2313638 (Refugee)

[2024] AATA 2238

2313638 (Refugee) [2024] AATA 2238 (15 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2313638

COUNTRY OF REFERENCE:                   Fiji

MEMBER:L Symons

DATE:15 March 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 15 March 2024 at 4:29pm

CATCHWORDS
REFUGEE – protection visa – Fiji – political opinion and freedom of speech, bullying and peer pressure, and economic conditions – targeted as informer against criminal gang – physically and psychologically abused and threatened by ex-wife and family – political opinion expressed only to family and no harm – change of government – low-level anti-social behaviour and petty crime affects all Fijians – work and financial support for mother, sibling and child – delay in applying for protection – applied because cheaper than partner visa application – new relationship and baby – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65, 424AA
Migration Regulations 1994 (Cth), 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 dependants.

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 24 August 2023 to refuse to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of Fiji, first arrived in Australia [in] November 2020 as the holder of a [Specified] visa. This visa was valid until 25 November 2023.

3. On 22 March 2023, the applicant applied to the Department of Home Affairs (the Department) for a Protection (Class XA) (Subclass 866) visa. On 20 April 2023, he was granted an associated Bridging visa. On 24 August 2023, the Department refused to grant him a Protection visa on the basis that he is not a person in respect of whom Australia has protection obligations. On 4 September 2023, he applied to the Tribunal for a review of that decision.

4. The applicant appeared before the Tribunal on 30 November 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A], his de facto partner.

5. The applicant was not represented in relation to this matter.

6. The issues that arise on review are whether the applicant is owed Australia’s protection under the refugee criterion or under the complementary protection criterion.

   CRITERIA FOR A PROTECTION VISA

7. 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.

8. 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.

9. 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).

10. 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.

11. 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

12. 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 AND FINDINGS

13. The applicant’s claims in his application for a Protection visa, dated 22 March 2023, are summarised as follows:

    ·He was born on [Date] at [Town] in Fiji. He is a citizen of Fiji.

    ·He left his country because of his opinion of the government and to flee from bullying and peer pressure from bad company.

    ·He also left Fiji in search of better economic stability and freedom of speech.

    ·He was targeted for being a whistle-blower in relation to a drug-related gang and robbers.

    ·He was threatened and was physically and psychologically abused.

    ·He did not seek help within Fiji because he feared retaliation and he thinks that the authorities do not have the resources to protect him.

    ·He cannot move to another area within Fiji because he has nowhere to go and has no support from the government.

    ·If he returns to Fiji, he will suffer the same abuse by ring leaders as he did before.

14. The applicant provided the Department with the bio data page of his Fijian passport issued [in] 2017 and valid [until] 2027.

15. On 22 March 2023, the Department wrote to the applicant, acknowledged receipt of a valid application, advised him that he could provide additional information relating to his claims and how he could provide this. The letter also informed him that the decision on his application could be made without another opportunity for him to present any further information. He did not provide any further information and his application for a Protection visa was refused on 1 September 2023.

16. The applicant has file with the Tribunal a copy of the Department’s Decision Record dated 24 August 2023.

    Receiving Country

17. The applicant claims to be a citizen of Fiji and has provided a copy of his Fijian passport to the Department. In the absence of any evidence to the contrary, the Tribunal finds that he is a citizen of Fiji. The Tribunal finds that Fiji is the receiving country for the purpose of assessing his claims for protection under the refugee criterion and the complementary protection criterion.

    Third Country Protection

18. The Tribunal finds that the applicant is outside his country of nationality. There is no evidence before the Tribunal to suggest that he has the right to enter and reside in any country other than his country of nationality.

    Assessment of Claims

19. The applicant gave evidence that his application for a Protection visa was prepared by him. He did not get any assistance to prepare his visa application. He obtained immigration advice from an immigration lawyer in 2022 but the lawyer did not prepare his visa application. Everything in his visa application is true and correct. He is satisfied that his visa application is accurate and complete. Other than for having a new relationship and a baby, there have been no other changes in his circumstances since he filed his visa application.

20. During the hearing, the Tribunal discussed with the applicant his background, his family, his education, his employment, where he lived in Fiji, why he left Fiji and why he fears returning to Fiji. The Tribunal found his oral evidence to generally be honest and straightforward. However, there were significant inconsistencies between his written claims for protection and his oral evidence. His conduct was also not consistent with his written claims. This raised doubts that he prepared his application for a Protection visa. However, his evidence is that he prepared his visa application without any assistance. The Tribunal finds that his claims for protection are not credible for the following reasons:

21. First, in his application for a Protection visa, the applicant claimed that some of the reasons why he left Fiji was because of his opinion of the government and in search of freedom of speech. The Tribunal discussed these claims with him. He stated that he is a Fijian but he does not trust his government no matter how good they say it is in the media. He is [Age] years old, has lived in Fiji and knows how they are. They say one thing but how Fijians live is different. Former Fijian Prime Minister Frank Bainimarama was leading their country but was not doing it in the right way. The government and the Constitution have now changed. This does not guarantee that the lives of people in Fiji will change.

22. The applicant stated that when former Fijian Prime Minister Frank Bainimarama was leading the government whatever he did was wrong. The way he got his position and the way he ran the country was wrong. That is how he feels. When asked whether he expressed these views to anyone, he responded maybe to family members. Anyone who spoke out was either run around the ground or he shut up anyone who spoke out. He did not say anything about Mr Bainimarama to anyone other than family members. The Tribunal asked him whether that is an issue anymore now that the government has changed. He responded that it does not guarantee that the environment has changed. It is like him changing his clothes but he is still the same person. The government has changed but it is not one hundred percent safe.  

23. The Tribunal asked the applicant to explain what he meant by his claim that he left Fiji in search of freedom of speech. He responded that in Australia citizens can speak to the government if they have a concern. In Fiji, you have to go through a lot of processes. By the time you reach the person (you wish to speak to) it is a couple of weeks. In Australia, you  can go straight through (to the person you wish to speak to). In Fiji, it is Fiji time and everything is so slow.

24. The Tribunal asked the applicant whether he had been unable to speak freely in Fiji. He responded that they normally have people stealing clothes off the line. There are lots of complaints about this but the government is not hearing what the people are saying. This is happening but they are not paying attention to it. They just say hang your clothes inside the house and are not solving the problem.

25. The applicant's evidence indicates that he has a negative opinion of former Prime Minister Frank Bainimarama and distrusted the government that he led. His evidence is that he may have discussed his opinions with family members. He has not claimed that he suffered any harm as a result of this or that he fears that he may suffer harm for this reason if he returns to Fiji. He has not claimed that he is a member of a political party and has been politically active in Fiji or in Australia. His explanation for why he claimed in his application for a Protection visa that he left Fiji in search of freedom of speech had nothing to do with freedom of speech. It was a complaint about the lack of efficiency in the Fijian bureaucracy in comparison with Australia.

26. In any event, the country information indicates that, following a General Election in Fiji in December 2022, former Prime Minister Frank Bainimarama and his Fiji First party lost the election and a new coalition government was formed on 20 December 2022 with Mr Sitiveni Rabuka being elected the new Prime Minister.[1]

    [1] Fiji has new government after three parties form coalition, Reuters, 20 December 2022. (Fiji has new government after three parties form coalition | Reuters)

27. In view of the applicant’s evidence above and his evidence herein, the Tribunal does not accept that he left Fiji because of his opinion of the government and in search of freedom of speech.

28. Second, in his application for a Protection visa, the applicant claimed that some of the reasons why he left Fiji was to flee from bullying and peer pressure from bad company. The Tribunal discussed these claims with him. He stated that the law in Australia “is firm”. In Fiji, one can see kids smoking weed. The Police go up and down and see them but do not do anything about it. They do not send them home or to school. He grew up in a neighbourhood that is known for bad company. People used weed or alcohol, walked on the streets and had random fights. It was an uncivilised place to live in or have a family.

29. The Tribunal asked the applicant whether he was ever bullied. He responded that on one occasion, when he was a teenager about 19 years old, he was walking down the street to see some of his friends when there were two or three guys on the street who asked him for $2.00 or $3.00. He was a small boy, could not do anything and they could have hurt him. He gave them the money. They happened twice. The second occasion was when he was 21 years old. It has not happened since then. He did not report these incidents to the Police.

30. The Tribunal asked the applicant to explain what he meant by peer pressure. He responded that he was the only boy in the house. He would hang out with friends. The boys in the street did drugs and they would lead him to a path he felt uncomfortable with. What his parents taught him and what the street taught him were different. He would go with boys who smoked weed. They would bring a bong with them. People saw them and thought they were dangerous. When asked how old he was when his happened, he responded that he was in his twenties. When asked whether these people were still his friends, he responded no, not anymore.

31. The Tribunal noted that the two incidents the applicant referred to occurred when he was 19 years and 21 years respectively. He lived in Fiji for many years thereafter and nothing further happened. He responded that he spent his childhood in that area and knows how things work. He does not think that area will every change. He has asked his mother about the area and she has told him that it is the same. The boys from upstairs come down. They get drunk and walk down the street screaming. Nothing has changed. When they hear the siren from the Police car they cross the neighbourhood. It is the same old thing. The government has changed. He wants to feel safe in his country. It is a nice place but it is not that good. Most people do not know about it. He does not want the next generation to go through what he has gone through.

32. The Tribunal asked the applicant whether he thought he would have a problem now because of the incidents that occurred when he was 19 years and 21 year old. He responded that he has been keeping up on social media. A pack of marijuana was found in an area close to where he lived. It is still there. People have the wrong mindset. Everyone wants to fight all the time. 

33. The Tribunal is not convinced that the applicant’s experiences of bullying or peer pressure as a young person growing up in Fiji influenced his decision to leave Fiji. The Tribunal does not accept that he left Fiji to flee from bullying and peer pressure from bad company. The Tribunal is not satisfied that boys getting drunk or drug affected and walking down the street screaming puts him at risk of serious harm or significant harm if he returns to Fiji now or in the foreseeable future.

34. Third, in his application for a Protection visa, the applicant claimed that he was targeted for being a whistle blower in relation to a drug related gang and robbers. The Tribunal discussed this claim with him. He stated that he reported an incident. They are not a gang like in Australia. It is different. They are a group of people who are violent and do unlawful things. He tried to report them but it was the wrong process. They (the Police) said he should just file a report.

35. The Tribunal asked the applicant to explain who these people were and why he tried to  report them. He responded that there were crossroads close to where he lived. He saw people running from the Police or doing something in a house close to where he lived. He went there and heard a man calling for help. He went to the Police to give them a description of the man he saw running away. The Police took a statement from him. He did not feel they were doing their job and treating this as a serious matter. This happened in November 2017. He had been drinking kava that night. He was worried they may talk about it and people would then know it was him. He does not care if they come after him but cares about his family. When asked if anything else happened after that, he responded not that he is aware of. 

36. The Tribunal clarified with the applicant that nothing else happened as far as the Police were concerns and nothing else happened as far as he was concerned. He agreed. When asked why he claimed that he was targeted because he was a whistle blower, he responded that there are a lot of bad people in the area and they socialise with the Police. From then on he had a feeling that boys were going up and down the street they lived on. This was new. He did not see these people and then he saw them and knew that something was up. The Tribunal asked him whether, other than the boys walking up and down the street, anything else happen. He responded that they sat down and had a cigarette. They knew they were looking for him. They said some boys are looking for you. Maybe it was because of what you did the other day. He did not report this to the Police. After that he kept low. If someone left, he was not going to bother. He just worried about his own family.

37. The applicant’s claims centre around him giving the Police the description of a man he saw running away after he heard a man screaming for help. This happened on a night in November 2017 when he had been drinking kava. He continued to live in Fiji until he came to Australia [in] November 2020 and he was not harmed by anyone. He was concerned that the Police may have been indiscreet and the group of boys may have identified him as the person who provided the Police with a description. He was concerned that his family may be targeted. However, at best his evidence is that, after this incident, he saw boys walking up and down his street and sitting down and smoking cigarettes. He and his family speculated that they may have been looking for him.

38. In view of the applicant’s own evidence, the Tribunal does not accept that he was a whistle blower of a drug related gang and robbers and that he was targeted for this reason. The Tribunal is not satisfied that he is at risk of persecution from these boys or men if he returns to Fiji.

1. Fourth, in his application for a Protection visa, the applicant claimed that he was threatened and was physically and psychologically abused. The Tribunal discussed these claims with him. He stated that he was referring to his ex-wife and her family. After coming to Australia, he found out that his ex-wife was having an extra-marital affair with a married man. He separated from her in 2021 and subsequently applied for a divorce. When asked who  threatened him and physically and psychologically abused him, he responded that when he said physically he meant that he could not eat properly and could not focus. All he knows is his culture.

2. The Tribunal asked the applicant who threatened him and how he was threatened. He responded that he got a message on [Social media] that he was here because of her and questioned why he separated from her when she did nothing wrong. He had already explained what she did. He responded that they should speak to his mother and she would  tell them. His mother told them what his wife did and that they are now separated. When asked how that is a threat, he responded that when he returns he will get it for marrying. He had a baby and left her. He did everything the traditional way. He brought her into his house and provided everything he could and she still did that. She told them the wrong thing.  

3. The Tribunal asked the applicant again how this could be considered to be a threat. He responded that they said, “we will be here when you come back”. He does not know what that means. His ex-wife knows he was on a temporary visa. He got this message in 2021 when he told his ex-wife that he was going to look for a lawyer and get a divorce. She did not take it kindly and started spreading rumours even with his own family. His family members asked him what was happening. His ex-wife is now with the man she had the affair with. He does not know if they are married. He has cut ties with her.

4. The Tribunal asked the applicant whether there was any physical abuse. He responded that he did not know what he meant by that. When asked what he meant by psychological abuse, he responded that he was referring to his mental state. They said all they could see was his anger. It affected his relationship with his mother and [Child 1]. When asked whether he had any further contact with relatives after that, he responded that there were some photographs of him and his ex-wife on [Social media] with comments from her relatives. They were directed at his (current) partner and said she was using his money so they could be together. It was not nice. They were random comments and were unsettling. They have learnt to live with it and have moved on.

5. The Tribunal noted that this happened in 2021. When asked why he thought it would have a problem with his ex-wife (or her family) now, he responded that when a Fijian holds a grudge they hold it forever. Most couples hold grudges. If their partner leaves and comes back, they welcome them back but once they are in the house they beat them up. The Tribunal noted that his ex-wife has another partner and he has another partner. When asked why he would have a problem now, he responded that his ex-wife has not accepted it. Relatives make comments. They ask what is wrong with him. He has another family. His ex-wife is sending the wrong message to everyone. All he can say is that, now that he has a family, he has to live and support them. He cannot do that in Fiji.

6. The Tribunal accepts that the applicant’s ex-wife’s infidelity and her giving their relatives incorrect information about why their marriage broke up was upsetting for the applicant. The Tribunal accepts that comments made about him on [Social media] by his ex-wife’s relatives and some of his relatives may have also been upsetting for him. The Tribunal accepts that comments made about him on [Social media] by his ex-wife’s relatives and some of his relatives may have also been upsetting for him. The Tribunal accepts that comments made about his current partner may also have been upsetting for him and [Ms A]. However, the Tribunal does not accept that this amounted to persecution. 

7. The Tribunal does not accept that the applicant was threatened and was physically and psychologically abused. The Tribunal is not satisfied that he would be at risk of persecution from his ex-wife, her relatives or his relatives if he returns to Fiji.

8. Fifth, in his application for a Protection visa, the applicant claimed that he left Fiji in search of better economic stability. When asked when he decided to come to Australia, he responded in 2020. When asked why he decided to come to Australia, he responded that the reason he came to Australia was because he started to realise that his wage of $150.00 per week was dead money. The money came and it went and he was living from pay cheque to pay cheque. He had no savings. He realised that in Fiji they earned $2.00 to $3.00 an hour compared to Australia where they earned $20.00 per hour. Even if he had to clean toilets, he would rather do that. He wanted to provide his [Child 1] a life he did not have.

9. The applicant’s evidence to the Tribunal is that his mother and younger [Sibling] aged [Age] years live in Fiji. He was married in Fiji and has a [Child 1] aged [Age] years. He divorced his wife after coming to Australia. His wife has returned to her village and his [Child 1] lives with his mother. His mother is not in paid employment. He has been financially supporting his mother, [Sibling] and [Child 1] since coming to Australia. After coming to Australia, he formed a relationship with [Ms A]. They got engaged [in] November 2022 and plan to get married in 2024. They now have a child of their relationship. He provided the Tribunal with a Parentage Testing Procedure Report from [Laboratory] dated 23 November 2023 which indicates that the probability that he is the genetic father of [B] is 99.9999994%. [Ms A] is not in paid employment. He financially supports [Ms A] and their baby.

10. The applicant’s evidence in relation to why he left Fiji and travelled to Australia contradicts the reasons he gave in his application for a Protection visa. This raises further issues in relation to the credibility of the claims made in his visa application.

11. Sixth, the records of the Department indicate that the applicant arrived in Australia [in] November 2020 on a subclass 403 Temporary Work visa. This visa was valid until 25 November 2023. He applied for a Protection visa on 22 March 2023 which was 2 years and 4 months after his arrival. The Tribunal put this information to him, pursuant to s.424AA of the Act, and noted that it would expect that, if he was at risk of harm in Fiji, he would have obtained immigration advice (particularly as he claims that his [Relative] is an immigration  lawyer in Australia) and lodged an application for a Protection visa soon after his arrival in Australia. The Tribunal noted that his delay until 22 March 2023 to apply for protection raises issues in relation to his credibility and the veracity of his claims.

12. The applicant responded that his father passed away soon after his arrival in Australia. He  lost the most important person in his life. His father died in March or May 2021. The visa was the last thing on his mind. He was drinking to ease his pain until he met his partner. She helped him to fill the shoes of his father and to encourage and comfort him when no one else could. When they started dating they wanted to apply for a Partner visa. When they looked at it, it cost $8,000.00 and they could not afford it. When they looked at a Protection visa, it was a reasonable cost and he could afford it at that time. He applied for the Protection visa to buy him more time for them to get married and settle down. The plan is that he will wait until the visa situation is resolved before he gets married.

13. The Tribunal asked the applicant whether he had a contingency plan if he is not granted a Protection visa. He responded yes, the next step would be to “write to the Minister” and apply for a Bridging visa so that he can work and save $8,000.00 to apply for a Partner visa. He requested that the Tribunal give him time to stay here.

14. The Tribunal informed the applicant that Protection visas are not granted to enable applicants to extend their stay in Australia to work and apply for Partner visas. The Tribunal also informed him that it was obliged to make a quick decision and was unable to delay making a decision. He declined to respond.

15. The Tribunal accepts that the applicant was deeply affected by his father’s death. However, based on his own evidence that his father passed away in March or May 2021, the Tribunal notes that this was either 4 months or 6 months after his arrival in Australia during which he had plenty of time to obtain immigration advice and apply for a Protection visa. The Tribunal notes his evidence that his grandfather is an immigration lawyer in Australia and has been practising for about 35 years.  

16. In view of the applicant’s evidence above, the Tribunal concludes that he applied for a Protection visa because it was cheaper to do so than apply for a Partner visa and to enable him to obtain a Bridging visa with work rights so that he could work and save money to pay the fees for a Partner visa and to enable him to buy more time so that he could get married and settle down. The Tribunal concludes that he did not apply for a Protection visa because he is in need of protection.

17. The Tribunal raised as an issue with the applicant its doubts that he satisfied the requirements for a Protection visa. He declined to respond.

18. The Tribunal has considered the evidence of [Ms A], the applicant’s partner. She stated that she met the applicant [in] November 2021 and they have been together since then. They have a child of their relationship named [B] who was born in [Month, Year]. They are in a long term relationship and got engaged [in] November 2022. They plan to get married but have not set a date yet. They have big plans.

19. [Ms A] stated that they need to solve the visa issues. They have sought immigration advice from lawyers or registered migration agents. A lot of them are expensive and they were quoted about $20,000.00 from one of them. She is an Australian citizen and is prepared to sponsor the applicant for a Partner visa. They want to apply for a Partner visa. She is not working and the applicant recently got a job. They do not have the money for the visa application now but things will change if the applicant continues to work. When asked whether she and the applicant have considered what they would do if the applicant does not get a Protection visa, she responded yes. They will write to the Minister. The applicant’s grandfather advised them to do that. He is a lawyer, has done lots of Protection visa applications and works from home.

20. [Ms A] stated that she supports the applicant. It is not a good thing for him to return to Fiji. He has a family to support in Fiji and in Australia. She does not want him to be taken away from her and their [Child 2 B]. He has a special bond with [B] and her [Children] aged [Age] years (from a previous relationship). Her [Children] live with their father in [Town] and she sees them every school holiday. She would like them to live in Sydney with her but their father is adamant that they live in [Town]. She and the applicant may move to [Town]. He will have a lot more flexibility when he is an Australian citizen. They would also like to bring his [Child 1] from Fiji to Australia. From what she has heard Fiji is not a nice place to grow up in.

    Other considerations

21. The Tribunal has had regard to the Tribunal’s Guidelines on the Assessment of Credibility in assessing the applicant’s credibility. The Tribunal has also had regard to the DFAT Country Information Report on Fiji and the Department’s Policy Guidelines to the extent that they are relevant to the decision under consideration.

    Findings

22. Having considered all of the applicant’s claims and all the evidence, the Tribunal accepts that the applicant was born on [Date] in Fiji. The Tribunal accepts that his father has passed away. The Tribunal accepts that his mother, [Sibling 1] and [Child 1] live in Fiji and that he supports them financially. The Tribunal accepts that he has a [Sibling 2] who lives and works in Australia. The Tribunal accepts that he was married in Fiji and separated from his wife in 2021 after he came to Australia. The Tribunal accepts that he has applied for a divorce in Fiji.

23. The Tribunal does not accept that the applicant left Fiji because of his opinion of the former Prime Minister of Fiji, Frank Bainimarama, or his government. The Tribunal does not accept that he left Fiji in search of freedom of speech. The Tribunal does not accept that he was a whistle blower in relation to a drug-related gang and robbers and that he was targeted for this reason. The Tribunal does not accept that he was threatened and was physically and psychologically abused. The Tribunal does not accept that he left Fiji to flee from bullying and peer pressure from bad company.

24. The Tribunal does not accept that the applicant was abused by ring leaders in Fiji. It follows that the Tribunal does not accept that, if he returns to Fiji, he will suffer the same abuse by ring leaders as he did before. The Tribunal does not accept that members of a gang or robbers were searching for him or watching his house. The Tribunal does not accept that he was or is of adverse interest to gangs or robbers or the Fijian authorities.

25. The Tribunal accepts that the applicant grew up in an area where people used (illegal) drugs and alcohol. The Tribunal accepts that, as a young man, he had friends who used illegal drugs and that peer pressure was put on him to do the same. The Tribunal is not satisfied that this amounted to persecution. The Tribunal accepts that he is no longer friends with these people. The Tribunal accepts that when he was about 19 years old two or three men on the street asked him for $2.00 or $3.00 which he gave them. The Tribunal accepts that this happened again when he was 21 years old. The Tribunal is not satisfied that this amounted to persecution.

26. The Tribunal accepts that there are young men in Fiji who get drunk and/or use illegal drugs and walk down the street screaming. The Tribunal notes the applicant’s evidence that the Police patrol the area and the young men “cross the neighbourhood” when they hear the Police siren. The Tribunal notes that this impacts all Fijians and not just the applicant. The Tribunal is not satisfied that he is at risk of serious harm or significant harm from his ex-wife, her family or his family if he returns to Fiji now or in the foreseeable future. The Tribunal accepts that he left Fiji and came to Australia in search of better economic stability.

27. The Tribunal accepts that the applicant has a partner in Australia, [Ms A], and that they have a child of their relationship being a [Child 2] named [B]. The Tribunal accepts that [Ms A] is an Australian citizen and that she is prepared to sponsor him to make an application for a Partner visa. The Tribunal accepts that he does not have the funds to pay the fees for a Partner visa. The Tribunal accepts that he applied for a Protection visa to “buy time” so he could continue to work and save money to pay the fees for an application for a Partner visa and to get married and settle down.

28. In view of the above, the Tribunal is not satisfied that the applicant is at risk of serious harm or significant harm for reason of his actual or imputed political opinion or any other reason claimed if he returns to Fiji now or in the reasonably foreseeable future. 

    Does Australia have protection obligations to the applicant under the refugee criterion?

29. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reason of his actual or imputed political opinion or any other reason set out in s.5J(1)(a) of the Act, that there is a real chance that he would be persecuted for one or more of those reasons and the real chance of persecution relates to all areas of Fiji. Therefore, he does not meet the definition of refugee as set out in s.5H of the Act. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.

    Does Australia have protection obligations to the applicant under the complementary protection criterion?

30. As the Tribunal has found that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered whether he may nevertheless meet the criterion for the grant of a Protection visa pursuant to the complementary protection criterion.

31. Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence and in view of the findings above, the Tribunal is not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that he will suffer significant harm. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

    CONCLUSION

32. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act.

33. There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) of the Act and who holds a Protection visa. Accordingly, he does not satisfy the criterion in s.36(2) of the Act.

    DECISION

34. The Tribunal affirms the decision not to grant the applicant a Protection visa.

L. Symons
         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.

…