2318277 (Refugee)

[2024] AATA 1229

2318277 (Refugee) [2024] AATA 1229 (15 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2318277

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Angela Cranston

DATE:15 January 2024

PLACE OF DECISION:  Sydney

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

Statement made on 15 January 2024 at 2:39pm

CATCHWORDS
REFUGEE – protection visa – Fiji – fear of potential coup – capacity to subsist – country information – current political environment – economic situation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
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 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 19 October 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, applied for the visa on 22 August 2023. In her application, the applicant stated she had been employed from June 2000 to June 2015 at the front office of [Employer 1] and stated the following:

I left Fiji to come and seek refuge in Australia to await the arrival of my kids and husband to also provide the best in life for my two kids especially my youngest daughter who is [age] years old, Im in the fear that there may be a movement to overthrow the current government of the days. My husband has been in the [Employer 2] for [number] years and has been working in the [specified] department to help provide for our family since I have been struggling to find a job. To find safety for my family my husband decided it was best I took the lead since I was not working and he still had a job. There has been talks and rumours going around the military about a potential uprising to overthrow the current Rabuka government and my husband wasn’t us to find help and move to another country before something happens which will hinder the opportunity for a bright future with my family. I live in fear that something bad might happen (coup) and I did not take enough precaution to help my family get to safety out of harms way.  

During the previous coup led by the previous government leader many business were shut down and many of us lost our jobs and anyone who disobeyed Bainimarama was taken in for interrogation at the Barracks which always lead to getting beat up or death. My husband was stationed in [Location 1] and also in [Location 2] in Fiji and he has witnessed firsthand the detrimental effects that kind of situation has on someone. Girls being raped and there is nothing anyone can do because of the situation. The Bainimarama Fiji First party have always had there own set of rules and when they didn’t like it they changed it our made a new one to suit their agenda. I was also depressed because of the financial burden we had undergone and I wasn’t able to go to the doctors because of my financial situation and also the struggle to put food on the table while trying to protect my family from rebels and goons while my husband was out there trying to work so I feel stressed and depressed trying to hold everything together. I don’t know if I am able to undergo the same treatment again with the new rumour that’s going around.

Did this applicant seek help within the country or those countries after the harm?
No

3.    The delegate refused to grant the visa and the applicant applied for review.

4.    To the Tribunal the applicant provided several documents as follows:

Work documents from Australia

Character reference for her husband

Country information dated August 2021 relating to the resignation of the police Commissioner

Country information dated June 2023 stating the Acting Home Affairs Minister understand concerns of Commander Major General Jone Kalouniwai

Country information dated October 2023 stating that Commander Major General Jone Kalouniwai expresses concern about the non consultative approach of the Fiji Govt in relation to their decision to disapprove the United Nations resolution on Gaza. 

Country Information dated June 2022 about the then upcoming election.

Country information dated January 2023 stating that the government had summoned the military commander after he issued a statement about the ambition and speed of changes being made to the new government. 

5.    The applicant appeared before the Tribunal on 9 January 2024 to give evidence and present arguments.

6.    The applicant stated it was not her intention to apply for a protection visa. She came from a military family and the military had been asked to do something about the government. She stated her husband was in the army and as a result, was involved in the coup in 2000 and he did not want to be involved in anything that was going to happen.

7.    The applicant stated she came in June 2023 because her husband was still [working], she was not working and stayed home and planned to come to Australia. The Tribunal put to her in her protection visa application she said she was working in the [specified] industry and she agreed.

8.    When asked why she could not return, she stated there was a difference between Australia and Fiji. In Fiji they did not recognise the people, the cost of living was too high, but sin Australia he was working, and she was satisfied. 

9.    The Tribunal put to her the protection visa was for someone who would suffer serious harm or significant harm. She said returning was a risk because she was from an army family. She also stated her husband couldn’t resign until 55.

1. The Tribunal put to her that her husband’s inability to resign may not make her a refugee. The Tribunal also put to her that the government was elected in December 2022 and DFAT had stated there was no significant political unrest or deterioration of government functions since the government was elected in December 2022. The Tribunal put to her that any coup may be a mere possibility.

2. The Tribunal also put to her that she and her husband had been working in Fiji. She stated her work had been on and off.

3. The Tribunal talked about the refugee definition and significant harm and the applicant chose not to comment. 

Country Information

December 2022 election and the current political environment

1. According to country information cited in the Country of Origin Information Services Section (COISS), dated 25 August 2023, there has been no significant political unrest or deterioration of government functions since the Rabuka government was elected. In the December 2022 elections, Prime Minister Voreqe (Frank) Bainimarama’s FijiFirst Party failed to win a majority, ending his 16 years in power. FijiFirst won the popular vote (42.5 per cent); however, it only won 26 seats, just short of the 28 needed to form government. The new Prime Minister, Sitiveni Rabuka of the People's Alliance (PA), leads a three party coalition that includes the Social Democratic Liberal Party (SODELPA) and the National Federation Party (NFP). Rabuka instigated both 1987 coups and served as Prime Minister between 1992 and 1999. His coalition holds a slim majority in parliament. Despite some irregularities, international observers assessed the electoral process as being free and fair overall.

The transition of power has been peaceful, with the military so far refusing to intervene. The head of Fiji’s military, Commander Major General Ro Jone Kalouniwai, refused to support calls from the (now former) Police Commissioner Sitiveni Qihilo to send troops into the streets after the election result was announced.

In mid-January 2023, Commander Kalouniwai issued a critical statement that the government was going too far too fast. Commander Kalouniwai was rebuked and has since publicly expressed support for the new government. In June 2023, an unsourced document circulated on social media calling for a military takeover. FijiFirst denied responsibility for the document and Commander Major General Kalouniwai dismissed rumours the military would intervene to overthrow the government. Police continue to investigate who is responsible for the document. In July 2023, Commander Kalouniwai reiterated that a coup would not occur.

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 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 in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugee definition in Fiji and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to Fiji, there is a real risk that she will suffer significant harm.

2. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

3. In her protection visa application, the applicant stated she left Fiji to come to Australia to provide the best in life for her family and that she feared there may be a movement to overthrow the current government. She also stated her husband was in the [Employer 2], there had been rumours about a potential uprising to overthrow the current Rabuka government and they wanted to move to another country before something happened.

4. She also stated she and her husband were under a financial burden and struggled to put food on the table while trying to protect her family from rebels and goons while her husband was trying to work and she felt stressed and depressed trying to hold everything together.

5. While the Tribunal has considered the applicant’s dated country information, according to the more updated country information before it, there has been no significant political unrest or deterioration of government functions since the new government was elected in December 2022. Accordingly, the Tribunal finds the applicant’s claims there is a potential uprising to overthrow the current Rabuka government and her need to protect her family from rebels and goons are at best, speculative.

6. The Tribunal also finds the applicant’s concerns as articulated at hearing are that she is under financial burden and struggles to put food on the table however the country’s overall economic situation is unrelated to the refugee definition, and the applicant and her husband have shown themselves to be industrious and resourceful enough to have previously worked and there is also nothing in the applicant's past as presented at hearing that suggests she will be denied employment commensurate with her education and experience. In these circumstances, the Tribunal is not satisfied that the applicant will be denied employment in Fiji let alone for a refugee reason.

1. Neither does the Tribunal accept that it is reasonably foreseeable as opposed to a mere possibility that if the applicant returns to Fiji she will somehow be affected by a potential uprising to overthrow the current Rabuka government or that she will need to be protected from rebels and goons.

1. 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 the Refugees definition. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

2. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).

3. The Tribunal has rejected the claims made on the basis that it is reasonably foreseeable as opposed to a mere possibility that if the applicant returns to Fiji she will somehow be affected by a potential uprising to overthrow the current Rabuka government or that she will need to be protected from rebels and goons.

4. While the applicant has stated that she and her husband have struggled to put food on the table, the evidence before it does not suggest there is any intention to deny the applicant resources other than Fiji’s overall and universal economic situation.  Therefore, the harm she may face struggling to put food on the table does not mean there is a real risk that the applicant will be subject to torture, to cruel or inhuman treatment of punishment and/or degrading treatment or punishment that would amount to significant harm throughout Fiji. Neither do the consequences of Fiji’s overall and universal economic situation mean that the applicant will be arbitrarily deprived of her life; and there is no evidence, and nor was it argued that the death penalty will be carried out.

5. The Tribunal is therefore not satisfied that there is a real risk that the applicant will suffer any harm, let alone significant harm as defined in ss.36(2A) and 5(1) of the Act, in the future.

6. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

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

DECISION

1. The Tribunal affirms the decision not to grant the applicant a protection visa.

Angela Cranston
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.

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

…