 1489 (27 MAY 2025)
DECISION AND
REASONS FOR DECISION
Representative: Mr Charles Yuen
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2215070
2215059
Tribunal:General Member C Stokes
Date:27 May 2025
Place:Adelaide
Decision:The Tribunal affirms the decisions under review.
Statement made on 27 May 2025 at 3:35pm
CATCHWORDS
REFUGEE – protection visa – Fiji – race – indigenous Fijian – imputed political opinion – former public servant – employment – fear of prosecution – fear of detention – child maintenance litigation – repaying a bond – economic conditions – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2CASES
MIAC v SZQRB (2013) 210 FCR 505
MIMA v Respondent S152/2003 (2004) 222 CLR 1Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
These are applications for review of two decisions made by delegates of the then Minister for Home Affairs on 29 September 2022 and 4 October 2022 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants are nationals of Fiji, family members and have inter-related claims. The applicant in 2215070 (first applicant) is the husband and father of the applicants in 2215059. He applied for the visa on 28 October 2021. The applicants in 2215059 (second applicant and her 3 children) applied for the visas on 4 November 2021. Delegates refused to grant the visas on the basis that the applicants did not meet the criteria for the grant of a protection visa.
On 13 October 2022, the applicants applied to the then Administrative Appeals Tribunal (AAT) for review of each decision. On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). This decision and statement of reasons is a review of the delegates’ decisions by the Tribunal.
The first and second applicants appeared before the Tribunal on 8 May 2025 by video conference to give evidence and present arguments in a combined hearing. The applicants were represented in relation to the review.
The issue in this case is whether one or more of the applicants is 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.
For the following reasons, I have concluded that the decisions under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
APPLICANTS’ BACKGROUNDS AND VISA HISTORIES
The first applicant is [an age]-year old male from [Town 1] Fiji who is a practising Christian and father of [number] children. His [number] eldest children live in Fiji with his ex-wife. His 3 youngest children (who are applicants in 2215059) are from his second marriage, were born in Fiji and now live with the first and second applicants in Australia.
The first applicant was employed by the Fiji [Authority 1] when he was awarded a scholarship by [another agency]. He travelled to Australia to undertake a [Course 1] program at [University 1] from January 2020 to December 2021.
The first applicant had previously travelled to Australia on a number of occasions in 2014 and 2015 to transit to other countries for work as well as in 2016 and in 2018 to undertake short courses which related to his work.
The second applicant and her children had never been to Australia before arriving in 2020 to accompany the first applicant while he studied.
Claims and evidence before the Department
The first applicant applied for the protection visa on 28 October 2021, shortly before completing his [Level 1] program claiming:
a.he had been the victim of ill treatment and abuse in the workplace, been deprived of promotion opportunities and the target of senior people who held grudges against him, made allegations about him, told him they could stop him travelling to Australia to study, subjected him to investigations, and tried to ‘suppress’ him
b.his ex-wife (who has political connections in Fiji) initiated litigation for matters related to child maintenance, which was ‘encouraged’ by these senior people without court orders and was orchestrated to push him out of the [Authority 1] for good. He can foresee that he will face prosecution and imprisonment upon return to Fiji if his ex-wife and the [Authority 1] ‘continue to work together’
c.his current wife, the second applicant, was summarily dismissed from her job at the [Authority 2] due to their relationship. He also resigned from his job at the [Authority 2] due to a policy of no relationships in the workplace
d.the second applicant was issued a separate visa to him for Australia and she was deliberately deprived of rights and benefits and unable to work for a number of months after her arrival
e.he did not seek assistance in Fiji for these matters because he understands the negative implications that he and his family would face if he made a move, there is no ombudsman, the unions are ‘powerless’ and there is a ‘lack of redress’ within the government
f.if returned to Fiji, the first applicant fears things will become worse than before and that his family will have a ‘hard life’, be ‘deprived of opportunities’, and ‘feel humiliated’.
The second applicant applied for the protection visa for her and her children on 4 November 2021, claiming:
a.she experienced harm in the form of threats and humiliation relating to the first applicant’s domestic case with his ex-wife and that matters were illegally and unethically taken outside of the court system
b.she was summarily dismissed from her job at the [Authority 2] due her relationship with the first applicant
c.her children were also ‘dragged into this,’ by cyberbullying, character assassination, verbal and physical threats
d.her reputation has been damaged and the family had been portrayed badly in the first applicant’s workplace because of the domestic case
e.just before she left to come to Australia, officials from the [Authority 1] came to her home and asked for official documents relating to his work and she told them she didn’t know anything about his work
f.she was unable to work when she initially arrived in Australia due to an error with her visa status which took until December 2021 to rectify
g.she did not seek help within Fiji because she understands the repercussions and she did not move to another part of the country as relocating in Fiji would make the situation worse as she does not trust the system and the people around it because of what she has been through
h.she believes that things will be worse than before as she has been warned by her husband’s former wife and relatives through texts ‘that they will for my return’
i.she is already without a job as her contract lapsed and could be further deprived of her future and that of her children’s future
j.on return, there is high probability of being deprived of opportunities and facing further humiliation and threats by the ex-wife, her relatives and government workplace
k.she does not think that the authorities back in Fiji and can protect her in Fiji and states that ‘Relocation might not be a workable solution. I need my family to enjoy life’.
With the visa applications the applicants provided a number of supporting documents including: identity documents; documents relating to the first applicant’s study and leave arrangements; documents relating to the second applicant’s leave arrangements; documents relating to child maintenance proceedings brought by the first applicant’s ex-wife; photographs of the applicants in Australia; documents relating to the applicants’ visas and work rights; and other documents regarding the first and second applicant’s work and living arrangements in Australia.
After lodging the applications, the first applicant provided further supporting documents including: documents relating to the first and second applicant’s employment at [Agency 1]; documents relating to his resignation from the [Authority 1] and the repayment of a bond; emails exchanged between the first applicant and the [Authority 1] regarding the maintenance proceedings and the release of his personal information to his ex-wife; a summons for the first applicant to appear in [Court 1] [in] April 2022 in relation to arrears in maintenance; communications between the first applicant and [court]; and a certificate of completion of the first applicant’s [Level 1] degree dated [in] April 2025.
On 18 July 2022, the first applicant attended an interview with the delegate via video conference and I have listened to the audio recording. As the delegate noted in the visa refusal decision, the first applicant raised the following additional claims during the interview:
a.he has been unfairly treated by the [Authority 1] in that he must repay a bond related to his scholarship since his resignation, while other scholarship holders have not had to repay a bond after resigning
b.he was the subject of a personal vendetta by his [Authority 1] supervisor at the time, [Supervisor A].
On 28 July 2022, the first applicant provided the following documents to the delegate following the interview:
a.a statutory declaration signed by him and dated 28 July 2022 where he elaborated on his claims and made a new claim that a ‘bench warrant’ had been issued for the first applicant’s arrest over ‘non-payment of maintenance’ to his ex-wife. He claimed to fear he will have no access to an independent legal judiciary if he is arrested or discriminated against in his efforts to seek employment in the government or any statutory body. He believes this as the courts are corrupt and not independent of the executive government and because of [Supervisor A’s] influence
b.country information reports namely: 2020 Country Report on Human Rights Practices: Fiji, Bureau of Democracy, Human Rights and Labor, Bureau of East Asian and Pacific Affairs, Amnesty International Report 2017/18: Fiji, Amnesty International Report 2021/22: Fiji and Amnesty International Public Statement 12 March 2020
c.invoices for legal fees incurred in relation to the maintenance proceedings and the protection visa application
d.letter from [University 1] confirming he completed all the academic requirements for this [Level 1] degree dated [in] January 2022, including his academic transcript.
On 7 September 2022, the first applicant also provided email correspondence with his lawyers in Fiji in relation to the maintenance proceedings.
On 22 September 2022, the first applicant provided English translations of extracts of emails from the ex-wife, an extract of a [social media] message said to be from the ex-wife’s sister to the second applicant containing abuse and a screenshot of a conversation on [a messaging service] with an [official] of [Authority 3].
Delegate’s decisions
The delegate was not satisfied that the first applicant’s claims for protection were credible and was not satisfied there is a real chance that, if he was returned to Fiji, he would be persecuted. Therefore, the delegate was not satisfied he is a person in respect of whom Australia has protection obligations under ss 36(2)(a) or 36(2)(aa) of the Act.
The delegate was not satisfied that the second applicant has a well-founded fear of persecution as she does not fear being persecuted for reasons of of race, religion, nationality, membership of a particular social group or political opinion as required by s 5J(1)(a) of the Act. Therefore, the delegate was not satisfied she is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
After considering the country information, the delegate was satisfied that the second applicant would be able to obtain effective state protection from the ex-wife on return to Fiji if required. The delegate was also not satisfied that the second applicant faces a real risk of significant harm on account of the economic hardship/situation in Fiji. The delegate was not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Fiji, there is a real risk the second applicant will suffer significant harm as defined in s 36(2A) of the Act. Therefore, the delegate was not satisfied that the second applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
As the children had not raised their own claims for protection, the delegate also found that they do not satisfy s 36(2)(a) or s 36(2)(aa) of the Act.
Evidence before the Tribunal
The applicants provided the Tribunal with a copy of the delegates’ decisions with the applications for review. At the hearing the applicants provided evidence and further details about their background and claims.
Following the hearing the applicants’ representative provided further submissions, a statutory declaration of the first applicant and a bundle of summaries of various country information. The submissions and statutory declaration explain that:
a.the second applicant’s main evidence is that she was wrongfully dismissed from her employment with [Authority 2] in Fiji and was denied due process for review of the decision according to law or departmental policy. She fears discrimination in employment should she return to Fiji and fears actual threats made to her by her husband’s ex-wife. Everything she has experienced in Fiji was said to be directly the result of being his wife as well as being an indigenous Fijian (iTaukei)
b.the first applicant did not obtain tertiary qualifications due to lack of family financial support, which is common for indigenous Fijians. Through hard work he had a career in the civil service and was given the opportunity to study in Australia on a scholarship, which is rare for an iTaukei
c.while the first applicant does not hold himself out to be the member of any political party or affiliated with any political organisation and does not overtly hold any political views or present himself as a critic of any government policy, he however strongly believes from events that have happened to him in his applications for employment in high level positions commensurate with his past work experience that he has been sidelined, delayed, overlooked and even marginalised by people in power. He was engaged at a certain classification when he started in the civil service in 2005, and while he was given a more senior position with [Authority 2] in 2010, he was on a salary of $28,000 per year. When he resigned due to a conflict of interest, he rejoined the government through a proper recruitment process but was put back to his previous classification level. He claimed to have been paid around $29,000 per year while he was in Australia on leave with pay. He further explained that he received no job evaluation reviews and only recently a review has been undertaken to increase public service salaries, however the larger increases have been for the agency heads, secretaries and deputies rather than those in lower classifications like him
d.the first applicant claimed his jobs involved overwhelming load of tasks which increased year by year with no proper support or compensation and he single-handedly delivered new projects for the [Authority 1] with minimum or no guidance from the top. His job at the [Authority 1] was demanding and most of the time he was not a home with his family and had little time for rest. Despite having interviews for promotions, he was not given any more senior positions. He claims at least 5 other people less qualified (1 or 2 levels below him) were promoted ahead of him and became his superior who then made it impossible to climb higher
e.the first applicant claims that people with influence within government have misused their access to information that is meant to be privileged and private to dig up dirt of a personal nature to prevent him from applying for higher levels of employment and from getting the scholarship to study in Australia. They have more specifically used the divorce with his ex-wife to instigate unnecessary security checks on him to delay promotions and getting the scholarship. In the first applicant’s statutory declaration he explained that after he was offered the job with the [Authority 1], he was delayed starting for a month due to the letter from his ex-wife to the former [Official 1] and [Supervisor A] and others pursuing an investigation update on his cases. [Supervisor A] also told him she would stop him from going to Australia. The first applicant also gave other examples of how he was victimised by his former employer such as the asking of his wife for any files he may have kept a home knowing it could not be done, bombarding him with unnecessary things and obtaining his address in Australia which was private and without reason
f.the first applicant claimed that the subject of the payment of his bond was not raised with him through the usual way of communicating decisions (such as by email) but instead they used his [Relative A] who was a guarantor of his study ([relative’s name]) to raise it with him and then a second message came from a former colleague. The first applicant claimed that prompted him to contact the director of [the relevant section] and he confirmed the [agency] are still pursuing [Authority 3] for his return, of which he confirmed the answer from [Authority 3] was to ‘await Immigration processes’. The first applicant also refers to the careless calculation of how much of the bond money was to be repaid by him and also that he is aware of at least 2 other people have had their bond money waived or heavily reduced. The first applicant had to engage a private lawyer to negotiate with his employers to prove that the amount of bond money due was wrongly calculated and to reach an agreement for a repayment plan
g.the first applicant claims he will always be of interest to the government because of his high-level government connections and exposure to sensitive information in his past roles. China’s influence means that the current regime will stay in power irrespective of any human-right infringements
h.the first and second applicants would on return only seek employment in the private sector or government departments where they can work and live below their qualifications and work experience in order to stay below the radar of those in power, which would involve behaviour modification in order to avoid harm
i.it is the combination of all of the above that has prompted the applicants to seek protection from the Australian government under its convention obligations. While he does not claim that he will be arrested, imprisoned or tortured, he believes that he will be prevented from applying for and given a fair and equal opportunity to recover the high-level employment in the civil service to which he should be entitled given his past work experience and his further post-graduate qualification from Australia. The reason for the discrimination is most likely due to his indigenous race, the fact he held a high position with access to politically sensitive information and his rise is perceived as a threat to people in power or because of personal jealousy or spite from such persons.
The country information summaries addressed: the current political landscape in Fiji, human rights issues in Fiji, the criticism of article 131 of Fiji’s 2013 Constitution; the ethnic composition of the Fiji’s political, judicial, military, and law enforcement leadership; disparities in higher and postgraduate education attainment in Fiji; details about available scholarship programs for Fijian citizens; and China’s engagement with Fiji.
Criteria for 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.
REASONS AND FINDINGS
Country of reference
The applicants travelled to Australia on apparently genuine Fijian passports, copies of which were provided to the Department and Tribunal. They have consistently stated that they are citizens of Fiji and the Tribunal finds that they are all Fijian citizens. The Tribunal has assessed the applicants’ claims against Fiji as the country of nationality and the receiving country.
First applicant’s claims in relation to his workplace
I accept that the first applicant had difficulties in his workplace to some extent, in that his start date was initially delayed due to a (longer than usual) security screening process, the job was very stressful, and he was not promoted or otherwise recognised for the level that he was performing at. I also accept that he remained at the same classification level for many years, did not have his salary reviewed and was paid around $28,000 per year. However, the first applicant was ultimately able to start his position and have a long career at the [Authority 1] where he worked on significant projects and given developmental opportunities, including regular international travel for significant tours and further training. Given his lack of tertiary qualifications at the time and the small size of the team he was working in, it is not inconceivable that he would remain at the same mid-level classification. While I accept the first applicant had some sort of personality clash with [Supervisor A] (who has now retired) and that she tried to prevent him from coming to Australia to study, he was not ultimately prevented from coming to Australia to gain a [Level 1] degree. Further, I have considered the screenshots of the first applicant’s messages with the [official] of [Authority 3] and the correspondence with the [Authority 1] about his resignation and the return of his bond. That correspondence and the first applicant’s evidence does not, in my view, demonstrate he was or continues to be the target of discrimination or harassment. I do not accept he was the target of discrimination or harassment or that he was marginalised or victimised by senior officials in the [Authority 1].
I accept that upon resigning, the first applicant was required to repay the bond for his failure to return to Fiji after completing his study as agreed. The documentary evidence shows the [Authority 1] approved the first applicant’s release on study leave with pay for a period of 2 years on the understanding that he was to complete the course and return to serve the Fijian government for a period of 3 years. If he did not do so then he agreed he would be required to repay a bond of a fixed sum, and that he had a guarantor in relation to this bond. Given the first applicant did not return to serve the Fijian government as agreed, it was open for the government to make inquiries with [Authority 3] about his return, seek repayment of the bond when he did not do so and to liaise with his guarantor. While the first applicant may anecdotally have information that others in similar positions have not been required to repay all or some of their bonds, I do not accept that the first applicant has been unfairly treated or targeted by the Fijian government by seeking repayment of the bond. On the basis of the first applicant’s own evidence, he has been able to negotiate the repayment in instalments, and for a lower amount than initially sought, which suggests that he has in fact been treated fairly.
For the reasons given above I do not accept that the first applicant has faced serious harm in the past in his workplace. I also find, based on the first applicant’s oral evidence, that on return he will seek employment in private business, or a government department (other than the [Authority 1]) and given he has gained further skills and a [Level 1] qualifications in Australia that are relevant to other sectors. I also find that he will not seek to be re-employed by the [Authority 1] because he did not enjoy the work and because of the circumstances in which he resigned and did not return to Fiji to serve the government after completing his study as was anticipated. I do not accept, as was submitted, that he will seek different or lower-level work to stay under the radar of those in power such that he will be modifying his behaviour to avoid harm.
Given I have found he will not work at the [Authority 1] on return and given I have not accepted that he faced serious harm in his workplace in the past, I do not accept that there is a real chance the first applicant would face serious harm now or in the reasonably foreseeable future on return to Fiji at that workplace.
First applicant’s claim to be at risk due to his access to sensitive information
At the hearing, the first applicant claimed he was exposed to confidential and sensitive information about Fiji and senior officials which may be of interest to current and future governments, and he may be at risk of harm because of his exposure. In his post hearing materials, the first applicant claimed he will always be of interest to the government because of his high-level government connections and exposure to sensitive information in his past roles. He submitted that China’s influence means the current regime will stay in power irrespective of any human-right infringements and provided country information about the complexity of the socio-political situation in Fiji.
I accept the first applicant was exposed to some confidential and sensitive information in his former role in [Authority 1]. However, the first applicant also gave evidence that he was not trusted with certain confidential information and remained a mid-level public servant. Also, when asked about whether he had been contacted by the current government about his exposure to confidential information since his resignation, he confirmed that he had not been contacted or reminded of his obligations. In my view, he is like any other former public servant who has ongoing confidentiality obligations to the Fijian government. Based on the first applicant’s evidence and my findings about him not facing serious harm while employed by the [Authority 1], I do not accept he is of interest to the current government. Further, the country information suggests the current political situation is stable and there has been no significant political unrest or deterioration of government functions since the Rabuka government was elected in December 2022.[1] The country information provided by the applicants also indicates China’s support to Fiji will assist in maintaining political stability and legitimacy.[2] While I appreciate the socio-political climate in Fiji is complex, in light of the country information before me, I consider it is stable and there is no real chance of there being a coup in the reasonably foreseeable future such that the first applicant would be of interest to a future government due to his exposure to confidential and sensitive information.
[1] Fiji 20230621135833 - Country Information - Political Update, Department of Foreign Affairs and Trade, 2 August 2023
[2] ‘Fiji country information’ document provided by the applicants on 21 May 2025, pp 13-20
For the above reasons, I do not accept that there is a real chance he would face serious harm now or in the reasonably foreseeable future on return to Fiji at the hands of the current or a future Fijian government due to his exposure to confidential and sensitive information.
First applicant’s claims regarding his concerns about s 131(2) of Fiji’s 2013 Constitution
The first applicant expressed concerns about s 131(2) of Fiji’s 2013 Constitution which he considers provides powers to the military to interfere in domestic issues. That provision states that it is the "overall responsibility" of the Republic of Fiji Military Forces to ensure "at all times the security, defence, and well-being of Fiji and all Fijians." The first applicant expressed concerns that if the wrong people are in senior positions this power could be misused and he mistrusts the system.
In relation to his concerns about s 131(2) of Fiji’s 2013 Constitution, the country information indicates that critics have expressed concerns about the potential for misinterpretation of this constitutional provision. Some fear that the language of s 131(2) could be construed as legitimising military intervention in domestic affairs, given Fiji's history of military coups. A recent report highlighted that the perceived expansion of the military’s mandate under this section has not restored public trust, which remains undermined by past human rights abuses.[3] However, in response to these concerns, Fiji’s current government has initiated a review of the military's legal framework to modernise it and clarify the military’s role and responsibilities as outlined in the 2013 Constitution. The Minister for Defence and Veteran Affairs, Pio Tikoduadua, emphasised that this review aims to establish guidelines on how the military should conduct its role under the Constitution and to address any misinterpretations of s 131(2).[4] While a bill was introduced to amend the Constitution and did not have the required support of parliament, the country information suggests that the review is ongoing and the Fijian Cabinet is seeking the Supreme Court’s opinion on the interpretation and application of the 2013 Constitution’s amendment provisions.[5]
[3] RFMF's role in three coups a concern: Report, Fijilive, 24 October 2024
[4] Review of Legal Framework to Define Fiji Military supress, Mai Tv, 31 January 2025
[5] Fiji Cabinet Seeks Supreme Court Opinion on Constitution Amendment Rules, Mai Tv, 7 May 2025
I accept the first applicant remains concerned about the military’s potential reach and mistrusts the systems in Fiji. However, I do not accept that he is at risk of any harm due to this mistrust. I find the government is attempting to establish clear guidelines in response to such concerns. Further, the first applicant did not claim to be a member of any groups, organisations or political parties and did not claim to be politically active in any way. I do not accept he will face harm due to his political opinions or his mistrust in the systems in Fiji. I therefore do not accept there is a real chance he would face serious harm now or in the reasonably foreseeable future on return to Fiji due to his views about the Constitution.
First applicant’s claims relation to his ex-wife and maintenance proceedings
I accept the first applicant’s ex-wife commenced proceedings in relation to the payment of maintenance for his [eldest] children and he has paid maintenance over many years via a deduction from his salary from the [Authority 1]. I also accept the ex-wife and her lawyers contacted the [Authority 1] about the first applicant’s whereabouts for the purpose of serving him with an application to vary the maintenance order as well as a summons to appear in respect of arrears of maintenance. However, having reviewed that correspondence, I am not satisfied it suggests, and I do not accept, that the [Authority 1] has in any way been involved in the commencement of those proceedings or applications, or in fabricating any of the claims made in those proceedings or applications. At the hearing, the first applicant accepted there was no evidence that the arrears were due to any action by the [Authority 1] stopping the deductions of the maintenance payments from his salary. I note in the post hearing submissions it was claimed that the department omitted ‘to pay what was due to his ex-wife from his salary’. However, this is contrary to the first applicant’s oral evidence at the hearing and I do not accept that submission. I find the Fijian government has not been involved in the maintenance proceedings, save for the ex-wife and her lawyers contacting his then employer for details for service.
I have also considered the first applicant’s written claim he will be arrested and imprisoned on return in relation to the maintenance arrears application brought by his ex-wife and he will not have access to an independent legal judiciary in relation to that proceeding. At the hearing however, he explained that the arrears issue had been resolved and there was no current arrest warrant. I also note that each of his children have now attained the age of 18. The Court documents provided by the first applicant indicates they are [specified ages] years old (although the first applicant claimed at the hearing the youngest was still [under age] he also accepted that the youngest was born in [year] after he and his wife had separated, which is consistent with the birth date in the Court documents and makes him [age] not [under] age). The first applicant’s ongoing obligations therefore appear to only relate to the clearing of the arrears which is no longer in dispute. I am therefore not satisfied there is a real chance the first applicant will be arrested and imprisoned on return nor do I accept that he will face hardship in relation to any ongoing obligations in relation to the court proceedings, which are no longer in dispute.
I have also considered whether the ex-wife has political connections that she has used and will continue to use to diminish the first applicant’s professional reputation. At the hearing the first applicant was not able to articulate how the ex-wife was politically connected other than to say she had friends of friends in senior positions, including the former [Official 1’s] [Relative B]. He also gave evidence the ex-wife has never worked in government herself. While I have accepted that she wrote to the former [Official 1] and senior officials in 2012 and that she has also been in contact with his former employer about the maintenance proceedings, which may have caused some embarrassment, I do not accept she has political connections which have been or will be used to damage his reputation.
For the reasons given above, I do not accept that there is a real chance the first applicant would face serious harm now or in the reasonably foreseeable future on return to Fiji at the hands of his ex-wife or due to the maintenance proceedings brought by her.
Second applicant’s claims
I accept the second applicant may have suffered some embarrassment in relation to the first applicant’s maintenance proceedings with his ex-wife and she has received some threatening and abusive messages from her and her sister. The second applicant explained at the hearing she only received these messages which ‘badmouthed’ her and her children, and messages were not ever directly sent to her children. The second applicant also explained she last received such a message via [social media] in 2020. I accept that evidence. I also accept the ex-wife’s sister sent a message in around May 2020 to the second applicant which was offensive and threatened, ‘I will wait for you when you come back’.
I am not satisfied there is a real chance that the second applicant or her children would face harm by the ex-wife or her family if they were to return to Fiji now or in the reasonably foreseeable future. According to the applicants’ evidence, they last contacted the second applicant 5 years ago, and her husband separated from the ex-wife on seemingly amicable terms 20 years ago. The second applicant also did not claim to have been harmed or threatened to be harmed by the ex-wife and/or her family in the 8-year period between meeting the first applicant in 2012 and coming to Australia in 2020. Considering the time that has passed and in the absence of evidence of any engagement by the ex-wife and her family for the past 5 years, I am not satisfied that they are interested in the second applicant or her children, or would, continue to send abusive correspondence. In any event, while unpleasant, I find that receiving such correspondence does not constitute serious harm as per the non-exhaustive list set out in s 5J(5) of the Act, or is so oppressive that one could not be expected to tolerate it.[6] I am also not satisfied, in the circumstances, the ex-wife or her family would threaten the second applicant or her children or would act on the past threat that they were waiting for them to return. I find that there is no real chance that the second applicant or her children would face serious harm in Fiji now or in the reasonably foreseeable future at the hands of the ex-wife or her family.
[6] MIMA v Respondent S152/2003 (2004) 222 CLR 1
I accept the second applicant was asked to provide official documents relating to her husband’s work to the [Authority 1] after the first applicant had left for Australia but she was unable to assist. She did not claim to have been harmed or threatened in any way by those who visited her to make this request. I do not accept this request was malicious or threatening to the second applicant nor do I accept that she would be targeted on return because of her inability to assist.
I accept the second applicant was summarily dismissed from her job at the [Authority 2] due her relationship with the first applicant. I also accept she did not feel heard in relation to the dismissal and the review process which she sought following the termination. However, the termination was a result of a policy which was in place for all employees regarding relationships in the workplace and there was a review process. Further, the second applicant gave evidence that she was able to find work shortly after her dismissal in [other public agencies]. Her dismissal from her job at [Authority 2] therefore did not cause her harm in relation to her capacity to earn a living.
I find that the second applicant may seek to be re-employed by a government department or in a private industry on return to Fiji. The second applicant gave evidence that she would not be able to return to her former workplace, not because of any reason of her fearing harm but because the role would have been given to someone else. She indicated she would be required to wait for an advertisement and apply through the ordinary recruitment process. It was clear in her oral evidence that her concerns about working for government related to her not having a contract, because the recruitment processes take time, because she only has a diploma and due to the time she has been out of the workforce in Fiji she is not as desirable as other candidates might be - not because she thinks she will need to pursue different or lower-level work to avoid harm. Based on the second applicant’s evidence, I do not accept the submission that she will not seek employment in the government or will seek lower-level work in the government to remain under the radar of those in power and is therefore modifying her behaviour.
Finally, I accept that the second applicant was unable to work when she initially arrived in Australia due to an error with her visa status which took until December 2021 to rectify. However, based on the evidence before me I do not accept that error was the result of any malice or discriminatory conduct on the part of the Fijian government who was involved in arranging the visa.
For the reasons given above, I do not accept there is a real chance the second applicant and/or her children would face serious harm now or in the reasonably foreseeable future on return to Fiji for any of the reasons claimed.
Claims in relation to iTaukei ethnicity
Although it was not raised before the department, the applicants’ representative suggested at the hearing that the applicants have been targeted due to their iTaukei ethnicity. Further, the post hearing materials provided by the applicants claimed that both the first and second applicants faced discrimination in Fiji due to their iTaukei ethnicity.
The Fijian Constitution prohibits discrimination based on race or ethnicity and the Public Order Act was amended in 2012 to prohibit incitement of racial violence.[7] Country information indicates that, iTaukei are the majority ethnic group in Fiji and enjoy significant social, economic and political capital. In the 2022 Department of Foreign Affairs and Trade (DFAT) report on the situation in Fiji, DFAT assessed there is no official discrimination against indigenous Fijians, while there is some low-level societal discrimination that affects most Fijians (some people among both major ethnic groups perpetuate racist stereotypes against the other).[8]
[7] Constitution of the Republic of Fiji 2013 (Fiji), s 26; Public Order Act 1969 (Fiji), s 17
[8] Department of Foreign Affairs and Trade (DFAT), Country Information Report Fiji (May 2022) [3.10]
Based on the evidence provided to the Tribunal by the applicants and the country information, I find that the applicants have not been denied employment or other basic services, physically harmed or otherwise discriminated against due to their iTaukei ethnicity. While the applicants may have disagreed with how they have both been treated in their workplaces, including in relation to the second applicant’s dismissal from her work at [Authority 2] in 2021, for the reasons already given above I find they have not faced serious harm and there is no real chance they will face serious harm in the reasonably foreseeable future in Fiji due to their iTaukei ethnicity.
Economic concerns
I have considered whether the applicants have a real chance of suffering serious harm due to the economic conditions in Fiji and the first and second applicants’ employment prospects on return. The first and second applicants both claimed at the hearing that it will take time for them to obtain a job on return to Fiji and they are concerned about being able to support their family if they were to return to Fiji.
Country information indicates that Fiji is classified as an upper middle-income economy and despite the economic impacts of Tropical Cyclones Harold and Yasa in 2020, Ana in 2021 and COVID-19, it rebounded in 2022 with 11.6 per cent mostly driven by the rapid recovery of the tourism sector. The unemployment rate in 2024 in Fiji was reported to be 4.3%.[9]
[9] Fiji: Country Factsheet, International Labour Organization, 2024
I accept the first and second applicants’ may not be able to find employment in the public sector quickly on return. However, the applicants are both of working age, are well educated and have various skills and work experience both in Fiji and Australia. Further, I do not accept the first applicant’s experiences in his previous role in [Authority 1] would prevent either the first or second applicant from gaining further employment in Fiji. They also have family in Fiji, who appear to be in a position to offer support such as accommodation at least initially on return. I therefore find the applicants will have access to accommodation, and basic services on return. I also find, in light of the economic conditions in Fiji and the first and second applicants’ particular circumstances, they will be able to find employment in the reasonably foreseeable future in Fiji. I am therefore satisfied there is no real chance the applicants would suffer significant economic hardship that threatens their capacity to subsist, and/or would be denied access to basic services, where the denial threatens their capacity to subsist; and/or would be denied the capacity to earn a livelihood of any kind, where the denial threatens their capacity to subsist (as per the non-exhaustive examples of serious harm mentioned at s 5J(5)(d)-(f) of the Act), on return to Fiji.
Refugee Assessment
I have considered the applicants’ claims that I accept separately and cumulatively.
For the purposes of the refugee criterion, s 5J(5) provides some examples of serious harm. I am not satisfied that there is a real chance that the applicants would face serious harm as that term is used in s 5J(4)(b) of the Act, now or into the reasonably foreseeable future. As such, I am not satisfied the applicants are refugees or meet s 36(2)(a) of the Act.
Complementary Protection Assessment
Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), I have also considered the alternative criterion in s 36(2)(aa).
I have found the applicants do not face a real chance of serious harm in Fiji. ‘Real chance’ and ‘real risk’ have been found to equate to the same threshold.[10] For the same reasons given above, I find there is not a real risk the applicants will suffer significant harm.
[10] MIAC v SZQRB (2013) 210 FCR 505
For completeness, I find that any difficulties the first applicant faced in his workplace or life due to his employer or ex-wife did not constitute significant harm in accordance with the exhaustive definition in s 35(2A) of the Act. While some aspects of his past experiences have caused him some embarrassment, I do not accept they were cruel, inhuman or degrading and in any case they were not severe, intentionally inflicted or so extreme that it would be unreasonable.
I also find that any issues caused by the second applicant’s relationship with the first applicant, his workplace and his ex-wife in the second applicant and/or her children’s lives does not constitute significant harm in accordance with the exhaustive definition in s 35(2A) of the Act. While I have accepted the second applicant has faced some embarrassment due to the maintenance proceedings and harassment by the ex-wife, I do not accept the second applicant or her children have suffered from cruel, inhuman or degrading treatment and in any case they have not faced treatment that was severe, intentionally inflicted or so extreme that it would be unreasonable.
Finally, I have considered whether the first and second applicants’ concerns about their ability to support themselves on return will mean that they and their children will be at risk of significant harm. I accept it will be difficult initially on return while the applicants re-establish themselves and find work. However, I have found the applicants will be able to access accommodation, as well as basic services as would any other citizen in Fiji. In any case, there is nothing to suggest that any suffering faced by the applicants due their employment prospects would be as a result of an actual subjective intention to bring about the suffering by acts or omissions.
Accordingly, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Fiji, there is a real risk that the applicants will suffer significant harm. They therefore do not meet the criterion for a protection visa set out in s 36(2)(aa).
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under ss 36(2)(a) or 36(2)(aa) of the Act.
There is no suggestion that the applicants satisfy s 36(2) on the basis of being members of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicants do not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Date of hearing: 8 May 2025
Representative of the applicants: Mr Charles Yuen
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.
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