2319924 (Refugee)

[2024] AATA 1813

2319924 (Refugee) [2024] AATA 1813 (18 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:2319924

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Wayne Pennell

DATE:18 March 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 18 March 2024 at 10:17am

CATCHWORDS

REFUGEE – protection visa – Fiji – fear of crime rate – economic conditions – return visits to Fiji with employment opportunities – delay in applying for protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 424AA, 425, 499
Migration Regulations 1994, Schedule 2

CASES

Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997
Kavan v Minister for Immigration and Multicultural Affairs [2000] FCA 370
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559
Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Zhang Su Rong v Refugee Review Tribunal and Anor [1997] FCA 423

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 a review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) to refuse to grant the applicant a protection visa under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]

   [1]The delegate’s decision was provided to the applicant on 6 December 2023.

2. The applicant, who claims to be a citizen of Fiji, applied for a protection visa.[2] The delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to Fiji, there was a real risk he would suffer significant harm and refused to grant the visa on the basis that he was not a refugee as defined by the Act[3] and therefore he was not a person in respect of whom Australia has protection obligations.[4] In response to the delegate’s decision, the applicant subsequently filed an application with the Tribunal for a review of that decision.[5]

   [2]The applicant’s application was received by the Department of Home Affairs on 17 October 2023.

   [3]Migration Act 1958 (Cth), s 5H.

   [4]Migration Act 1958 (Cth), s 36(2)(a), s 36(2)(aa).

   [5]On 6 December 2023.

3. The applicant was not represented throughout the process of applying for protection, or his review application and at a subsequent time, the Tribunal sent a letter to him and advised that it had considered all the material relating to his application but was unable to make a favourable decision on that information alone and he was invited to attend an in-person review hearing scheduled for 11 March 2024.[6] The applicant appeared at the review hearing and he was assisted throughout the hearing process by an interpreter in both the English and Fijian languages.

   [6]The Tribunal advised the applicant on 13 February 2024.

   CRITERIA FOR A PROTECTION VISA

4. The measures for a protection visa are set out in the Act[7] and Schedule 2 to the Migration Regulations1994 (Cth). An applicant for the visa must meet one of the alternative criteria as provided in the Act.[8] That is, the applicant 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.

   [7]Migration Act 1958 (Cth), s 36.

   [8]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).

5. The Act 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, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[9]

   [9]Migration Act1958 (Cth), s 36(2)(a).

6. 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.[10] 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.[11]

   [10]Migration Act1958 (Cth), s 5H(1)(a).

   [11]Migration Act1958 (Cth), s 5H(1)(b).

7. The Act also provides that 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, and 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.[12] 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 the Act, which are extracted in the attachment to this decision.[13]

   [12]Migration Act 1958 (Cth), s 5J(1).

   [13]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.

8. If a person is found not to meet the refugee criterion in the Act,[14] that person may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (‘the complementary protection criterion’).[15] 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 expressly provided in the Act, which are extracted in the attachment to this decision.[16]

   [14]Migration Act 1958 (Cth), s 36(2)(a).

   [15]Migration Act 1958 (Cth), s 36(2)(aa).

   [16]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).

9. The Act makes provision for, and clearly defines that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[17]

   [17]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).

10. Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[18]

    [18]Migration Act 1958 (Cth), s 36(2B).

    COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY

11. The applicant claims to be a citizen of Fiji and he provided a copy of his passport to the Department to authenticate this claim.[19] The Tribunal accepts the applicant’s identity and based on the evidence he provided, and in the absence of any other evidence to the contrary, the Tribunal finds that Fiji is his country of nationality and his receiving country for the purposes of the refugee and complementary protection assessments.[20]

    [19]applicant’s passport issued in Fiji [in] 2017.

    [20]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).

12. Based on the evidence, the Tribunal is satisfied the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that he is not excluded from Australia’s protection obligations.[21]

    [21]Migration Act 1958 (Cth), s 36(3).

    MANDATORY CONSIDERATIONS

13. In accordance with Ministerial Direction No.84 made under the Act,[22] 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.

    APPLICANT’S CLAIMS AND BACKGROUND

    [22]Migration Act 1958 (Cth), s 499.

    Claims

14. When his application for a protection visa was lodged with the Department, the applicant claimed to have a well-founded fear of returning to Fiji. He also claimed that if he returned to Fiji, there was a real risk that he would suffer significant harm or there was a real chance that he would suffer serious harm. In completing his application, a number of questions were posed to him in the application which he responded to. In regards to his protection claims he made the following responses:  

Provide reasons why this applicant left that country or those countries:

Trying to get some new life environment which is more safe country with very good economic amongst the best in the world.

Did this applicant experience harm in that country or those countries?

No

Did this applicant move, or try to move, to another part of that country or those countries to seek safety?

No

Give details for why this applicant did not try to move to another part of the country or those countries.

will facing the same issue

Explain what the applicant thinks will happen to them if they return to that country or those countries:

Nowadays, there is much criminal cases and very bad economy. My life is somewhat affected because of the rising cost of living and the basic stuff becomes very expensive while my earning every month is still the same

Does this applicant think they will be harmed or mistreated if they return to that country or countries?

Yes

Give details including:

• the type of harm or mistreatment this applicant is likely to experience
• the person/people who would be responsible for the harm or mistreatment

• why they would harm or mistreat this applicant.

Will hard to get a life with all living cost is terrible high and much criminal issues incurred. Thefts and snatch cases are so rampant and common in FIJI nowadays. I have to support in financial to my parents and also to support my siblings education too

Does this applicant think the authorities of that country or those countries can and will protect this applicant if they go back?

No

Give details about why this applicant thinks the authorities could not, or would not, protect them.

no further comment on this issue. So many complaining about The Government Bodies nowadays.

Does this applicant think they would be able to relocate within that country or those countries to an area where they would not be harmed?

Yes

Give details as to where this applicant could relocate.

no other

1. A summary of those claims he made are:

   (a)He did not experience harm in Fiji or try to relocate within the country for his own protection, instead he left Fiji to go to a safe country with a good economy.

   (b)He is financially responsible for his parents, as well as paying the education costs of his siblings. Wages in Fiji have remained the same and if he returned to Fiji he will experience economic hardship due to the rising cost of living.

   (c)He fears harm in Fiji from criminal activity such as theft and he does not believe the Fijian authorities could protect him.[23]

   [23]As referenced within the delegate’s decision dated 6 December 2023, page 2.

2. On 24 January 2024, the Tribunal wrote to the applicant and advised him that his file was being prepared to be allocated to a Tribunal member. He was requested to complete a pre-hearing information form. He completed the pre-hearing information form and explained that he came into Australia in 2017 as part of a group under a Pacific Australia Labour Mobility (‘PALM’) scheme. He stayed in Australia for six months and then returned to Fiji. In 2018, he came back to Australia under the same work scheme and again stayed for 6 months before going back to Fiji. In November 2019, he came back to Australia for work and has remained her ever since.

3. He went on to say that he firmly believed that Australia deserved good, reliable citizens who are diligent and honest with Australia’s laws and are law abiding citizens. He added that he has a family in Fiji consisting of [number] children. There are [genders and ages]. His eldest child is in [grade] at school and the youngest is in [grade]. The success of his family will be determined in the new environment in Australia if given a chance to prove his worth and contributions to the growth of Australia’s economy, and this would enhance the educational opportunities of his children which ultimately will contribute to Australia’s GDP.

4. He concluded by saying that he had worked in Australia during the COVID-19 period as well as when other disasters occurred, although the Tribunal observes that he did not reference a description of those disasters.     

5. The applicant did not provide a statutory declaration or statement from himself, or from any other person that was in a position to provide evidence to support or corroborate his claims. Overall, there was scant evidence provided to the Tribunal which was probative or relevant to the applicant’s claims.

   Background and circumstances surrounding the making of his application

6. The applicant is a citizen of Fiji. He told the Tribunal that he was the only child in his family. He did not get to know his biological father, and was raised by his mother and stepfather. He grew up in Suva and was educated at a high school in Suva. He was aged about [age] when he left school.

7. He described that he is now married and he has [number] children aged [respective ages]. His wife does not work in Fiji and he has been the sole wage earner for the family. He also said that his wife and children still reside in Fiji.

8. Predominantly throughout his adult life when he lived in Fiji, the applicant had been employed on a full time basis. After he left school, he worked [in a business 1] for two years, after which he was employed as [an occupation 1] in [industry 1]. He was working for a contractor and he remained employed in [industry 1] until shortly before he first travelled to Australia as part of the PALM scheme to come to Australia for work.

9. The PALM scheme allows eligible Australian businesses to hire workers from nine Pacific islands and Timor-Leste when there are not enough local workers available. Through the scheme, eligible businesses can recruit workers for short-term jobs for up to nine months or long-term roles for between one and four years in unskilled, low-skilled and semi-skilled positions. The scheme helps to fill labour gaps in rural and regional Australia and nationally for agriculture and select agriculture-related food product manufacturing sectors by offering employers access to a pool of reliable, productive workers. It also allows Pacific and Timor-Leste workers to take up jobs in Australia, develop their skills and send income home.[24]

   [24]

10. During his first trip to Australia in 2017, he stayed for about five months and worked as [an occupation 2] in the [Area 1] area in Queensland. He returned to Fiji in April 2018. He did not remain idle when he returned home, and he managed to go back to working on a part time basis in [industry 1] as [an occupation 1].

11. He again applied to come to Australia as part of the PALM scheme and he arrived in November 2018. He initially went to the [Area 2] to work on [farms], and then returned to the [Area 1] area. He left Australia and returned to Fiji in April 2019. Just like the first time he returned to Fiji, he managed to reengage with [industry 1] and was employed as a part time [occupation 1].

12. In late 2019, he again applied to come to Australia as part of the PALM scheme. He said that on this occasion he was working for a company, but as part of the employment agreement he had to work on Saturdays and sometime on Sundays. He left that first company and secured employment with another company with better wages and conditions. His visa was about to expire in August 2020 so he applied for another visa. He was granted a bridging visa on 18 August 2020, however he was unable to tell the Tribunal what type of visa his application related to.

13. The applicant went onto tell the Tribunal that at some time later, some of his fellow workers told him about a lawyer who could help extend his stay in Australia. He was given a phone number and he contacted this person via [a named] app. He never actually met with this person, but he managed to provide the lawyer with details as to why he wanted to stay in Australia.

14. When challenged by the Tribunal about the accuracy of the information in his application, particularly where his application references that he financially supports his parents and siblings, yet his testimony at the review hearing was that he was an only child and his parents are deceased, the applicant said that he had never read his application and that is not what he told his representative.

15. When further discussing his claims with him, he told the Tribunal that he had never been harmed in Fiji, and he did not hold a well-founded fear of persecution in Fiji for reasons of his race, religion, nationality, membership of a particular social group or any political opinion. He said that the reason he wanted to extend his stay in Australia was because he has [number] children and that he is worried about how he could financially provide for those children and pay for their education if he had to go back to Fiji. He explained that in Fiji the wages were only five dollars per hour or up to about 30 dollars per day, and this is not enough to provide for his family. He told the Tribunal that his application is based on wanting to extend his stay in Australia for the financial benefit of his wife and children; he did not realise the exact implications or obligations in applying for a protection visa.

16. He agreed with the Tribunal’s proposal that the economic situation of Fiji and the availability of more prosperous salaries and wages within Australia are circumstances that are faced by the general overall population of Fiji, and that is particularly applicable to those people who are struggling on low incomes in Fiji.

    APPLICANT’S IMMIGRATION HISTORY AND DELAY

17. The applicant has a significant migration history recorded with the Department, including the following chronology:                

24 October 2017

Temporary Work (International Relations) (subclass 403) visa granted to the applicant.

[November] 2017

The applicant arrived in Australia subject to the conditions of the work visa granted on 24 October 2017.

[April] 2018

The applicant returned to Fiji.

26 April 2018

The Temporary Work visa granted to the applicant on 24 October 2017 expired.

12 October 2018

Temporary Work (International Relations) (subclass 403) visa granted to the applicant.

[November] 2018

The applicant arrived in Australia subject to the conditions of the work visa granted on 12 October 2018.

[April] 2019

The applicant returned to Fiji.

23 May 2019

The Temporary Work visa granted to the applicant on 12 October 2018 expired.

7 November 2019

Temporary Work (International Relations) (subclass 403) visa granted to the applicant.

[November] 2019

The applicant arrived in Australia subject to the conditions of the work visa granted on 7 November 2019.

10 August 2020

Temporary Work (International Relations) (subclass 403) visa granted on 7 November 2019 expired.

19 August 2020

Bridging visa C granted to the applicant.

13 November 2020

Temporary activity visa (subclass 408) granted to the applicant.

20 July 2021

Bridging visa A granted to the applicant.

1 September 2021

Temporary activity visa (subclass 408) granted to the applicant.

23 August 2022

Bridging visa A granted to the applicant.

30 November 2022

Temporary activity visa (subclass 408) granted to the applicant.

17 October 2023

Application for a protection visa lodged with the Department.

24 October 2023

Bridging visa A granted to the applicant. This visa currently remains in force.

6 December 2023

Delegate’s decision to refuse the applicant’s application.

Applicant lodged a review application with the Tribunal.

1. A summary of the applicant’s migration history is that:

   (a)The applicant has travelled to Australia on three occasions over a two year period between November 2017 and November 2019.

   (b)On each of those occasions, his entry into Australia was subject to a Temporary Work (International Relations) (subclass 403) visa.

   (c)In that same two year period, he returned from Australia to Fiji twice, with each of those occasions coinciding with the expiry of his Temporary Work (International Relations) (subclass 403) visas.

   (d)His application for a protection visa was lodged with the Department on 17 October 2023, which is:

   (i)   Almost six years after he first arrived in Australia; and

   (ii)     Almost four years after his last arrival in Australia.     

   Delay in lodging application for a protection visa

2. The applicant told the Tribunal that it had always been on his mind when he lived in Fiji that he could earn more money in Australia, and that’s the reasons behind him coming to Australia.

3. As identified above, at the time that he had lodged his protection visa application with the Department, almost six years had passed between his first arrival in Australia to when he lodged his application, and it was almost four years after his last arrival that he finally got around to lodging his application. The Tribunal finds that the delay in lodging the application is a significant delay.

4. In respect to any consideration given by the Tribunal about the delay between the applicant’s arrival in Australia and to when he lodged his application for a protection visa, guidance can be found by the determinations reached in Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997 where the Court held that even a 3-month delay in lodging a protection visa application is a legitimate matter to consider when assessing the genuineness or depth of an applicant’s fear of persecution.  Therefore, the significant delay in the applicant seeking a protection visa can support an adverse credibility finding as well as a finding that he does not have a well-founded fear of harm. The significant delay in this case is not behaviour indicative of someone who fears for their physical safety[25] and the Tribunal particularly notes that the applicant has offered no reasonable excuse or explanation as to the exceptionally long delay in making his application.

   [25] ZHANG SU RONG V REFUGEE REVIEW TRIBUNAL AND ANOR [1997] FCA 423; KAVAN V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS [2000] FCA 370, [22].

5. The Tribunal has considered the applicant’s delay in applying for protection in Australia and concludes that the noteworthy delay casts significant doubt on the genuineness of his claims that he has a well-founded fear of persecution if he were to return to Fiji.  The delay in lodging his protection visa application adds weight to the finding that his claims do not appear to reflect the reality of his circumstances.

   COUNTRY INFORMATION

6. Because the applicant was appearing before the Tribunal,[26] the Tribunal exercised its discretion to give him clear particulars of certain information relating to Fiji’s economic situation in Fiji, along with the availability of state protection and education which the Tribunal considered would be the reason, or a part of the reason, for affirming the decision that is under review. That information was contained within the DFAT Country Information Report (‘DFAT report’), a World Bank report and other available freely available public information regarding those areas just identified.  

   [26]Subject to the provisions of the Migration Act 1958 (Cth), s 425.

7. In giving him clear particulars of that information, the Tribunal, as far as was reasonably practicable, made sure he understood why the information was relevant to the review, and the consequences of the information being relied on in affirming the delegate’s decision. The applicant was invited to comment on or respond to the information and he was also advised that he may seek additional time to do so, and if he did, then the Tribunal would adjourn the proceedings for a reasonable time to allow him that additional time. The applicant declined the invitation and opportunity for that additional time.[27]

   [27]Migration Act 1958 (Cth), s 424AA.

   Economic situation

8. Fiji is a small island nation in the South Pacific Ocean. Most of the 870,000 population live on the 2 large islands. It is one of the most developed and connected of the Pacific Island economies and is the second largest economy in the Pacific, most industrially advanced, and the centre for re-exports. Tourism is the main engine of growth contributing about 40 per cent of GDP and a key source of foreign exchange earnings from Fijians working abroad representing the country’s largest foreign exchange earners.[28]

   [28]The World Factbook - Fiji, Central Intelligence Agency, 12 December 2016; Bang for buck: Getting the most out of Pacific Islander remittances, Collins J, The Interpreter, 18 January 2022, accessed 1 March 2024.

9. After nearly a decade of consecutive growth, averaging 3.7 per cent in 2010−18, the economy contracted in 2019 owing to domestic fiscal and monetary policy tightening and a downswing in global trade. A combined impact of COVID-19 and three tropical cyclones deepened the contraction to 22.1 per cent (cumulative) during 2020−21 and exacerbated pre-pandemic fiscal vulnerabilities. The reopening of international borders in December 2021 has spurred economic recovery and employment. Prior to the COVID-19 pandemic, Fiji had a poverty rate of 24.1 per cent in 2019−20 as defined by the national standards of living. The 2019−20 Household Income and Expenditure Survey (HIES) estimated the incidence of extreme poverty at 1.3 per cent, which is on par with other Upper Middle-Income Countries (UMICs).[29]

   [29]Macro Poverty Outlook, Country-by-country Analysis and Projections for the Developing World, International Bank for Reconstruction and Development / The World Bank, 2023, pages 12 to 13, accessed 10 March 2024.

10. Fiji’s economy has expanded by 18.6 per cent in 2022. This is driven by a 71 per cent resurgence in total tourist arrivals compared to 2019 levels, particularly from Australia, New Zealand, and the United States of America. By the end of July 2023, arrivals had reached 101 per cent of the July 2019 figures. This growth is accompanied by an increase in investment and consumption activities, as evidenced by the rise in new consumption loans and remittances. The double-digit recovery is primarily driven by services-related sectors, including accommodation, transportation, wholesale trade, and finance. Economic recovery is estimated to have reduced poverty by UMIC standards and annual inflation was sitting at 3.1 per cent in 2022 due to low prices of alcoholic beverages and food items which had decreased to 0.3 per cent in July 2023 on account of lower fuel and kava prices. [30] 

    [30]Macro Poverty Outlook, Country-by-country Analysis and Projections for the Developing World, International Bank for Reconstruction and Development / The World Bank, 2023, pages 12 to 13, accessed 10 March 2024.

11. The economic outlook for Fiji is that the GDP is projected to grow by 7.7 per cent and by 2023 it was expected to surpass its pre-pandemic level if tourist arrivals reach 95 per cent of the 2019 level. It is expected to remain above three per cent over the medium term, assuming a complete recovery in tourism. The revival of the tourism sector and remittances is expected to have a positive impact on the poorest 40 per cent. The current account deficit is projected to decline over the medium term from 9.7 per cent of GDP in 2023 to 7.3 per cent in 2026 on account of higher tourism earnings and remittances. The new Fijian Government is supportive of fiscal consolidation and has already begun preparing a new national development plan, set to be finalised before the FY25 Budget. In the medium term, the Government is expected to maintain a prudent fiscal policy, improve public financial management, and implement growth enhancing reforms.[31]

    [31]Macro Poverty Outlook, Country-by-country Analysis and Projections for the Developing World, International Bank for Reconstruction and Development / The World Bank, 2023, pages 12 to 13, accessed 10 March 2024.

12. The applicant’s evidence was that since he first arrived in Australia as part of the PALM scheme, he has returned to Fiji twice. On each occasion he was able to be re-employed in the same industry he worked in prior to travelling to Australia. The Tribunal is satisfied that he is not disadvantaged because of any employment opportunities, and nor did he experience significant harm or was subjected to serious harm at that time. 

    Education

13. Within the Fijian educational system, school education is compulsory until age 15. The DFAT report provides that both primary and secondary education is available to Fijian children right across the nation which is free of charge. Enrolment is universal, even in outer islands (though some students will move and stay with extended family to pursue secondary or tertiary education). Literacy is almost universal.

14. Schools are mostly provided by religious organisations but receive government subsidies and teach a government curriculum. In-country sources told DFAT teacher quality is high overall, but services for students with specific needs (such as those with learning disabilities, or advanced students) are less available than in Australia. Tertiary education and vocational education are also available. Many students receive scholarships to attend university. Having to move to another island may present a practical barrier to higher education. The range of vocational skills taught in Fiji is smaller than that available in Australia.[32]

    [32]The DFAT Country Information Report, Fiji, 20 May 2022, page 8, paragraph 2.29.

15. When discussing the country information about Fiji’s education system, the applicant accepted that education for children in Fiji is free, however he argued that there are other costs associated with children attending school such as their lunches and bus fare. In the Tribunal’s view, those costs are not uncommon and are circumstances which are faced by the general population of Fiji, particularly those struggling on low incomes. The applicant provided no evidence of the costs involved in bus fares or lunches for his children in Fiji.  

    Police and state protection

16. The Fiji Police Force is generally seen as capable and impartial, although there have been historical reports of members of the force being involved in the adverse treatment of opposition activists. Fiji has a police-to-population comparable to Australia, and its police force has been assessed as being among the more capable in the Pacific[33] and is considered to be a generally professional law enforcement organisation, albeit under-resourced.[34] It has a reputation of being generally impartial with the ability to protect individuals from societal harassment, discrimination, and violence, and is relatively accessible.[35] Notwithstanding those positive features, there have been credible allegations of police involvement in beatings and assaults[36] and impunity is a problem in cases with political implications.[37] DFAT reported in 2017 that credible contacts had also made allegations to it that the Police Intelligence Bureau was routinely involved in monitoring and occasional harassment of opposition activists.[38]

    [33]The DFAT Country Information Report, Fiji, 27 September 2017, page 27, paragraph 5.8.

    [34]Fiji 2018 Crime & Safety Report, Overseas Security Advisory Council (OSAC), 26 June 2018, p.[8]

    [35]The DFAT Country Information Report, Fiji, 27 September 2017, page 27, paragraph 5.11.

    [36]United States of America, Department of State, Bureau of Democracy, Human Rights and Labor 2019 Country Reports on Human Rights Practices, Fiji, 11 March 2020, page 1, section 1a; Freedom in the World 2018, Fiji, Freedom House, 5 October 2018, page 11, section F3, accessed 1 March 2024; The DFAT Country Information Report, Fiji, 27 September 2017, page 27, paragraph 5.9. Fiji, Beating Justice: How Fiji’s Security Forces Get Away With Torture, Amnesty International, 4 December 2016, accessed 1 March 2024.

    [37]United States of America, Department of State, Bureau of Democracy, Human Rights and Labor 2017 Country Reports on Human Rights Practices, Fiji, 20 April 2018, page 1 Executive Summary, page 1, section 1.a and page 4, section 1.d; United States of America, Department of State, Bureau of Democracy, Human Rights and Labor 2019 Country Reports on Human Rights Practices, Fiji, 11 March 2020, page 1, Executive Summary and page 2, Section 1.c.

    [38]The DFAT Country Information Report, Fiji, 27 September 2017, page 27, paragraph 5.9.

17. When this information was relayed to the applicant, he accepted that he had not been harmed in Fiji prior to when he travelled to Australia, and notwithstanding his application suggested that ‘thefts and snatch cases are so rampant and common in Fiji nowadays’, he told the Tribunal that he did not give this information to the lawyer who lodged the application on his behalf.

    CONCLUSION AND REFUGEE FINDINGS

18. The definition of a refugee as provided within section 5H(1) of the Act explains that a refugee is a person who is outside their country of nationality or former habitual residence and is unable or unwilling to avail themselves of the protection of their country of nationality or to return to their country of former habitual residence due to a well-founded fear of persecution. The term ‘well-founded fear of persecution’ is defined in section 5J of the Act, and includes a requirement in section 5J(1)(a) of the Act that the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

19. The issue in this case is whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Fiji, there exists a real risk that he will suffer significant harm or there is a real chance that he would suffer serious harm; and whether he is a person in respect to whom Australia has protection obligations as defined in the Act.[39]

    [39]Migration Act 1958 (Cth), s 36(2).

20. The mere fact that the applicant claims he has a fear of persecution for a particular reason does not establish either the genuineness of his asserted fear, or that it is well-founded, or that it is for the reason claimed. Similarly, because the applicant claims he faces a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to significant harm. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out.

21. The Tribunal is not required to make the applicant’s case for him. It is his responsibility to specify all particulars of his claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[40] Nor is the Tribunal required to accept uncritically any and all the allegations he makes.[41]

    [40]Migration Act 1958 (Cth), s 5AAA.

    [41]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.

22. In assessing the applicant’s claims and the evidence he gave to the Tribunal at the review hearing, the Tribunal accepts that he was being frank with his disclosures, and those discloses failed to provide any basis to satisfy the threshold required under section 36(2)(a) of the Act. The Tribunal also accepts and finds that his motivation for making his application for a protection visa was focused on securing a visa that allowed him to gain employment and stay in Australia.

23. For completeness, the Tribunal finds that the applicant’s claimed fear of persecution has not been made on the basis of any race, religion, nationality, membership of any particular social group or political opinion. The Tribunal also finds that there is no basis for his claimed fear of harm as provided by section 5J(1)(a) of the Act in that there is not a real chance of him being subjected to persecution in Fiji.

24. Therefore, the Tribunal does not accept that the applicant is a refugee as defined in section 5H of the Act, and nor has the applicant satisfied the criterion as provided in section 36(2)(a) of the Act that Australia should apply the protection obligations to him.

    Complementary protection considerations

25. Because of the above refugee findings, the Tribunal is not satisfied that in the reasonably foreseeable future there is a real risk that the applicant will suffer significant harm for any of the reasons he claimed if he returns to Fiji. As it has been discussed by the courts, the test for ‘real risk’ test imposes the same standard as the real chance test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[42]  

    [42]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.

26. Having already concluded the applicant does not meet the refugee criterion as provided by the Act,[43] the Tribunal has considered the alternative criterion.[44] In considering the alternative criterion, the Tribunal measured whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to Fiji, there is a real risk that he will suffer significant harm as it is defined in the Act.[45]

    [43]Migration Act 1958 (Cth), s 36(2)(a).

    [44]Migration Act 1958 (Cth), s 36(2)(aa).

    [45]Migration Act 1958 (Cth), s 36(2A).

27. It is noted by the Tribunal that it was the applicant’s claims and his evidence at the review hearing that he faces cruel and inhuman treatment or punishment if he was to return to Fiji because he and his family would experience significant economic hardship. He claimed in his application that he was financially responsible for his parents, as well as paying the education costs of his siblings, however as established in his testimony at the review hearing, this is incorrect as his parents are deceased and he has no siblings.

28. He claimed that he had added financial pressures in providing for his wife and children. Wages in Fiji have remained the same and if he returned to Fiji he will experience economic hardship as a direct result of the rising cost of living. Further to this, he claimed that he had a well-founded fear of harm as a result of the increased criminal activity in Fiji and he does not believe that the authorities can adequately protect him. Notwithstanding those claims, he was employed prior to travelling to Australia and he managed to secure employment each time he has returned to Fiji. It does not appear that the evidence supports any proposition that he is disadvantaged by way of employment opportunities.

29. The Tribunal has carefully considered the reliable and credible country information as discussed above in these Reasons, and when applying that country information to the applicant’s claims the Tribunal is satisfied that Fiji’s economy may have suffered (as did most other countries) during the COVID-19 pandemic, but there is a resurgence of Fiji’s economy based largely upon its tourism.  

1. The Tribunal is satisfied (and so finds) that the economic situation of Fiji and the availability of more prosperous salaries and wages within Australia are circumstances that are faced by the general overall population of Fiji. There is no evidence currently before the Tribunal that satisfies any suggestion that the applicant would be specifically targeted in Fiji with respect to him being deprived of employment and the economic opportunities, as well as the protection from crime by the Fijian authorities.

2. Having considered all his claims, individually and cumulatively, and all the evidence and submissions, the Tribunal is satisfied (and so finds) that if the applicant returns to Fiji now or in the reasonably foreseeable future, his fears of living in a country where the wages and the economic opportunities are fewer than Australia does not meet the threshold of significant harm as provided within section 36(2A) of the Act.

   Overall conclusion

3. 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 section 36(2)(a) of the Act.

4. Having concluded that the applicant does not meet the refugee criterion in section 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in section 36(2)(aa) and is not satisfied that he is a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.

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

   DECISION

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

   Wayne Pennell
   Senior 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.

   …