2305972 (Refugee)
[2025] ARTA 1483
•16 April 2025
2305972 (REFUGEE) [2025] ARTA 1483 (16 APRIL 2025)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2305972
Tribunal:General Member J Lock
Date:16 April 2025
Place:Adelaide
Decision:The Tribunal affirms the decision under review.
STATEMENT MADE ON 16 APRIL 2025 AT 1:30PM
CATCHWORDS
REFUGEE – Protection Visa – Fiji – race – indigenous Fijian iTaukei ethnicity – racial discrimination – does not fear harm or mistreatment from Fijian authorities – access to welfare system and informal supports – financial hardship –membership of particular social group – single mothers in Fiji – affects the whole population rather than the applicant specifically – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024
Migration Act 1958 (Cth), ss 5, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
Any 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
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 April 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Fiji, applied for the visa on 1 November 2022. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant had a well-founded fear of persecution on the basis of her race, religion, nationality, membership of a particular social group or political opinion if she were to return to Fiji. The delegate was also not satisfied that there was a real risk the applicant would suffer significant harm as a necessary and foreseeable consequence of returning to Fiji.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
The applicant appeared before the Tribunal on 14 April 2025 to give evidence and present arguments. The Tribunal also received oral evidence from Ms [A] [at] the applicant’s place of employment. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.
BACKGROUND
The applicant was born in [year] in [City 1], Fiji and is [age] years old. The applicant is of indigenous Fijian or iTaukei ethnicity.
The applicant grew up in [City 1] and left school after [a grade] in high school. The applicant attained a [Certificate].
The applicant is the third of five children. Her two older brothers [are] married and have families of their own. Her younger sister (aged [age] years) and younger brother (aged [age] years) continue to live in [City 1]. The applicant’s father is [age] years old, and he lives with the applicant’s younger sister and brother. The applicant’s mother passed away 10 years ago. The applicant is a single mother. Her daughter [was] born in [year] and is [age] years old. The applicant’s daughter currently lives in [City 1], Fiji, with her aunt, uncle and grandfather and attends secondary school. The applicant financially supports her daughter and family in Fiji with money that she earns in Australia.
Prior to leaving Fiji in 2022, the applicant worked [in] Fiji as a [Occupation 1]. The COVID-19 pandemic had a negative impact on the Fijian economy and the applicant lost her job. She continued to sell [things] to earn some income.
The applicant left Fiji and arrived in Australia on [date] July 2022 on a tourist visa (subclass 600). Initially she lived in Sydney. In October 2022 she travelled to Darwin. She lodged a protection visa application on 1 November 2022.
The Tribunal accepts the above to be true.
Evidence before the Department
The applicant’s claims contained in the protection visa application lodged with the Department of Home Affairs (the Department) on 1 November 2022 are summarised as follows:
·after coming to Australia as a tourist, she did not want to return back to Fiji
·Fiji’s economy is falling after COVID-19 and lockdowns
·as a grassroot person, she suffers a lot as a result
·the applicant’s small business [was] affected as people can only afford necessities
·the applicant did not suffer harm in Fiji nor move to seek safety
·the applicant does not think she will be harmed or mistreated if she returns to Fiji
·it will be hard for the applicant to support her child and family in Fiji as she is not qualified
·the applicant did not think the Fijian authorities would protect her due to racial discrimination
·the applicant would be most grateful if given an opportunity to live in Australia.
With her protection visa application, the applicant provided the following documents:
·a copy of her birth certificate
·a copy of her Fijian passport
·a letter from Mrs [B], Officer In Charge, [a workplace], Fiji dated 19 July 2002 providing a reference for the applicant, confirming she had worked as a volunteer from 11 June 2002 until the date of the letter
The applicant was granted a Bridging Visa C (subclass 030) on 10 November 2022 which permitted the applicant to study but did not permit the applicant to work.
On 18 February 2023, the applicant sent an email to the Department requesting information about having the work restriction lifted from her Bridging Visa to allow her to work to assist with the cost of studying a Certificate [course]. In support of her request, the applicant provided a letter from [an institute] dated 13 October 2022, confirming that the applicant was enrolled in a [course] [with] a pathway to the [qualification] with the institution. The program ran from 17 October 2022 – 25 May 2024 and required 20 hours a week of attendance.
On 22 March 2023, the applicant applied for a bridging visa with permission to work, to assist her cousin in running her small business and to financially support herself. The applicant attached:
·copies of her bank account statements
·copies of a bank card, Working with Children card issued by the Northern Territory (NT) government and a [health insurance] card
·a statutory declaration declared by the applicant on 13 March 2023 declaring that she was facing financial hardship and was seeking work rights so she can find employment and support herself financially and support her family back home
·a letter from [Ms C] dated 10 March 2023 stating that she currently supports the applicant financially
On 28 March 2023, the applicant was granted a Bridging Visa C which permitted her to study and work in Australia.
The applicant was not offered an opportunity to attend an interview with the Department.
On 26 April 2023, a delegate of the Department refused to grant the visa for the reasons outlined at paragraph 2.
Evidence before the Tribunal
The Tribunal heard evidence from the applicant and Ms [A] at the hearing held via video on 14 April 2025.
Witness evidence
Ms [A] gave evidence in her role [at] [Organisation 1]. [Details about the organisation deleted]. Ms [A’s] role is [deleted]. She confirmed the applicant had been working with [Organisation 1] for over a [year]. The applicant started on a placement and is now employed by the organisation.
Ms [A] stated that the applicant works well with [clients]. She gave evidence that the applicant is very well regarded and that everyone wants to work with her. She said that the applicant always delivers, is never late and never sick and expressed a view that it is hard to find a worker like the applicant. [Organisation 1] have applied to sponsor the applicant for a working visa. She spoke of what a loss it would be if the applicant returned to Fiji, and that she wanted the applicant to be sponsored to remain in Australia.
Ms [A] gave evidence that the applicant had not spoken to her about any fears she held that she would be harmed if she returned to Fiji. Ms [A] was not aware of any fears the applicant had of returning to Fiji.
Applicant’s evidence
The applicant gave evidence to the Tribunal in English and Fijian. There was an interpreter available to the applicant throughout the hearing. She sought the assistance of the interpreter as required. The majority of the hearing was interpreted.
The applicant gave evidence that the protection visa application was prepared on her behalf by a friend and she did not know about the information that it contained. The claims contained in the protection visa application were read out to the applicant through the interpreter. The applicant confirmed they were correct.
The applicant confirmed that the claims contained in the protection visa were her claims for protection and there was no other reason that she feared harm if she were to return to Fiji. The applicant confirmed she did not fear harm from Fijian authorities or any other person if she were to return to Fiji. The applicant confirmed she had not received different treatment because her race in Fiji.
When asked if the applicant had any further information to support her claims for protection, she stated that she would face financial hardship if she returned to Fiji. As the sole breadwinner of the family, she would not be able to find employment. She has been able to find employment in Australia that enables her to support her family in Fiji and her daughter who is attending secondary school.
When asked if the applicant suffered economic hardship because of her race, religion, nationality, membership of a particular social group or your political opinion, she responded that the cost of living keeps rising and getting higher and the wages and salary have remained the same.
The applicant attained the qualification of Certificate [in] October 2024. She undertook a placement as part of her studies with [Organisation 1] in April 2024 and obtained employment there after she had completed her studies.
The applicant is of the view the qualifications and work experience she had gained in Australia would not assist her in obtaining employment in Fiji as there were no [specified] services in Fiji. She did not think it would assist her to obtain employment in a related [area].
The applicant confirmed she attained a Certificate [in] Fiji. She undertook a placement at [a workplace], Fiji in 2002 as part of the course. She stated she had not worked in [the industry] since that time as there was no work available, and they did not employ many people. The applicant stated that education levels are high in Fiji and those who attain Year 13 in high school are able to work in [industry]. The applicant left school in [a grade].
The applicant confirmed her intention in coming to Australia was ultimately to study and obtain employment to support her family in Fiji. She explained that she did not apply for a student visa as she could not afford the school fees without work rights. She has now applied for a skilled migrant visa (subclass 482).
The applicant gave evidence of her family disowning her when she fell pregnant with her daughter. She stated she was pushed aside by her family and had to move from place to place to support her daughter for the first year of her life. Prior to leaving Fiji, the applicant was living in [Western] Fiji with her daughter and a friend. This is about 2 hours away from her father and family in [City 1]. She went through a traditional way of apologising to her father prior to leaving Fiji. She said that her father accepted her apology and is more accepting her of and her daughter now. She feels an obligation to pay back her family by supporting them.
The applicant’s daughter now lives with the applicant’s father, sister and brother. The applicant’s daughter is not happy about the arrangement and feels that she is not loved and is told to do everything. She wants to be in Australia with her mother. The applicant spoke of two instances last year when her daughter had been hit by her sister’s daughter and her sister. She did not have concerns about her daughter’s welfare when she left Fiji in 2022, but now has those concerns. She has not raised her concerns with her sister as they do not talk much.
The applicant confirmed that her daughter was not included in her protection visa application as her friend completed the application and she did not know what was in it.
The applicant expressed a concern that she will be pushed aside by her family and relatives again if she were to return to Fiji and be unemployed. She was concerned this would happen because she would be unemployed and not contributing to the family. The applicant did not believe her family would support her and her daughter, and stated “if you are not working people don’t want to know you, if you are working, people want a piece of you.”
The applicant confirmed her younger brother is unemployed and relies on the applicant for financial support. Her older brothers are both working but they have families of their own to support.
Following the hearing, the applicant provided a letter of support from [Ms D] (no surname provided), Staffing Manager at [Organisation 1] dated 14 April 2025. The letter confirms the applicant is employed [with] the [organisation]. The manager speaks of the applicant’s dedication and professionalism, her collaborative spirit and her contributions as integral to their operations in Darwin. The Tribunal accepts on the basis of this letter and the evidence of Ms [A] that the applicant is a valued employee of [Organisation 1].
Findings of fact
The applicant gave her evidence in an open and straightforward manner and provided honest answers to the Tribunal, even when they were not favourable to her case. Her evidence was largely consistent with the country information, which is discussed below. The Tribunal found the applicant to be a truthful witness and on the basis of her evidence accepts the following:
a. the applicant does not fear harm or mistreatment from Fijian authorities or any other person if she were to return to Fiji
b. the applicant experienced financial hardship in Fiji after losing her job due to the impact of the COVID-19 pandemic prior to coming to Australia in 2022
c. the applicant confirmed she has not received different treatment because her race in Fiji
d. the applicant completed [a grade] level education and attained a Certificate [in] Fiji and did not work in the area [after] that due to her level of qualifications
e. the applicant had experienced some rejection from her family after she fell pregnant with her daughter and she had to move around for the first year of her daughter’s [life].
f. the applicant has made a traditional apology to her father and her father has accepted the apology and now accepts the applicant and her daughter
g. the applicant has some concerns about the welfare of her daughter in the care of her sister, brother and father
h. the applicant claims she will be unable to find employment in Fiji if she were to return and would suffer economic hardship as a result
i. the applicant claims she will face ostracism from her family if she is unable to find employment in Fiji and contribute to the family
j. the applicant attained the qualification of Certificate [in] Australia in October 2024
k. the applicant has had employment experience [for] 12 months at [Organisation 1]
l. the applicant’s intention in coming to Australia was ultimately to study and obtain employment to support her family in Fiji. In making this finding, the Tribunal makes no finding in relation to the applicant’s initial intention in relation to applying for a tourist visa or her compliance with the conditions of that visa
While the Tribunal accepts the applicant may face some difficulty in obtaining employment if she returns to Fiji and might experience a degree of financial hardship, the Tribunal does not accept that this rises to the level of significant economic hardship that threatens a person’s capacity to exist so as to amount to serious harm.[1] The reasons for this are discussed below in the context of considering relevant country information.
CONSIDERATION OF CLAIMS AND EVIDENCE
[1] s5J(5)(d) Migration Act 1958 (Cth) (the Act)
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
The issue in this case is whether the applicant has a well-founded fear of persecution on the basis of economic hardship if she were to return to Fiji. Alternatively, the issue is whether there is a real risk the applicant will suffer significant harm if she were to return to Fiji. The applicant does not claim to fear harm on the basis of her race, religion, nationality, member of a particular social group or her political opinion. The applicant has given evidence of negative treatment from her family as a result of being a single mother. As such, the Tribunal has considered whether there is a real chance of harm on the basis of the applicant’s membership of a particular social group, specifically “single mothers in Fiji”.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of nationality
The applicant travelled to Australia on an apparently genuine Fijian passport, a copy of which was provided to the Department and Tribunal. The Department assessed the passport and found no evidence that it was a bogus document. The applicant has consistently stated that she is a citizen of Fiji. The Tribunal finds that the applicant is a Fijian citizen. The Tribunal has assessed her claims against Fiji as the country of nationality and the receiving country.
Consideration of relevant country information
Economic situation in Fiji
The Tribunal had regard to information regarding the economic situation in Fiji obtained from the Department of Foreign Affairs and Trade DFAT Country Information Report Fiji (20 May 2022) (the DFAT report 2022). This information was discussed with the applicant through the interpreter at the hearing.
DFAT reports that the World Bank defines Fiji as an upper-middle income country and is one of the largest economies in the Pacific region, but about a quarter of the size of the next largest, Papua New Guinea. Its per capita gross domestic product (GDP) is much higher than most Pacific neighbours’. While tourism accounted for about 40 per cent of the pre-COVID-19 economy, the pandemic caused significant disruption in this sector. About 30 per cent of the population was living in poverty in 2019, according to World Bank data, but estimates of poverty rates vary and the full impact of the COVID-19 pandemic is not known. According to the International Labour Organization (ILO), subsistence farming and kin-based wealth redistribution leads to a lower rate of extreme poverty than might otherwise be expected.[2]
[2] Department of Foreign Affairs and Trade DFAT Country Information Report Fiji (20 May 2022) (DFAT report 2022) 7 [2.7]
More recent sources indicate that the Fijian economy has recovered well following the pandemic, rebounding by 20 per cent in 2022 before slowing to 8 per cent in 2023.[3] The inflation rate in 2023 was 2.4 per cent; this is projected to temporarily grow to 5.5 per cent in 2024 due to tax changes before easing in 2025.[4] Unemployment in the formal workforce remains stable. In 2022, the overall unemployment rate was 4.3 per cent (down from a peak of 4.9 per cent in 2021).[5] Most Fijians are employed in the informal sector, particularly in the tourism, agriculture and aquaculture industries.[6] The number of Fijians employed in the informal sector is believed to have grown during the pandemic, with many Fijians moving from employment in the formal tourism industry, to informal jobs in sectors such as farming.[7]
[3] Pacific Economic Update: Summary and Key Findings’, The World Bank, March 2024 p.2
[4] Pacific Economic Update: Summary and Key Findings’, The World Bank, March 2024, p.4
[5] ‘Unemployment, total (% of total labor force)’, The World Bank, undated, accessed 9 June 2023
[6] DFAT report 2022 (n 2) 8 [2.18]
[7] ‘Informal sector growth’, The Fiji Times, 6 March 2021
The country information is consistent with the experience the applicant related to the Tribunal, of being employed in the tourism sector prior to the COVID-19 pandemic and losing her job as a result of the downturn in tourism due to the pandemic. The country information indicates that the economy has recovered since 2022 and unemployment rates have stabilised. The Tribunal notes that since being in Australia the applicant has attained further qualifications, [deleted]. The applicant has also been working in her area of qualification for a period of 12 months.
In response to the country information, the applicant stated that employment is very hard to come by and, outside of her qualifications, she felt there is no chance she will find employment in Fiji.
Having regard to the relevant country information, the Tribunal is not satisfied that the applicant will be unable to find employment related to her qualifications [if] she were to return to Fiji now or in the reasonably foreseeable future.
The Tribunal finds that while the applicant may face some difficulty obtaining employment it is unlikely she would be unable to obtain any employment if she were to return to Fiji now or in the reasonably foreseeable future. The applicant was working prior to the COVID-19 pandemic as a [Occupation 1] and lost her job as a result of the impact of the pandemic. The country information indicates that the Fijian economy has recovered well from the impact of the pandemic and unemployment levels are relatively low. The applicant may be able to return to her former employment in the tourism sector.
The applicant has also attained the further qualification of a Certificate [and] work experience in [a] sector while in Australia. The evidence the Tribunal received from Ms [A] and [Ms D], staffing manager at [Organisation 1] was that the applicant is skilled and dedicated [worker] and is well-regarded by her employer and clients of [Organisation 1].
The Tribunal considers the applicant’s qualifications and experience in Australia would increase her employment opportunities in Fiji. The Tribunal notes that the applicant had previously attained a Certificate I [and] undertook a month’s work experience in [a workplace] in Fiji in 2002. She reported she was unable to work in that sector after that due to the level of her qualifications. The Tribunal finds that with further qualification and experience, the applicant’s prospects of obtaining employment in the [fields] in Fiji have improved.
Access to the welfare system and informal supports
In the event that the applicant is unable to obtain any employment, the country information indicates that the applicant could access welfare payments or informal support through her family in Fiji.
Country information indicates that, while limited, social welfare is available in Fiji. There are six major government-administered social welfare programs: the Poverty Benefit Scheme, Care and Protection Allowance, Social Pension Scheme, Disability Allowance, Rural Pregnant Mothers’ Food Voucher and Bus Fare Subsidy Program. Assistance through these programs is provided in the form of monthly allowances, vouchers and bus fare concessions. [8] The Social Pension Scheme (SPS) only covers those employed in the formal sector who have received superannuation through the Fiji National Provident Fund (FNPF) and is available to eligible people over the age of 65 years.[9] The DFAT report 2022 identifies that the pension system consists primarily of the FNPF and given the majority of people work in the informal sector many would be unable to access the SPS.[10]
[8] ‘Social assistance policy: protecting the poor and vulnerable’, United Nations Women, undated, accessed 9 June 2023, p.1, p.9.
[9] ‘Social assistance policy: protecting the poor and vulnerable’, United Nations Women, undated, accessed 9 June 2023, p.1, p.10.
[10] DFAT report 2022 (n 2) 8 [2.22]
In response to information about being able to access welfare payments in Fiji, the applicant advised that she had applied for a pension through the FNPF and it was a long process and she is yet to receive a result. The applicant said she was struggling to provide all the information required for the FNPF. Given the country information indicates that the SPS is available to people over 65 years and the applicant is [age] years old, the Tribunal has inferred the applicant has applied for early access to the scheme. The Tribunal notes this is not the only form of support the applicant may be able to access if she were to return to Fiji, and country information indicates that she could access other social welfare payments.
The DFAT report also observes that indigenous Fijians (iTaukei) generally have large kinship networks with extended family often providing support when a family member is in need. It is uncommon for elderly people to live alone; they more commonly live with family who will support them.[11] iTaukei are the majority ethnic group in Fiji and enjoy significant social, economic and political capital.[12]
[11] DFAT report 2022 (n 2) 9 [2.23]
[12] DFAT report 2022 (n 2) 12 [3.10]
The applicant identifies as iTaukei. The applicant’s family situation is consistent with the country information, that her aged father and her daughter are living with her sister and brother who care for them. The applicant financially supports the family, including her unemployed brother. The applicant has two older brothers who are employed, although have financial responsibility to their own families as well. The country information indicates that there is likely to be some level of informal support available to the applicant through her extended family if she is unable to find employment if she were to return to Fiji.
The applicant gave evidence that traditional relationships and networks of communal living that used to enable people to support one another have broken down and this has exacerbated the level of poverty in Fiji. People are trying to make ends meet on their own and there is a perception that depending on someone else would be a burden. The applicant stated that as a family they try to keep together to face financial and emotional hardship. The applicant described herself as the sole breadwinner of her family, paying the bills and rent for her family. This is consistent with country information that suggests that personal remittances from overseas Fijians represent a significant source of income for the country.[13]
[13] The Pacific remittances boom: it’s for real - Devpolicy Blog from the Development Policy Centre, 5 November 2020
Based on the country information discussed above, the Tribunal is satisfied that if the applicant were unable to obtain any employment in Fiji, she could access welfare payments and informal support through her family.
Single mothers in Fiji
The applicant is a single mother, and the Tribunal has found that the applicant had experienced some rejection from her family after she fell pregnant with her daughter. The applicant gave evidence that she had to move around for the first year of her daughter’s [life]. The applicant’s daughter is now [age] years old, and the applicant has given evidence of making a traditional apology to her father and her father now accepting the applicant and her daughter. The applicant’s daughter now lives with her grandfather, aunt and uncle, although the applicant has some concerns about the level of care she is receiving there. The applicant financially supports her daughter and family in Fiji by sending money and paying for rent.
The DFAT Report 2022 describes Fiji as a traditionally male-dominated society and traditional gender roles being well-entrenched. According to World Bank figures, the participation rate for women is the lowest in the Pacific region at 35 per cent of the total labour force (by contrast, Australia’s rate is about 46 per cent of the total labour force). These figures are from 2019 and the impacts of the pandemic on the largely feminised tourism sector may have made the situation worse.[14]
[14] DFAT report 2022 (n 2) 17 [3.49]
The Tribunal accepts this indicates that the applicant’s prospects of finding employment in Fiji are lower because she is a woman in Fiji. As noted above, more recent country information indicates that the Fijian economy has recovered well since 2022.
The country information considered does not otherwise indicate a particular risk of harm for single mothers in Fiji. The Tribunal finds that while the applicant experienced some rejection from her family in the past, the applicant is now accepted by her family, and it is unlikely that she would face any risk of harm from her family in the reasonably foreseeable future. The applicant is concerned that if she were to return to Fiji and be unable to find employment and contribute to the family she would again be rejected by the family. The Tribunal does not accept that the applicant would be unable to find employment if she were to return to Fiji. Even if the applicant were unable to find employment, the Tribunal is not satisfied that the applicant’s family would again reject her and her daughter. This is after having regard to the length of time that has passed since the birth of the applicant’s child, the degree of acceptance now shown to the applicant and her child by her family in having her daughter live with them and the financial support that the applicant has given to her family over the past three years.
Does the applicant satisfy the refugee criterion for protection?
The applicant claims that she will suffer economic hardship if she were to return to Fiji as she would be unable to find employment to support herself and her family, including her daughter.
For the applicant to have a well-founded fear of persecution under the Act, the Tribunal must be satisfied that there is a real chance that the applicant will suffer serious harm if returned to Fiji because of her race, religion, nationality, membership of a particular social group or political opinion. The test is set out in s5J(1) of the Act.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted. While the applicant did not articulate that her claims were because of her race, religion, nationality, membership of a particular social group or political opinion, the applicant has identified negative treatment in the past as a result of being a single mother in Fiji. Noting the beneficial intention of the legislation, the Tribunal is satisfied for the purposes of s 5J(1)(a) that the applicant fears economic hardship because of being a single mother in Fiji.
Section 5J(1)(b) of the Act imposes an objective standard, that there is a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
To amount to persecution, s5J(4) requires that any harm the applicant fears must amount to “serious harm”. Under s5J(5), serious harm includes (but is not limited to):
(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.
The Tribunal has considered whether the degree of economic hardship feared by the applicant amounts to significant economic hardship that threatens the applicant’s capacity to subsist. The Federal Court has found that this must challenge the ability of an individual to continue to exist or remain in being.[15]
[15] SZBQJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 143 per Tamberlain J
The Tribunal is not satisfied that the applicant would be unable to find any employment if she were to return to Fiji now or in the reasonably foreseeable future. The Tribunal is satisfied that if the applicant were unable to obtain any employment in Fiji, she could access welfare payments and informal support through her family.
The Tribunal is not satisfied that the applicant’s family would again reject her and her daughter. Even if this were the case, the Tribunal does not accept that facing rejection from her family amounts to serious harm. The applicant was previously able to independently support herself and her daughter. The Tribunal has found the applicant could access to welfare payments if she was unable to support herself or be supported by her family.
While the applicant may face some financial difficulty if she were to return to Fiji and may not earn the level of income she is able to earn in Australia, the Tribunal is not satisfied that this amounts to significant economic hardship that threatens her capacity to subsist and therefore serious harm. It follows that the Tribunal is satisfied there is no real chance of persecution the purposes of s5J(1)(b) of the Act.
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) of the Act because the person is a refugee.
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa) of the Act. The Tribunal has considered whether, as a necessary and foreseeable consequence of being removed from Australia to Fiji, there is a real risk that the applicant will suffer significant harm.
‘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.
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 and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.[16]
[16] see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth) 170-1 [1169], [1180]
The Tribunal finds any economic hardship faced by the applicant if she were to return to Fiji does not amount to significant harm as defined in s 5(1) of the Act. There is no evidence before the Tribunal to suggest that the applicant may be subjected to arbitrary death or the death penalty.
The Tribunal has considered whether any economic hardship in the applicant’s circumstances could amount to torture, “cruel or inhuman treatment or punishment” or “degrading treatment or punishment”. The test requires an intentional act or omission by a perpetrator – either an actor of the state or a non-state actor.[17] The applicant gave evidence that she does not fear harm or mistreatment from Fijian authorities or any other person if she were to return to Fiji. There is no evidence before the Tribunal to suggest any economic hardship would be intentionally inflicted on the applicant by a perpetrator. The Tribunal finds that any economic hardship the applicant may face on return to Fiji does not constitute significant harm as defined in s 36(2A) and s5(1) of the Act.
[17] Department of Home Affairs (2020) Complementary Protection Guidelines [unpublished procedural instruction] Refugee and International Law Section, Australia [3.4.3]
The Tribunal also finds that any risk of economic hardship faced by the applicant in Fiji would be faced by the population of Fiji generally and not the applicant personally. Any economic hardship would be the result of the state of the Fijian economy, which affects the whole population rather than the applicant specifically. Under s36(2B)(c) of the Act, this means there is not a real risk that the applicant will suffer significant harm.
The Tribunal finds there is no real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Fiji.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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cruel or inhuman treatment or punishment means an act or omission by which:
(a) severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b) pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c) that is not inconsistent with Article 7 of the Covenant; or
(d) arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a) for the purpose of obtaining from the person or from a third person information or a confession; or
(b) for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c) for the purpose of intimidating or coercing the person or a third person; or
(d) for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e) for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
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receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
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5H Meaning of refugee
For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
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5J Meaning of well-founded fear of persecution
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.
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.
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.
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.
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.
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
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.
A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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Protection visas – criteria provided for by this Act
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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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