2308430 (Refugee)

2308430 (Refugee) [2024] AATA 1926 (6 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Pablo Ramirez
CASE NUMBER:  2308430
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Mr S Norman
DATE:6 March 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 06 March 2024 at 11:40am
CATCHWORDS
REFUGEE – Protection Visa – Fiji – feared that he would be blamed for anything arising from the 1987 coup – not satisfied the applicant has a real chance of suffering serious or significant harm in Fiji – applicant didn’t engage in any material political event or discussion –land disputes – family’s financial circumstances – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 15 June 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant who claims to be a citizen of Fiji, applied for the visa on 5 April 2017.
The Department delegate’s decision was not lodged with the Tribunal.
A previously constituted Tribunal had affirmed the delegate’s decision on 25 September 2022 (AAT # 1712931), and that decision was subsequently set aside by order of the Federal Circuit and Family Court of Australia (Division 2) dated 13 June 2023. In that order, the Court noted inter alia:
The first respondent accepts that the second respondent committed a jurisdictional error by failing to consider a claim clearly arising on the material that the applicant feared harm as a result of being “on the list for the military and the police” in relation to a fire at the petrol station where the applicant was employed or for things he may have said about the government
…..
Had the second respondent in assessing the chance and risk of serious and significant
harm faced by the applicant considered the applicant’s claims or integers that the police may pursue him in relation to the fire or for things he may have said about the government, there is a realistic possibility of a different outcome…
The matter is now before the Tribunal pursuant to an order of the Court.
The applicant appeared before the Tribunal on 5 March 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs [A] (the applicant’s wife). The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.
The applicant was represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Meaningful opportunity to give evidence:
Respectfully, it sometimes proved difficult to obtain evidence from the applicant. This did not appear to be the fault of the interpreter, as once questioned had been clarified and/or repeated, the applicant appeared to provide a meaningful response to questions asked.
After then considering all the applicant’s evidence, the Tribunal was satisfied the applicant had been given a meaningful opportunity to give his evidence and submissions, including at hearing.
The applicant’s receiving country:
The applicant lodged a photocopy of the biodata page of his Fiji passport (expiry date: [date] 2025[1]). Based on this evidence, the Tribunal except the applicant is a citizen of Fiji and that Fiji is his receiving country.
[1] PDF[1] – p.52 (‘PDF[1]’ refers to the merged Department file – AAT # 1712931).
His wife’s passport appeared to have expired [date] 2020. The Tribunal understands that Fiji passports may be renewed in Australia.[2] However, as the wife was not an applicant before the present Tribunal, and given this did not appear to be a material problem for the applicant, this was not discussed at hearing.
The applicant’s migration history:
[2] Passport Booking | Fiji High Commission, accessed 5 March 2024.
As noted in the delegate’s decision, the applicant had travelled to Australia on three occasions since 2016. He held a multiple entry Tourist visa. The applicant last entered Australia on [date] March 2017, and lodged the Protection visa application on 5 April 2017. The applicant also claimed to have departed Fiji lawfully on a passport in his own name.[3]
[3] PDF[1] – p.40.
The Tribunal noted that based on evidence from the Department, the applicant had entered Australia on three occasions and departed on two occasions:
·First arrival in Australia   – [date] September 2016
·First departure from Australia            – [date] November 2016
·Second arrival in Australia                 - [date] December 2016
·Second departure from Australia      - [date] January 2017
·Third (last) arrival in Australia            - [date] March 2017
The Tribunal’s consideration of material claims:
The applicant, by his now agent, lodged numerous pieces of evidence and submissions. Though not always expressly referred to herein, the Tribunal has had regard to all evidence and submissions prior to drafting this decision.
The claims lodged prior to the Department decision:
In his Protection visa (PV) application, the applicant (DOB: [date]) claimed to be a Fijian citizen, a Christian, and to have been employed as a [occupation] in Fiji. He also claimed to have married in 1988 (his wife’s PV application was heard by a differently constituted Tribunal). He also claimed to have previously resided in [Village 1]village.[4] Further, from January 2016 to 2017 the applicant was unemployed in Fiji.
[4] PDF[1] - p.46.
At hearing, the now [age] year-old applicant explained that for the 40 years he had lived in Fiji immediately before his travel to Australia he predominately resided with his immediate family (wife and two daughters – both now married and one employed as a [Officer]), in [City 1] – being some 2 hour drive from [Village 1] village.
In writing, the applicant claimed to have one cousin and one nephew living in Fiji; and two cousins and three nephews living in Australia. He is able to contact family in Fiji by telephone. He then claimed:
·     he travelled to Australia to attend a funeral and later, to a commemoration ceremony – and the Tribunal accepts this is correct
·     he also claimed the present Fiji government does not allow criticism. They have introduced decrees and village bylaws to legalise the governance – though why this was a concern to the applicant was not initially explained
·     indigenous land rights are being abused and the Great Council of Chiefs has been dismantled[5] – though why this was a concern to the applicant was not explained
·     relocating within Fiji is not permitted by the village by-laws – though as noted at hearing, this was not correct as the applicant had relocated from [Village 1] village to [City 1] city (an approximately 2 hour drive)
·     unemployment and the cost of living in Fiji are high – though as noted at hearing, there was no indication the applicant would be denied employment etc for any reason giving rise to international protection obligations
Section 423A of the Act:
[5] Though not material to it’s decision, the Tribunal notes - Banned for almost two decades, Fiji's Great Council of Chiefs is back and pushing for greater influence - ABC News, 4 March 2024, accessed 5 March 2024.
Section 423A of the Act stated:
How Tribunal is to deal with new claims or evidence
(1) This section applies if, in relation to an application for review of a Part 7-reviewable decision (the primary decision), the applicant:
(a) raises a claim that was not raised before the primary decision was made; or
(b) presents evidence in the application that was not presented before the primary decision was made.
(2) In making a decision on the application, the Tribunal is to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.
After the Department decision was finalised (15 June 2017), the applicant provided further and or new claims. When discussed previously, the applicant is recorded as saying he didn’t write the initial PV statement and that a friend named [name] (since passed) wrote it, the applicant just signed. Some of the claims he agreed with (and same are discussed below), and some he did not. He said he was in a hurry to complete his PV application in order to extend his stay in Australia. His agent said (words to the effect), the applicant was not that literate – and respectfully, after discussing his claims at hearing, the Tribunal accepts this may be the case.
Accordingly, and after considering the explanation/s provided by and on behalf of the applicant about the new/expanded claims, the Tribunal has decided not to draw any inference unfavourable to the credibility of the new claim/s or evidence.
The newly lodged/expanded claims - the fight at the party (prior to 1988):
After the Department decision was finalised (15 June 2017), and including by statutory declarations dated 13 January 2019 & 14 August 2023, the applicant claimed that a long time ago there was a party and a fight broke out. The following morning he noticed that people were still arguing. The applicant said that he did not know anything about the fight/s. He said they were all drunk and a friend of his was hit and fell. He picked his friend up and ran though he was hit with a chain. The applicant was hurt and then went home. He was also taken to hospital for treatment. Even now he has a mark. All this happened before the applicant was married (which was in 1988).
The country information, the gist of which was noted at hearing, stated:
2.34 Fiji is generally stable and secure … Crime rates, especially for violent and organised crime, are generally low. … Some alcohol-related street violence occurs … Accusations of police violence are commonly reported and regularly investigated…
And:
5.6 The Fiji Police Force (FPF) is a national police force that covers the whole country. The US Department of State Overseas Security Advisory Service 2020 Crime and Safety Report assesses Fiji police as ‘professional’ and notes recent improvements in training and accountability. It notes that … ‘victims of crime can expect fair treatment with dignity’.[6]
[6] DFAT COUNTRY INFORMATION REPORT FIJI 20 May 2022.
At hearing, the applicant explained that he and some friends were drinking when a fight erupted. At the time, the applicant and some of the friends were in the process of leaving the drinking session, but some of the opponents followed them and the applicant was hit. He was then provided some medical treatment and sent home. He appeared to agree that he fairly immediately returned to his home and shortly thereafter returned to work. The Tribunal accepts this is correct.
When then discussed, except as discussed below, the applicant conceded he did not have any ongoing problems arising from this incident, in the approximately 29 years between the fight (prior to 1988) and the last time he arrived in Australia (in March 2017). He said (words to the effect), the incident is ‘too far gone’ for it to give rise to any further problems. The Tribunal accepts this to be correct.
Next, the applicant also advised the Tribunal that he was hit by one of the persons in the fight in or around 1988 and this had resulted in him now needing eye surgery. That being said, in the intervening years the injury had not caused the applicant ‘much concern’ (he said when it was hot his vision may be blurred and he wore sunglasses).
However, he also said he had more recently seen a doctor in Fiji sometime between 2010 and 2017 and was told the Fiji medical services did not have the necessary facilities to provide any surgical treatment. When the applicant had more recently seen a doctor in Australia, he was told his eye injury could be treated with surgery in Australia.
Regarding healthcare in Fiji, the country information stated:
2.11 Healthcare is generally available for those who need it. Quality is better in urban areas and may be basic in rural areas, especially the outer islands … [7]
[7] DFAT COUNTRY INFORMATION REPORT FIJI 20 May 2022.
Importantly, at hearing the Tribunal said it had not seen any evidence that a person like the applicant had a real chance of being denied, or otherwise prevented from receiving, the medical care available to all citizens of Fiji should he return. Therefore, and notwithstanding the health services in Australia may be more sophisticated than those available in Fiji, without more this may not give rise to international protection obligations in respect of the applicant. The applicant did not materially comment.
After then considering the evidence, the Tribunal accepts the applicant may obtain better health care in Australia. However, and for the reasons set out above, I am not satisfied he would have a real chance of suffering serious harm for a prescribed reason (refugee protection obligations), or that there is a real chance he would suffer significant harm (complementary protection obligations), for any reason related to his eye injury or the 1988 fight, should he return to Fiji.
The newly lodged/expanded claims - Rabuka’s 1987 coup:
The applicant continued:
·     during Rabuka’s coup, the one when the city was burnt down in 1987, the applicant was working at the [workplace] (at hearing, the Tribunal understood the applicant explained he had only worked in Fiji for about 3 ½ years at the [workplace] ‘on and off’ – and he had also briefly been employed as [an] officer in a [company])
·     He was attending a car at the service station when he was told to move, and that if he did not he would be killed. A person then threatened him and hit him with a pump or an axe. The person then dragged the applicant back by his shirt and pushed him down and kicked him and told him to get out of there or he would be killed (he did not claim to need medical attention). The applicant then ran off. His assailant then started a fire at the service station and there was a lot of burning and looting and the military was in the streets
·     Later the applicant attended a police station. He advised the police he was [working] at the [time]. The applicant also provided a statement but he did not recognise his assailants as they were wearing mask/s. Sometime after that the applicant became words to the effect traumatised as he thought he might have died
·     The applicant now fears he will be ‘blamed for things he didn’t do’
The country information, the gist of which was noted at hearing, stated:
2.2 A Labour-National Federation Party (NFP) coalition government was elected in 1987 with strong backing from both indigenous Fijian (iTaukei) and Indo-Fijian trade unionists. Widespread protests among iTaukei arose and the Government was removed in a coup d’état within weeks. The Governor-General established an interim civil government that again only lasted weeks before another coup d’état led to the dismissal of the Governor-General and the declaration of a Republic.
And:
3.40 … Sitiveni Rabuka, who instigated both 1987 coups, later served as Prime Minister and Leader of the Opposition. People involved in more historic coups will likely have already been punished for any crimes related to those events and many enjoyed successful careers after the coups.[8]
[8] DFAT COUNTRY INFORMATION REPORT FIJI 20 May 2022.
At hearing, and when asked why he feared he would be blamed for anything arising from the 1987 coup, the applicant said he feared harm as he was near the burning service station and he was now ‘on a list’.
After considering the evidence, the Tribunal will accept the applicant was near a service station burnt down in the course of the 1987 coup in Fiji. The Tribunal will also accept the applicant subsequently provided a statement to the police, and that he was then released and not spoken to again about this incident (which the Tribunal understands was the applicant’s evidence about this incident).
The Tribunal has also included further findings (including the claim about being on a list) in the immediately below sub-heading.
The newly lodged/expanded claims - the taxi driver friend’s murder (in the year 2000):
The applicant continued:
·     The applicant now fears his name is on the ‘list for the military and police for what happened last time’ – being the 2000 murder (and for reason of his having been near the abovementioned burning service station during the 1987 coup)
·     The applicant claimed that a taxi driver was murdered (the applicant was working at the service station on the night of the murder – being in the year 2000)
·     The taxi driver was a friend of the applicant and the applicant was reported to the police as a suspect. The applicant did not have any involvement. The applicant does not know why he was reported. He believes the friend (who had reported him) may be Indian Fiji
·     the police then came to the applicant to speak about the murder. They said his friend reported that the applicant ‘knew the murderer’. The applicant was taken to the police station and investigated. The applicant was shocked as he did not know anything about the case
·     the friend who had reported the applicant came to the police station and the applicant had greeted him. He was then asked why he greeted this friend and the police then told him this was the person who had reported the applicant
·     later the applicant asked the friend why he reported the applicant to the police, and why he had been telling lies about the applicant. This person did not say anything, then drove away. The applicant had not apparently seen this person since
·     on his release after making a statement, the police said they will contact him later but the police never contacted him again
·     the police subsequently caught the person responsible for the murder of the taxi driver. The applicant said this may have occurred also around the year 2000
The applicant claimed the police also said they had his name and may question him again if ‘anything comes up’. At hearing, the applicant explained the police said (words to the effect) ‘they knew who he was and if any other problem arose, they would come to speak to him’.
Regarding the police in Fiji, the country information stated:
5.6 The Fiji Police Force (FPF) is a national police force that covers the whole country. The US Department of State Overseas Security Advisory Service 2020 Crime and Safety Report assesses Fiji police as ‘professional’ and notes recent improvements in training and accountability. It notes that police may not be based in vehicles and may not arrive in time to disrupt crimes in progress but assesses that ‘victims of crime can expect fair treatment with dignity’.
5.7 Police are generally well-resourced by the Government and receive funding and training from overseas aid partners. The police are, in general, disciplined … [9]
And:
5.13 Police misconduct, including excessive violence, is regularly investigated with a full range of censures routinely used, from disciplinary measures to dismissal and criminal charges being placed. In most cases, there is reasonable action taken when a complaint is reported.[10]
[9] DFAT COUNTRY INFORMATION REPORT FIJI 20 May 2022.
[10] DFAT COUNTRY INFORMATION REPORT FIJI 20 May 2022.

After discussing same at hearing, the Tribunal proposes to accept the applicant was questioned on three occasions at the time of the 2000 murder of his friend the taxi driver. As claimed at hearing, the Tribunal will accept the applicant was hit on one of these occasions (though no subsequent medical assistance was apparently required). The Tribunal will also accept the perpetrator of this crime was located by the Fiji police (also in 2000).
At hearing, and by way of s.424AA, the Tribunal noted the applicant had entered Australia on three occasions well after the 2000 murder incident (the first being on 22 September 2016), and that he had departed Australia and returned to Fiji on two occasions (his travel was lawful). Further, that the applicant had not appeared to have had any further problems with the police after the 2000 incident; and that the now [age] year-old applicant did not appear to have had any other material problem in Fiji since 2000 (apart from lengthy periods of underemployment). The applicant none-the-less claimed to continue to fear he was on a list with the military and or the police.
After then considering the evidence, the Tribunal is not satisfied there is a real chance the applicant would suffer material harm in Fiji, for reason of the 2000 murder and/or the 1987 coup. Neither does the Tribunal accept the applicant is on any material list held by the police and/or the miliary. If this was to cause problems for the applicant, the Tribunal is satisfied that those problems would have arisen prior to the applicant’s last departure from Fiji in March 2017 (some 17 years after the last of the two aforementioned incidents). Further, based on the accepted evidence herein, I am not satisfied there is a real chance of any such harm arising in future.
Therefore, the Tribunal is not satisfied the applicant has a real chance of suffering serious or significant harm in Fiji, for any reason discussed above.
The newly lodged/expanded claims - the applicant speaking about political issues:
The applicant continued:
·     He said the authorities wished to speak with him at the same time (2000) about his talking about the government and ‘things that are happening now’
·     the applicant said when things occur in Fiji, a group of people ‘sit down and talk about it’ - ‘usually we talk about military and the police but we have to be careful’ – and he may not always be careful
·     and with the exception of one religious protest against the prohibition of gatherings (and for which he did not claim any harm), the applicant had never participated in protests, nor had he had problems with the authorities or anyone else (otherwise than referred to herein)
Regarding political expression and security in Fiji, the country information stated:
2.34 Fiji is generally stable and secure. The most recent elections in 2018 were orderly and free from violence. …The risk of terrorism is low. [11]
And:
3.27 DFAT assesses that protesters in general may be prevented by the state from protesting lawfully. … Laws, including provisions outlawing sedition and the Public Order Act, can be used against protesters which can lead to prison sentences. DFAT has not observed a strong pattern of interference against low-level attendees of protests (protest leaders are more likely to be charged). On that basis, DFAT assesses that protesters face a low risk of official discrimination, but notes that such discrimination is not impossible. There is a moderate risk of violence in the form of police brutality.
…..
3.30 DFAT assesses that social media users who criticise the Government face a low risk of official discrimination. Some sources told DFAT that the political environment promotes self-censorship. If there are consequences for online speech, these are more likely to be in the form of questioning or short-term arrest and detention rather than long-term incarceration. The risk is much higher for high-profile individuals; a person of low profile posting anonymously is unlikely to attract official attention. Where there are consequences (particularly for high-profile social media users), these may include questioning by police, long court cases or prosecution under the Public Order Act …
And:
3.39 Politics and parliamentary tactics can be energetic and robust. Opposition political parties and figures are public with their views, and efforts to discipline them are in accordance with the law. DFAT assesses that opposition political parties and their members experience a low risk of official violence but notes that discrimination in the form of questioning or restriction on activities is possible.[12]
[11] DFAT COUNTRY INFORMATION REPORT FIJI 20 May 2022.
[12] DFAT COUNTRY INFORMATION REPORT FIJI 20 May 2022.
The applicant said he and his wife did not speak about politics ‘very much between themselves’. He said we don’t know what’s going to happen and that ‘politics is politics’. The applicant said he did not like to be politically involved and ‘did not follow such things much’. The Tribunal accepts this to be correct.
Therefore, the harm feared by the applicant related to (principally) discussions with work colleagues and or family members. That being said, in the 17 years between the 2000 murder investigation and the time of the applicant’s last departure from Fiji (in March 2017), it did not appear the applicant had come to the adverse attention of the Fiji government, or anyone else, in Fiji. The Tribunal understands it need not make an applicant’s case, but it also did not appear he engaged in any material political event or discussion either in Fiji (except for one religious protest for which there were no consequences), and he did not engage in any material political event or discussion in Australia (including with his wife’s cousin – discussed below).
Therefore, and based on the accepted evidence herein, the Tribunal does not accept the applicant would even be considered a low-level political activist in Fiji; nor that there is a real chance he would suffer any harm for this reason in Fiji; nor that he would wish to engage in political discussion that would be any cause for concern, should he return to Fiji.
The Tribunal does not accept the applicant has a real chance of suffering serious or significant harm in Fiji, for any reason related to his actual or imputed political opinion.
The Tribunal also does not accept the applicant’s claimed political opinion would give rise to him being included in any ‘feared list’ in Fiji.
The Tribunal had not discussed whether the applicant could relocate within Fiji, as given all the findings herein, such a discussion is not necessary.
The newly lodged/expanded claims - the wife’s cousin:
The applicant continued:
· He referred to one of his ‘wife’s cousin brother’ (at hearing, the Tribunal was advised this was a first cousin of the wife). He said the family was close and this cousin had produced anti-Fiji government videos (including in Australia). The applicant had seen the videos and felt nervous about the family relationship because it reflected on him and his family
The wife (a witness at the hearing) had also swore a statutory declaration dated 14 August 2023. Amongst other things, she claimed hers and the applicant’s two (adult) children are in Fiji; that her cousin caused problems for the Bainimarama government; that if she returned to Fiji she would be taken by the military and asked about the cousin (and she has a close connection with the cousin); and that she is unable to transfer property in Fiji.
In a document titled ‘Notes and background information’, it was claimed the cousin is a well-known anti-government activist, and coupled with the husband’s past police engagement this exacerbates her fear, they will become involved in land disputes and suffer as a result, there is impunity for perpetrators of harm, and relocation is not an option.
It was also claimed the cousin was a former friend of the former Fiji Prime Minister (Bainimarama); that he is now an antagonist of the former Prime Minister and had organised many events in Canberra and Sydney, that he was the [position] of [a] democracy and freedom movement in the early 2010s. This person was also allegedly a well-known defector from the inner circle of the former Prime Minister.
As well as other country information cited herein, the country information stated:
3.8 Indigenous Fijians descend from Melanesian groups arriving in western Fiji, and from Tongan, Samoan and other Polynesian groups arriving in eastern Fiji over the last several thousand years. Fijian culture is thus diverse and varied across the country. Fijian culture is traditionally hierarchical and patrilineal, and structured into a complex system of families, tribes, clans, and confederations of those groups.[13]
[13] DFAT COUNTRY INFORMATION REPORT FIJI 20 May 2022.
When discussed with the applicant at hearing, the Tribunal understands the cousin commenced residing in Australia ‘over ten years prior’ to the Tribunal hearing (and at least four years prior to the applicant’s last travel to Australia); that notwithstanding the wife’s family was said to be close, the applicant (and the wife) was not aware of the cousin’s residential address in Canberra, was not aware of what the cousin did for employment, and neither the applicant nor his wife spoke to the cousin ‘very often’. The applicant did claim to have regular discussions principally with his immediate family (two daughters) in [City 1], and also other family members, and there was no indication that anyone of them was harmed, harassed or even questioned in Fiji about this cousin in Australia.
The applicants were none-the-less concerned they may face difficulty on return to Fiji for reasons of the cousin’s activities in Australia.
As stated at hearing (words to the effect), given the patrilineal nature of Fiji society (and the cousin was not on the applicant’s patrilineal side of the family), and given none of the other family members of the applicant’s family in Fiji were harmed, harassed or even questioned about the cousin’s activities in Australia, the Tribunal may find (and now does find) that the applicant (nor his wife) would not have a real chance of suffering any harm in Fiji arising from the activities of the cousin in Australia.
The Tribunal does not accept the applicant (or his wife) has a real chance of suffering serious or significant harm in Fiji, for any reason related to the activities of the cousin in Australia.
The newly lodged/expanded claims - the brother and his military service:
In his statutory declaration dated 13 January 2019, and orally at hearing, the applicant continued:
· one of the applicant’s (younger) brothers was previously in the military but he had since resigned. He had served in the Middle East, but the applicant is not aware why this brother resigned from military as he did not think it was his business to ask
The country information stated:
5.2 The RFMF have a visible presence. Media reporting on RFMF activities is common and having served in the military or having a family member who did can be a source of pride for many Fijians. …
5.3 Although the military is an active and visible presence in Fiji they are unlikely to hinder the day-to-day activities of most Fijians … many Fijians hold the RFMF in high esteem because of their disaster relief efforts and strong traditions of service within families, for example. There is no conscription in Fiji: people join the military voluntarily.
5.4 Upon expiry of their original enlistment period, RFMF members are transferred to the Reserve until age 55. They can be recalled to service by the President until that age in cases of ‘invasion, war or danger … or by reason of any internal emergency’. DFAT is not aware of any recent examples of this occurring.[14]
[14] DFAT COUNTRY INFORMATION REPORT FIJI 20 May 2022.
At hearing, and when discussed, the applicant said the brother served in the military for four years (and that he had served in the middle east for a period), that he did not know when the brother resigned his military position (though he believed it may have been around a time of change of government in Fiji), and that he no longer spoke to this brother.
That being said, and as noted at hearing, even if the Tribunal accepts the evidence, there did not appear to be any basis (and the Tribunal now finds there is no basis), to find the applicant would have a real chance of suffering serious or significant harm in Fiji, for reason of the brother’s resignation from the military.
The newly lodged/expanded claims - the village land:
The applicant continued:
·     there is fighting about land in his village. His wife’s family had lost their land
·     a Chinese company had developed a small quarry near his village. He referred to Group 1[]members (of whom he is a member), who wanted to take the land back, NTLB let them do it without permission. The applicant is a member of [Group 1], for village [Village 2]. His uncle came along checked with [Group 1] and [Village 2] , and they said do something about it. The applicant had spoken to his uncle but said nothing had been done at that time
·     the Chinese people want to build a hotel on the [island], but the village people (not the applicant’s village) say the village is gone and they were going to protest
·     the applicant said land is a big issue in Fiji and it is being taken
·     and as noted above, the wife said she is unable to transfer property in Fiji; and they will become involved in land disputes and suffer as a result, there is impunity for perpetrators
In writing, the applicant also said that if returned to Fiji he would be involved in protesting about land being taken. He said the government is giving land to the Chinese people and if the land is given away it cannot be taken back. The [Group 1] does not have a say. He said his wife’s village is gone and they have only a leasehold and the applicant said if they lose this he is not sure where he will stay. He said sometimes this impacts his mood he growls at his wife.
In writing, the applicant said if his uncle passes away he will be the next person and the title will come to him or at least his father. If the applicant subsequently refused to take the position the oldest person from the father’s brother would have to take it or ‘the family has to talk about it’. That all depends on the [Group 1]. If there is a problem, he could be scared.
Also, though he returned to his village on occasion to engage in farming, the applicant told the Tribunal he principally resided in [City 1] for the 40 years prior to his arrival in Australia. As also referred to above, the applicant said he and his wife did not speak about politics very much between themselves.
The country information, the gist of which was noted at hearing, stated:
2.24 Land rights are controversial in Fiji as they are in Australia. The colonial government allocated ancestral land to traditional owners who now own the vast majority of land in Fiji. Indo-Fijian indentured workers were not given access to land by the colonial government and iTaukei were prevented from working on the sugar cane plantations.
2.25 About 90 per cent of land is owned by traditional owners, with 6 per cent government-owned and 3 per cent freehold land. iTaukei owners often lease land to others through a government-coordinated leasing system. There are restrictions on the use of land; for example, agricultural land must be used for agricultural purposes, preventing land banking or alternative uses of the land. Leases are for a period of at least two years but land is usually leased for 30 years. Residential leases are longer and leases can be bought and sold.
2.26 Both iTaukei and Indo-Fijians lease land from traditional owners but it cannot be bought or sold, only leased. A tenant can be removed from land if it is not maintained or used for its intended purposes (for example, if an agricultural lease does not commence farming activity within a certain time). This involves a breach of lease and a court process that can lead to eviction.
2.27 Informal land use (‘squatting’) is common. Most squatting is done with the permission of the land owner; for example, extended family using the land without a formal lease agreement. Informal land users have few legal rights and may be asked to leave at any time. Internal migration from rural areas to cities has increased the number and size of informal settlements in recent years.[15]
[15] DFAT COUNTRY INFORMATION REPORT FIJI 20 May 2022.
When discussed at hearing, the applicant explained the [Group 1] are a land-owning group of which he is a member. A [uncle] ([age] years of age) is the current head, and this uncle had three adult male children. When then discussed, and contrary to prior claims, the applicant agreed (words to the effect) that he would not be automatically considered for the head role for the [Group 1] (should his[uncle] pass), and he would not be involved in any land dispute in future. Further, and again contrary to a prior claim, he said his family land has not been taken from the family (ie the [Group 1]), and the applicant did not claim (at hearing) this was likely to occur in the foreseeable future. The Tribunal accepts this is correct, as it was clarified at the hearing.
The Tribunal therefore finds the applicant does not have a real chance of suffering serious or significant harm in Fiji, arising from any land dispute involving the [Group 1].
Next, the wife (who was not an applicant before the Tribunal), said she is unable to transfer property in Fiji (which based on the country information the Tribunal accepts); and she and the applicant would become involved in land disputes and suffer as a result. However, for the reasons set out above, the Tribunal does not accept the applicant has a real chance of suffering serious or significant harm in Fiji, arising from any land dispute – including any involving the [Group 1].
The wife also referred to persons acting with impunity in Fiji. The Tribunal noted the wife’s evidence on the applicant’s behalf at hearing but nothing the applicant claimed satisfied the Tribunal that any alleged impunity would cause the applicant any harm in Fiji.
The Tribunal does not accept the applicant has a real chance of suffering serious or significant harm in Fiji, for any reason related to land disputes.
The newly lodged/expanded claims - the applicant’s financial circumstances:
The applicant continued:
· he is worried about his family financially and also about things that happened. He does not wish his family to become involved
The country information, the gist of which was noted at hearing, stated:
2.7 The World Bank defines Fiji as an upper-middle income country. Fiji 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’.
2.8 Tourism accounted for about 40 per cent of the pre-COVID-19 economy; the pandemic caused significant disruption. According to the Asian Development Bank, GDP growth was negative 15.7 per cent in 2020. Remittances from the diaspora, another important source of income, were also badly affected by the pandemic. Agricultural production, especially of fruits and vegetables, sugar and kava, is important to the economy but vulnerable to cyclones.
2.9 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.[16]
[16] DFAT COUNTRY INFORMATION REPORT FIJI 20 May 2022.
At hearing, the Tribunal noted and the applicant accepted, that serious poverty is not common in Fiji as immediate and extended family members support each other, and they may all engage in subsistence farming. The Tribunal also noted there was no evidence that had satisfied it he would not be able to compete for a job commensurate with his skills in Fiji; and there was no evidence that he may be (ie) denied employment intentionally and/or for any prescribed reasons. The now [age] year-old applicant said he did not wish to be a burden on his children in his old age.

That being said, the Tribunal accepts the applicant would wish to remain in Australia where he may find and retain better paid work than in Fiji (he is currently employed in a [workplace]). However, based on the evidence before it, the Tribunal is not satisfied the applicant (or any family member) would be denied work in Fiji for any reason prescribed in the Act (with respect to refugee protection obligations); nor that there is any evidence (ie) of any intention to harm the applicant personally (including by denying him work) in Fiji.
Therefore, the Tribunal does not accept the applicant has a real chance of suffering serious or significant harm in Fiji, for any reason related to his or his family’s financial circumstances.
After then considering the accepted evidence cumulatively, the Tribunal remains satisfied the applicant does not have a real chance of suffering serious or significant harm in Fiji.
Failed asylum seeker:
The country information, the gist of which was noted at hearing, stated:
5.28 DFAT is not aware of any official or societal discrimination against failed asylum seekers. Many asylum seekers begin their journey by responding to advertisements that promise a job and a Medicare card in Australia. These advertisements are scams with the organisers later making asylum claims on behalf of applicants that the applicant may not be aware of at the time they sign up. Emigration and return to Fiji are common in Fijian society. Many Fijians have cultural and family links to Australia, and a return would be unlikely to be seen as unusual or attract attention from authorities.[17]
[17] DFAT COUNTRY INFORMATION REPORT FIJI 20 May 2022.
When discussed at hearing, the applicant claimed to fear being on a list of persons of adverse interest to the authorities in Fiji, principally for reason of the 2000 murder incident and the fire at the service station (both discussed above). However, based on the accepted evidence herein and the country information, the Tribunal is not satisfied the applicant has a real chance of suffering serious or significant harm in Fiji, if returned as a failed asylum seeker, almost 7 years after he last departed Fiji.
For the reasons given above, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a). Having concluded 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). For the same reasons, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion 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.
Mr S Norman
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K     Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L     Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 1926

6 March 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice