2312123 (Refugee)

[2024] AATA 2265

2312123 (Refugee) [2024] AATA 2265 (26 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2312123

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Jennifer Ermert

DATE:26 February 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 26 February 2024 at 12:39pm

CATCHWORDS
REFUGEE – protection visa – Fiji – police mistreatment and abuse – attacked without provocation – random attack – effective state protection – racial discrimination – indigenous Fijian (iTaukei) – abolition of the Great Council of Chiefs (GCC) – rejection for employment extension – political opinion – brother’s conviction and imprisonment for sedition – religion – Christian – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 August 2023 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act). That decision was made without inviting the applicants to an interview.

2. The applicants, who claim to citizens of Fiji, applied for the visas on 14 January 2021. The delegate refused to grant the applicants protection visas on the basis they are not persons in respect of whom Australia has protection obligations under s 36(2) of the Act.

3. The applicants appeared before the Tribunal on 13 February 2024 to give evidence and present arguments. Only [Applicant 1] gave evidence, [Applicant 2] having elected not to give evidence because she does not have protection claims of her own and is seeking to be granted a protection visa on the basis of being a member of the same family unit as Applicant 1.  

4. The Tribunal hearing was conducted without the assistance of an interpreter as Applicant 1 has a good command of the English language, and he had indicated in the protection visa application that he would not require an interpreter should he be invited to an interview.  

5. The applicants are not represented in relation to the review.  

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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).

4. 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.

5. 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

1. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue is this case is whether or not the applicants are persons in respect of whom Australia has protection obligations under s 36(2) of the Act.

Identity and country of nationality

1. The applicants claim to be citizens of Fiji. Both applicants provided a copy of their Fijian passports, Fijian birth certificates and Fijian voter identity cards to the Department of Home Affairs (‘the Department’).  Applicant 1 also provided a copy of his Fijian driver’s licence as well as a copy of his Australian driver’s licence. 

2. In the absence of evidence that the applicants have given false identities, the Department has accepted on the identity documents provided that the applicants are nationals of Fiji as claimed, and has considered and assessed the applicants’ protection claims against Fiji in relation to s 36(2)(a) and s 36(2)(aa) of the Act.

3. The Tribunal has had regard to the aforementioned identity documents on the applicants’ departmental file.  The Tribunal has also had regard to the original of the applicants’ Fijian passports which were sighted at the hearing.  In the absence of contrary evidence, the Tribunal also accepts the applicants are citizens of Fiji.  Therefore, the Tribunal finds that Fiji is the applicants’ country of reference for the purposes of s 36(2)(a) and s 36(2)(aa) of the Act.

Immigration history and protection claims

1. The applicants are indigenous (‘i-taukei’) Fijians. They have 3 sons and 1 daughter.  Their eldest son is a permanent resident of Australia, while their other two sons are in Fiji (although the youngest son is currently visiting in Australia).  Their daughter is in Australia and has applied for a protection visa which is presently under review by the Tribunal (Applicant 1 attended the daughter’s hearing and gave evidence as a witness). 

2. The applicants last arrived in Australia on [in] March 2020 on a Class FA Subclass 600 Visitor visa, and they have not departed since. On 13 January 2021, the applicants applied for the grant of a protection visa.

3. Prior to their last arrival in Australia, the applicants have both travelled to Australia on a couple of occasions as follows:

[Applicant 1]	[Applicant 2]
[Date]/02/2018 arrived on FA-600 Visitor visa.	[Date]/02/2018 arrived on FA-600 Visitor visa.
[Date]/04/2018 departed Australia.	[Date]/03/2018 departed Australia.
[Date]/08/2019 arrived on FA-600 Visitor visa.	[Date]/08/2019 arrived on FA-600 Visitor visa.
[Date]08/2019 departed Australia.	[Date]/08/2019 departed Australia.

1. Applicant 1’s protection claims (Applicant 2 having no protection claims of her own) as articulated in the protection visa application, were that:

   ·He and his wife came to Australia for holiday but were forced to extend their stay in Australia as the result of the COVID-19 pandemic. During this time they witnessed the financial hardship of their family back home in Fiji which made them decide to stay in Australia, because if they found employment here they would be able to support their family better.

   ·He and his people were discriminated against and silenced for speaking up for their indigenous rights and he was verbally threatened by supporters of the (Bainimarama) government. The 2006 coup in Fiji was destructive, and the policies and draconian laws implemented by the government were used to suppress the voice of indigenous Fijians. 

2. Subsequently, Applicant 1 made further submissions which included additional protection claims.  In summary, he was threatened, assaulted, and pushed over the sea-wall by two unknown men while walking along the seaside promenade. Although the matter was reported to the police, the two men remain at large.  Furthermore, Fiji has a military dictatorship with no human rights. There is also racial discrimination including in employment, where indigenous Fijian are being replaced by inexperienced and younger generation of Indo-Fijians.

3. The delegate refused to grant protection visas to the applicants because the delegate was not satisfied that the applicants faced a real chance of serious harm in Fiji for reasons of their race/ indigenous Fijian ethnicity or political opinion. The delegate also found that there is effective state protection available to the applicants. The delegate also found the applicants’ fear of economic harm does not relate to any one of the reasons in s 5J(1)(a).   

Pre-hearing submissions

1. The applicants were invited to attend a hearing with the Tribunal in connection with the review.  Prior to the hearing, Applicant 1 provided statements and documentary material consistent with, and in support of, his earlier protection claims, such as excerpts of the UN Declaration on the Rights of Indigenous People, news articles, character reference, and a letter of support from his eldest Australian permanent resident son.

2. The Tribunal does not list in full here the statements and documentary material that Applicant 1 has submitted and relies on as they are numerous.  Importantly, however, the Tribunal notes that Applicant 1 has introduced two new claims. The first claim relates to fear of harm arising from his second son’s violent treatment and abuse at the hands of the Fijian police during his son’s questioning detention in 2016 after his son was arrested on suspicion of looting a supermarket damaged by Cyclone Winston. The second claim relates to fear of possible harm arising from his religion as a Christian.  

3. On the basis of the protection visa application, and on the basis of the statements and documentary material that Applicant 1 submitted before the hearing, the Tribunal has summarised Applicant 1’s overall protection claims as follows:

   ·He fears harm from the Fijian police because whilst he has not personally experienced anything negative from the Fijian police, his second son’s 2016 experience of violence and abuse while in police custody makes him apprehensive of the police.

   ·He fears the possibility of further harm from the two unknown men who threatened, assaulted, and pushed him over the sea-wall into the sea in 2017, because those two men are still at large despite Applicant 1 making a statement of the incident to the police.  

   ·He fears racially-based harm and discrimination which arise from the general but systematic erosion of indigenous Fijian rights, culture and identity instigated under the previous (Bainimarama) government through instruments such as the 2013 Constitution and the abolition of the Great Council of Chiefs (GCC). He had been verbally threatened for speaking up for indigenous rights.

   ·Despite his extensive experience in [industry] after almost 30 years of employment with [Employer 1], his application to extend his employment on a contractual basis with [Employer 1] following his retirement was rejected because of racial discrimination, and [Employer 1] filled roles with younger and inexperienced Indo-Fijians instead. 

   ·As well as racial discrimination, the people who may cause him harm will probably target him because of his religion.

Evidence at hearing

1. Applicant 1 reiterated at the hearing that he and his wife did not come to Australia merely to visit their Australian permanent resident son, but they also came because they wanted to seek Australia’s protection. 

2. Applicant 1 claimed that although the 2013 Constitution implemented by the Bainimarama government purports to apply equally to all Fijians, it in fact operates to disproportionately affect and discriminate against indigenous Fijians. For example, there are laws that decree minerals and other resources found beneath the land belong to the government rather than the owners of the land, and since the majority of land in Fiji is owned by indigenous Fijians, such laws have the effect of discriminating against indigenous Fijians by disproportionately affecting indigenous Fijians more than other Fijians.

3. Indigenous institutions such as the GCC were also removed without the knowledge and consent of the indigenous Fijian population that they represented. Although the current government of Fiji has reinstated the GCC, Applicant 1 claimed that unless and until the Constitution itself is amended, the GCC would not be given the authority or opportunity to effectively represent indigenous Fijian rights, and racial discrimination against indigenous Fijians would continue.

4. When asked if he had personally experienced any serious harm as a result of the claimed persecution of or discrimination against indigenous Fijians, Applicant 1 said “No” but claimed that one of his brothers suffered such persecution when he was convicted and imprisoned for two years for his involvement in the Nadroga-Navosa Christian State sedition case, even though all that his brother did was participate in a peaceful protest against the former government in connection with indigenous right.  

5. Applicant 1 claimed he was however racially discriminated against in employment. After he retired from [Employer 1] in [year] at the compulsory retirement age of 55, he applied to extend his employment on a contractual basis. His application was refused despite his seniority and extensive work experience in the company, while at the same time the company hired many Indo-Fijian staff particularly those from companies like [Company 1], even though they had little knowledge or understanding of [the industry].

6. When asked if he had ever experienced any harm as a result of his religious beliefs as a Christian, Applicant 1 said “No”. When asked if he anticipated experiencing any future harm because of his Christianity if he were to return to Fiji, Applicant 1 again said “No”, and confirmed that his fears of harm are primarily on the basis of racial discrimination. He also confirmed that he has not experienced any harm arising from his political opinion, the only relevant incident being that involving his brother’s sedition conviction and imprisonment.

7. The Tribunal asked Applicant 1 why he fears future harm in Fiji arising from his unprovoked attack in 2017 and his second son’s abuse by police in 2016, given the lengthy passage of time, and given there is no particular reason to believe why any harm would befall him if he was simply going about his daily business without putting himself in potentially risky situations such as out walking late at night. Applicant 1 said the police took one of his attackers back to the station for questioning but released him without charge or subsequent follow-up, and both his attackers are still at large.  He also fears the police because of what happened to his son which is known to have also happened to others, and he could suffer a similar fate should he become entangled with the police for any reason in the future.

8. The Tribunal asked Applicant 1 for an explanation of the delay in applying for the protection visa in 2021.  Given all the circumstances and the events which gave rise to his fears of persecution predated his arrivals in Australia in 2018, 2019, and most recently in 2020, he could have applied for a protection visa then but did not.

9. In response, Applicant 1 said that he did not seek protection in 2018 and 2019 because he was still gainfully employed by [Employer 1] at the time. It was only after his arrival with his wife Applicant 2 in 2020 that they decided to seek protection.  However, they did not immediately do so because they were pre-occupied with trying to survive in Australia without any income during the COVID-19 lockdown, in circumstances where their eldest son’s fiancé did not welcome their extended stay in her house, and in circumstances where they also had to financially support their remaining children in Fiji who were similarly struggling in the pandemic out of Applicant 1’s superannuation savings. It was only after relief came when Applicant 1 and his wife obtained work rights on their bridging visa enabling them to earn an income, and when they managed to get alternative accommodation with a Fijian acquaintance, that they were able to turn their mind to applying for protection visas.

REASONS FOR THE TRIBUNAL’S DECISION

1. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed because the applicants do not meet any of the criteria in s 36(2).

Assessment of refugee status

1. To be eligible for the grant of a protection visa on the basis of satisfying the refugee criterion in s 36(2)(a), Applicant 1 must show he has a well-founded fear of persecution in Fiji, and owing to that fear, is unable or unwilling to avail himself of the protection of Fiji. This requires an assessment of whether there is a real chance Applicant 1 would be persecuted because of his race, religion, nationality, membership of a particular social group or political opinion.

2. 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.

Claimed fear of police

1. Having considered Applicant 1’s evidence, the Tribunal finds Applicant 1 to be a witness of truth whose claims with respect to his second son’s violent mistreatment and abuses at the hands of the police during his questioning detention are consistent with country information available from the DFAT Country Information Report from 20 May 2022, which indicates that:

   “Police violence is often reported in the media and by human rights groups. In-country sources told DFAT that assaults in custody occur, and that monitoring and accountability systems to prevent such assaults are either not implemented or not implemented effectively. The situation is worse outside of cities. Convictions often rely on confessions, which may be extracted through beatings. DFAT understands that the situation is improving with courts dismissing cases that rely on evidence obtained through violence.

   According to a 2020 article in The Guardian, the acting Commissioner of Police condemned ‘indiscipline’ among the ranks and ordered an investigation into the death of 46-year-old Mesake Sinu, who police claimed jumped to his death from a second-storey window. Critics allege that police beat Sinu to death. In the same article, The Guardian reported figures it had obtained showing that 400 charges of ‘serious violence’ were laid against police between May 2015 and April 2020, which included allegations of rape and homicide.

   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.

   Five police officers were charged in 2020 after they threw a villager off a bridge. Four officers were allegedly involved in the assault and one other attempted to interfere with witnesses. In April of the same year, an opposition member of Parliament was arrested after he posted a video on Facebook in which he spoke about the incident.

   A viral video published on social media in May 2021 showed two police officers holding a man’s head to the ground, with his arms held behind his back, while pepper spray was sprayed in his eyes. The man was wanted for possession of marijuana and had allegedly resisted arrest.

   With the increase in the number of people with smartphones there has been an increase of similar videos posted to video-sharing platforms such as YouTube. Outside of prominent examples such as those mentioned above, in-country sources told DFAT that police violence is much less likely to occur in public, largely because people will film such events and the media will report on them.”[1]

   [1] DFAT Country Information Report Fiji, Department of Foreign Affairs and Trade, 20 May 2022, p.23, [5.11] – [5.16].

1. The Tribunal has had regard to the detailed statement made by Applicant 1’s second son recounting his abuses by the police whilst in custody, as well as a letter from the son’s lawyer in Fiji confirming that the son’s case contesting the admissibility of evidence against him is ongoing.  The Tribunal accepts Applicant 1’s second son was indeed abused and mistreated by the police as claimed.

2. However, the Tribunal does not accept that his son’s past abuse and mistreatment by the police indicates there is a real chance that Applicant 1 would suffer similar harm.  In MIEA v Guo (1997) 191 CLR 559, the High Court observed at [574] and [575]:

   “Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability ‑ high or low ‑ of their recurrence.

   In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.”

3. Despite his second son’s experience, Applicant 1 himself has not encountered any abuse or mistreatment from the Fijian police in the past. The Tribunal has not been given any reason to believe that he (or indeed anyone else in his family) has been implicated merely for being related to his second son.  The Tribunal has not been given any reason to believe why he would be at risk of police abuse or mistreatment should he return to Fiji, if he simply went about his daily business as he had done in the past without modifying his behaviour or otherwise engaging in dubious activities.

4. Therefore, whilst the Tribunal accepts that Applicant 1 has a genuinely held subjective fear of the risk of mistreatment should he ever find himself entangled with the police, the Tribunal does not find such entanglement likely, in circumstances where there is nothing that would cause the Tribunal to believe that Applicant 1 would conduct himself in an unlawful or suspicious manner as to attract police attention.  It follows, therefore, that there is not a real chance that abuse or mistreatment of Applicant 1 in police custody would occur in the reasonably future.

Claimed fear of his attackers

1. As for Applicant 1’s claimed fear of harm from his 2017 attackers, the Tribunal accepts based on his consistent evidence throughout and based on the copy of his statement to the police that he was set upon without provocation, and that he was threatened, assaulted and pushed over the sea-wall. The Tribunal accepts that he fell into the sea and was lucky not to hit his head on the boulders, and that the company mobile phone which was on his person was damaged from getting wet. The Tribunal accepts that Applicant 1 was and remains perplexed as to why the police only took one of the attackers in for questioning, and that he is disappointed the attacker was released and no further action was taken in relation to either of the attackers.  The Tribunal also accepts that because his attackers were not arrested and indicted by the police over the attack and are at large, Applicant 1 has a subjective fear of being harmed by his attackers.

2. Notwithstanding this, the Tribunal finds there is not a real chance that Applicant 1 would be seriously harmed by his former attackers in the reasonably foreseeable future should he return to Fiji.  The attack was random rather than targeted, and Applicant 1 and his attackers were not known to each other. Accordingly, there is no reason for the Tribunal to believe why those attackers would seek out Applicant 1 in order to cause him further harm in the future.  Importantly, the Tribunal notes there had been no further incidents of harm from those attackers to Applicant 1 in the 2.5+ years between the date of the 2017 attack and when Applicant 1 last arrived in Australia in 2020. Given the further passage of time since, there is no reason for the Tribunal to think why this might change should Applicant 1 return to Fiji.

3. Even if the Tribunal was wrong in finding there is not a real chance that Applicant 1 would be harmed by his attackers in 2017, the Tribunal considers that there is effective state protection available notwithstanding the police’s inexplicable lack of action in respect of his attackers, and notwithstanding his misgivings about the police because of the way they mistreated his second son.  DFAT’s Country Information Report from 20 May 2022 states:

   “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’.

   Police are generally well-resourced by the Government and receive funding and training from overseas aid partners. The police are, in general, disciplined. Policing is conducted on a community policing model and police are generally actively engaged with the communities they serve.

   Corruption in the FPF is reported, but DFAT understands that it is not widespread. There are some allegations of corruption and DFAT is aware of pockets of corruption that have later been exposed and investigated. Complaints about the FPF are made to the Human Rights and Anti-Discrimination Commission.

   Policing in outer islands and more remote places is more difficult because of the greater influence that the chief-based hierarchy has in the outer regions. Police are generally not deployed to their home communities to avoid conflict with traditional hierarchies.

   The Fiji Police Force overall has the capacity to protect individuals from societal harassment, discrimination, and violence, and police are usually effective in carrying out their role in day-to-day crime detection, investigation and prevention.”[2]

   [2] DFAT Country Information Report Fiji, Department of Foreign Affairs and Trade, 20 May 2022, p.22-23, [5.6] – [5.10].

4. As also discussed with Applicant 1 at the hearing, to the extent that there is a residual concern about the professionalism and the conduct of the Fijian police, both NZ and Australia have provided capability development support to the Fijian police force to improve its accountability and performance.[3] 

   [3] United Nations Development Program, Fiji Police Force Support Project; Australian Federal Police media release, ‘AFP supports safety and security of Pacific region in 2023’, 20 December 2023

5. The Tribunal is satisfied there is no real chance that Applicant 1 would be seriously harmed by his unknown attackers from 2017 in the reasonably foreseeable future, if he were to return to Fiji.

Racial discrimination and political opinion

1. The DFAT Country Information Report from 20 May 2022 states:

   “Parallel ethnic communities have a long history in Fiji. The colonial government encouraged the separate development of ethnic communities that lived, worshipped and were educated separately. Today, some separation between the communities continues but it is not officially mandated. For example, Indo-Fijians tend to make up the majority of the business and farming sectors, but iTaukei Fijians tend to make up the majority of the security forces and the public service.

   Since 2009, the Government has undertaken a program of reform aimed at reducing the role of ethnicity in Fiji’s politics. Through mechanisms such as the 2013 Constitution, the Government has reformed or removed racial aspects of the political system, including by abolishing separate ethnic-based voter rolls.

   Race is an important factor in Fijian society, but ongoing government integration efforts are having some effect. Some low-level social discrimination continues, with the use of racist stereotypes common among both groups. The Government has taken significant steps to de-segregate the community in day-to-day life. Schools were required to stop calling themselves ‘Indian’ or ‘Fijian’, and the 2013 Constitution requires Hindi to be taught in primary schools. Diwali and the Prophet Mohammed’s Birthday are both national public holidays alongside Christian holidays like Christmas and Easter. The Public Order Act was amended in 2012 to prohibit incitement of racial violence, and the 2013 Constitution prohibits discrimination based on race or ethnicity and applies to all ‘Fijians’ regardless of race.

   Some iTaukei feel a sense of economic or political marginalisation. iTaukei are more likely to experience poverty than are Indo-Fijians, but there are rich and poor among both groups.

   iTaukei are the majority ethnic group in Fiji and enjoy significant social, economic and political capital. Overall, DFAT assesses there is no official discrimination against indigenous Fijians. Some low-level societal discrimination exists that affects most Fijians as some people among both major ethnic groups perpetuate racist stereotypes against the other.”[4]

   [4] DFAT Country Information Report Fiji, Department of Foreign Affairs and Trade, 20 May 2022, p.11-12, [3.2] – [3.3], [3.5] and [3.9]-[3.10].

2. Applicant 1 has not experienced any serious harm or discrimination in Fiji because of his race/ ethnicity as an indigenous Fijian or because of his political opinion. His claims of racial discrimination were based on his distrust of the 2013 Constitution which he claimed has a discriminatory effect on indigenous Fijians despite its purported application to all Fijians, citing as examples the purportedly unfair allocation of minerals and resources found beneath the land which is mostly indigenous Fijian-owned; the abolition of the GCC; his brother’s conviction and imprisonment for sedition for participating in a peaceful protest about indigenous rights; and his own rejection when he applied for an extension of his employment with the [Employer 1] on a contractual basis following his retirement.

3. The Tribunal acknowledges Applicant 1’s distrust of the 2013 Constitution and his perception of its discriminatory effect in relation to indigenous Fijians despite its universal application. However, that does not mean the 2013 Constitution is in fact discriminatory. The Tribunal also accepts that the abolition of the GCC was seen by many indigenous Fijians like Applicant 1 as an attempt by the former Bainimarama government to remove indigenous representation in Fiji’s political decision-making, but notes it was reinstated in May 2023 by the current government of Fiji, as raised with Applicant 1 at the hearing. The Tribunal notes Applicant 1’s cynicism about the utility of reinstating the GCC without amendment to the Constitution, however the Tribunal does not accept that not amending the Constitution per se is sufficient to demonstrate racial discrimination against indigenous Fijians generally and against Applicant 1 specifically.

4. As for his brother’s conviction and imprisonment for sedition which Applicant 1 claimed is another example of racial discrimination against indigenous Fijians, the Tribunal accepts his brother was indeed convicted and imprisoned as claimed based on corroborative country information.[5]  However, the Tribunal does not find this to be demonstrative of discrimination against indigenous Fijians, since the former Bainimarama government targeted and suppressed anyone who was seen to challenge or undermine its authority or legitimacy, irrespective of their ethnicity, with those that had high public profiles at particular risk.[6]  In any event, Applicant 1 has not presented any evidence to suggest that he was implicated in any way by his brother’s conviction and imprisonment, and the Tribunal finds there is not a real chance that he would be implicated in the future.

   [5] Judgment of Sunil Sharma J in the matter of State v Ratu Inoke Tasere, Criminal Case No. HAC 140 of 2015, High Court of Fiji, 9 November 2017; ‘14 guilty of sedition charge’, Felix Chaudhary, The Fiji Times, 10 November 2017; ‘Sentencing: Nadroga Navosa 14 jailed for sedition’, Charles Chambers, Fiji Sun, 30 November 2017.

   [6] ‘Renowned Fijian academic dies in exile’, RNZ, 25 December 2021; ‘Fiji deports Australian university professor during ‘incredibly damaging’ day for Pacific unity’, Liam Fox, ABC News, 4 February 2021.

5. The Tribunal also does not accept Applicant 1’s claim that his rejection for employment extension on a contractual basis with [Employer 1] following his retirement was racially-based. It may well be the case that many of the external recruits were Indo-Fijians and that most lacked the level of knowledge and experience that Applicant 1 possessed about [the industry], the latter is hardly surprising given Applicant 1 had worked with the [Employer 1] for almost 30 years before he retired.  However, Applicant 1’s evidence suggests that the external recruits, in particular those from companies like [Company 1], were recruited because of their perceived ability and experience (from [Company 1] etc.) which would be helpful in uplifting the performance and profitability of [Employer 1] which was struggling, rather than because of their ethnicity.  

6. Therefore, the Tribunal finds there is not a real chance that Applicant 1 would suffer serious harm because of his indigenous Fijian ethnicity, if he were to return to Fiji. Nor is there a real chance that Applicant 1 would be seriously harmed because of his political opinion critical of the former Bainimarama government, particularly in relation to the purportedly discriminatory effect of the 2013 Constitution and the removal of other instrumentalities important to indigenous Fijians, now or in the reasonably foreseeable future.

Claims based on religion

1. In one of the supporting documents that Applicant 1 submitted pre-hearing, he indicated that the people who might cause him harm because of racial discrimination would probably also target him because of his religion. 

2. The Tribunal asked Applicant 1 whether he had ever experienced any harm in Fiji because of his Christian beliefs and practices, to which Applicant 1 said “No”. The Tribunal also asked Applicant 1 whether he anticipated experiencing any future harm because of his Christianity if he were to return to Fiji, to which Applicant again said “No”.

3. Given Applicant 1’s responses, and in the absence of any information or evidence to the contrary, the Tribunal finds there is not a real chance that Applicant 1 would suffer serious harm in the reasonably foreseeable future because of his religion, if he were to return to Fiji.

Other general claims

1. Finally, the Tribunal has had regard to Applicant 1’s claims about the destructiveness of the 2006 coup, the military dictatorship in Fiji and lack of human rights, and the poor economic situation in Fiji (especially since COVID-19).  The Tribunal finds those claims to be generalised claims which on their own do not demonstrate a real chance of serious harm to Applicant 1 for reasons of his race, religion, nationality, membership of a particular social group or political opinion.

2. In conclusion, having considered Applicant 1’s claims and evidence individually and cumulatively, the Tribunal finds there is not a real chance that he would suffer serious harm, now or in the reasonably foreseeable future, if he were to return to Fiji.  The Tribunal finds that Applicant 1 does not meet the definition of refugee, and having so determined, it follows that Applicant 1 does not meet the criterion in s 36(2)(a) for the grant of a protection visa.

Complementary protection assessment

1. Having concluded that the Applicant 1 does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered whether Applicant 1’s circumstances are such as to give the Tribunal substantial grounds to believe that there is a real risk that he would suffer significant harm as a necessary and foreseeable consequence of his removal from Australia to Fiji. 

2. In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test as it applies to complementary protection imposes the same standard as the ‘real chance’ test applicable to the assessment of the refugee criterion in s 36(2)(a).

3. For the same reasons that the Tribunal does not accept there is a real chance Applicant 1 would be persecuted if he returned to Fiji for the reasons he advanced, such as risk of harm by his attackers from the 2017 incident or his ethnicity as an indigenous Fijian, the Tribunal does not accept there are substantial grounds for it to believe that, as a necessary and foreseeable consequence of Applicant 1 being removed from Australia to Fiji, there is a real risk (that Applicant 1 would suffer significant harm).  Having found that there is not such a real risk, it is not necessary for the Tribunal to assess whether the harm feared is significant harm within the meaning of s 36(2A).

4. Therefore, the Tribunal finds Applicant 1 is not a person in respect of whom Australia has protection obligations on the basis of complementary protection under s 36(2)(aa) of the Act.

Other criteria – member of family unit

1. There is no evidence before the Tribunal to suggest that Applicant 1 is a member of the same family unit as another person who satisfies s 36(2)(a) or (aa) and who holds a protection visa of the same class as that applied for by him. Therefore, the Tribunal finds that Applicant 1 does not satisfy s 36(2)(b) or (c) of the Act. 

2. Applicant 2 claims to be a member of the same family unit as Applicant 1.  Given Applicant 1 has been found not to satisfy s 36(2)(a) or s 36(2)(aa), and given there is no evidence before the Tribunal to suggest that Applicant 2 is a member of the same family unit of any other person who satisfies s 36(2)(a) or s 36(2)(aa) and holds a protection visa of the same class, the Tribunal finds that Applicant 2 also does not satisfy s 36(2)(b) or (c) of the Act.

DECISION

1. The Tribunal affirms the decision not to grant the applicants protection visas.

Jennifer Ermert
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.

…

1. Protection visas – criteria provided for by this Act

…

1. 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.

…