2401816 (Refugee) - [2024] AATA 2736

2401816 (Refugee) [2024] AATA 2736 (17 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2401816
COUNTRY OF REFERENCE:                   Fiji
MEMBER:R Guemy
DATE:17 June 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 June 2024 at 11:30am
CATCHWORDS
REFUGEE – Protection Visa – Fiji – unable to obtain employment – to fear harm in the form of witchcraft – chance or risk of self-harm to be remote – breakdown of his relationship with his wife – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

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

The applicant, a [age]-year old male and citizen of Fiji born in [Town 1], claimed to have last entered Australia in December 2020. He applied for a protection visa on 4 November 2023.
CLAIMS AND EVIDENCE
Evidence given to the Department
The applicant provided a copy of the bio page of his Fijian passport issued on [date] 2014.
In response to a question on the protection visa application form asking whether he had experienced past harm in Fiji, the applicant answered ‘No’.
In his written protection visa application the applicant otherwise claimed that:
i.he came to Australia through the Pacific Labour Scheme to work in the farm. His term is expiring soon and there is no extension of contract which is the reason he was applying for a protection visa;
ii.his future looks bleak and he needed to work in Australia in order to support his family in Fiji;
iii.life in Fiji is hard and only those people that are qualified get to find a job whereas people like him are left behind;
iv.the rich are getting richer and the poor are getting poorer in Fiji;
v.if given an opportunity in Australia, he can support his family in Fiji;
vi.he could not relocate in Fiji because it is a small island nation where people know each other and moving is not an option;
vii.he won’t be able to find a job in Fiji; and
viii.Australia offers a greater opportunity for him in finding a job in which he can support his family in Fiji.
The Department’s delegate did not invite an applicant to attend an interview.
The delegate found that the applicant’s claim that he would experience economic hardship in Fiji as a result of being unable to obtain employment did not relate to any of the reasons in s 5J(1)(a) and there was no other information to suggest that he would be subject to harm on his return to Fiji for one or more of those reasons. There was also no other information to suggest that the applicant would be unable to obtain employment for one or more of those reasons. The delegate was not satisfied that the applicant was a refugee as defined in s5H(1) of the Act. Accordingly, he found that the applicant was not a person in respect of whom Australia has protection obligations as provided for in s 36(2)(a) of the Act.
In respect of the complementary protection criterion, the delegate found that the applicant’s claims to experience economic hardship as a result of being unable to obtain employment did not amount to being arbitrarily deprived of his life, having the death penalty carried out on him or being subjected to torture. The delegate further found that the economic hardship the applicant claimed to fear did not involve an act or omission by a perpetrator whereby the infliction of the requisite level of pain, suffering or humiliation was intentional. The delegate found that any economic harm would not amount to significant harm in s 36(2A)(a) to (e).
The delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Fiji, there was a real risk the applicant would suffer significant harm as defined in s 36(2A) of the Act. He was therefore not satisfied that the applicant was a person in respect of whom Australia had protection obligations as provided for in s 36(2)(aa) of the Act.
On 30 January 2024, the delegate decided to refuse to grant the applicant a protection visa.
Evidence given to the Tribunal
On 3 February 2024, the applicant applied to the Tribunal for review of the delegate’s decision.
In a letter emailed to the Tribunal on 13 April 2024, the applicant provided the following further written claims and evidence to the Tribunal:
i.after his last year of school, he moved from town to town, to wherever anyone offered a roof over his head;
ii.he stole food and clothing, he shoe-shined and borrowed a wheelbarrow from a friend and would carry shopper’s groceries from supermarkets and markets to the bus stand or taxi base areas for $2.00;
iii.because of this life, he was suicidal and tried to take his life two times, but his faith and belief that he will one day overcome all this kept him going;
iv.most nights he cried myself to sleep and wake up hoping for a better day.
v.his dad has land [but] has never tried to pursue it as he believes that due to witchcraft and a greedy elder brother, he never wanted to live in the village;
vi.after the applicant’s mum died being the youngest in the family, the applicant moved around with his father everywhere or his father would leave the applicant with friends and families and come back a year later or so and take him again;
vii.in November 2011 the applicant’s older brother and my dad tried to reunite the family and so we presented the traditional ceremony to his big uncle, to go back to my village;
viii.the uncle accepted but we still live in fear of our lives every day, not to disappoint my big uncle in any way, or someone might suspiciously get sick or die;
ix.as it has happened, where there was no medical reason, but herbal medicine, priests and witch doctors cured;
x.he has nothing to go back home to;
xi.he never completed my education and his government has never assisted him in any way. If they did then it would be meant for someone else not for me;
xii.because everyone is living in poverty, he sometimes feels he plant only for others to feed off or steal;
xiii.he doesn’t have any hope in the Fijian government and was too busy worrying about where my next food is coming from or where he was going to sleep for the night;
xiv.he works hard with any opportunity given to him and would like to put himself back into school;
xv.he has a son born in [year], which he is supporting and hopes that one day he will give him a good future here; and
xvi.the house he has paid for to be built is now being occupied by his brother and sisters.
Tribunal hearing – 22 April 2024
The applicant appeared before the Tribunal on 22 April 2024, however due to an administrative error, the Tribunal had not booked a Fijian-English interpreter as requested by the applicant and decided to adjourn the hearing to a later date so that an appropriate interpreter could attend.
Resumed Tribunal hearing – 3 June 2024
The applicant appeared at the resumed hearing on 3 June 2024 to give evidence and present arguments in relation to the issues relating to the decision under review. The applicant confirmed that he was feeling well and was able to answer the Tribunal’s question and participate in the hearing. He also confirmed that he was healthy and was not suffering from any medical conditions which would interfere with his ability to participate in the hearing. He was not taking any medication. The Tribunal was satisfied that the applicant had a meaningful opportunity to participate and to give evidence and present arguments to the Tribunal at the hearing.
The resumed hearing was conducted with the help of an interpreter in the Fijian and English languages who attended the hearing via MS Teams video call.
Preparation of protection visa application
The Tribunal discussed with the applicant the manner in which his protection visa application was prepared and lodged. The applicant told the Tribunal that he had paid a lady named “[Ms A]” $200 to prepare his protection visa application. He gave her information and details that she needed and she filled in the form for the applicant. The applicant also told the Tribunal that “[Ms A]” had put information in his protection visa application that he had not authorised and that was why he sent the letter emailed to the Tribunal on 13 April 2024 setting out further claims and evidence (summarised at paragraph 11 above).
When the Tribunal asked the applicant at the beginning of the hearing whether there was anything that he wanted to change or add to his protection visa application, the applicant said that since arriving in Australia, he has been able to improve his employment opportunities and to support his family and dad build a home in Fiji from what he has earned in Australia, that he didn’t have the opportunity to further his education in Fiji because of his family situation but that he might be able to further his education and upskill himself by remaining in Australia.
Applicant’s background
The applicant gave the Tribunal the following personal information at the Tribunal hearing:
i.he was married, though separated due to marital problems, and his wife currently lived in her home village [with] their [age]-year old son who was going to school there;
ii.he had [brothers] and sisters, one of whom was deceased;
iii.his siblings variously live in the applicant’s home village of [Village 1], [and other villages] in Fiji and one of his brothers lives in [Country 1];
iv.his father lives in [Village 1] with one of the applicant’s brothers and one of his sisters in the house that the applicant built and paid for with money he had earned from working in Fiji and then in Australia;
v.he has positive relationships with his siblings and father and there was no conflict with them;
vi.he went to primary school and high school in the Suva and [Town 1] regions, leaving school before finishing his final year of high school, and had done no other study either in Fiji or since arriving and living in Australia in late 2020;
vii.he resided in [Village 1] from 2012 until leaving Fiji to come to Australia in 2020;
viii.he had also lived in [other cities] in 2011 and 2012, respectively;
ix.he had variously worked in Fiji as a subsistence farmer in his home village of [Village 1], a [occupation] in [another city], a [occupation] in a [factory] in Suva, and a [occupation] for [a workplace];
x.since coming to Australia he had worked in [a city] from 2020 until 2023 and currently as [an occupation] in Sydney; and
xi.he was currently residing in the Sydney suburb of [Suburb 1], earning approximately $900 per week and was sending $300 to his family per fortnight to his dad and brother and also to his wife to pay for his son’s expenses.
Past harm
When the Tribunal asked the applicant whether anything had happened to him while he was living in Fiji, he said that there was a lot of rivalry in [Village 1] village, which consisted of harsh words and occasionally assault, something that had happened between his dad and his uncle and also involving his elder siblings. He said that this occurred due to disagreements within the village and clan over the use of communal land and that where there were disagreements or arguments villagers and clan members would trample on one another’s crops.
The applicant said that his uncle had performed witchcraft, claiming that this had caused the applicant to have a serious illness in his final year of high school and to have not had any success growing crops when he was living in Fiji. He also gave an example of another villager going out to get a good education only then to return to the village without any success.
The applicant confirmed, however, that he had not suffered any physical violence with anyone and had not experienced any problems with the Fijian government, police or authorities when he lived in Fiji in the past.
The applicant said that he had never gone to Fijian police for help with any problems because it was not in his nature to go and complain to the police when he has problems. He also confirmed that he had not moved to another city or area of Fiji to avoid the alleged problems in [Village 1] village because he didn’t have anywhere else to go to or family he could trust to live with.
Future harm
In response to the Tribunal’s questions, the applicant said that he feared jealousy and envy from his close relatives, villagers and clan members. He said that they would be this way because the applicant had been able to come to Australia and secure things that they cannot. He said that he would be subjected to curses and harsh words and that others will remind him of his broken marriage and will use hurtful words towards him. He also said that his uncle would resort to witchcraft, including inflicting the applicant with unexplained sickness and unemployment.
The applicant also said that he would return to a situation of poverty if he had to return to Fiji.
Because the applicant had claimed in his letter emailed to the Tribunal on 13 April 2024 to have attempted suicide on two occasions in the past, the Tribunal asked him whether he would attempt self-harm if he returned to Fiji, the applicant said that there was a possibility for this. However, he had also said during that hearing that while suicidal thoughts have crossed his mind in the past, he was grateful for the support system of friends and cousins who have encouraged him to move on with life.
The applicant otherwise indicated that no other things would happen to him if he returned to Fiji in the future.
During the hearing, the Tribunal brought to the applicant’s attention the existence of country information about the Fijian economy and labour shortages in Fiji which indicated that he would be able to find suitable work to support himself if he returned to Fiji. The Tribunal also raised its concerns that any economic difficulty that he might experience if he returned to Fiji did not appear to be intentionally inflicted on him and was a problem that affected all Fijian citizens and not only him. The applicant did not provide any comment or response to such information or concerns.
In addition to this, the Tribunal raised its concern with the applicant that his claims to fear harm in connection with witchcraft appeared to be speculative. The applicant responded by indicating that someone from his village returned from Australia and died before getting halfway through building his house.
The applicant confirmed to the Tribunal that he otherwise did not wish to make any further claims for protection.
COUNTRY INFORMATION
Fijian economy
The ‘DFAT Country Information Report Fiji’, 20 May 2022, Department of Foreign Affairs and Trade, provides the following on the Fijian economy:
2.7      The World Bank defines Fiji as an upper-middle income country. Fiji is one of the largest economies in the Pacific region, but about a quarter of the size of the next largest, Papua New Guinea. Its per capita gross domestic product (GDP) is much higher than most Pacific neighbours’.
2.8      Tourism accounted for about 40 per cent of the pre-COVID-19 economy; the pandemic caused significant disruption. According to the Asian Development Bank, GDP growth was negative 15.7 per cent in 2020. Remittances from the diaspora, another important source of income, were also badly affected by the pandemic. Agricultural production, especially of fruits and vegetables, sugar and kava, is important to the economy but vulnerable to cyclones.
2.9      About 30 per cent of the population was living in poverty in 2019, according to World Bank data, but estimates of poverty rates vary and the full impact of the COVID-19 pandemic is not known. According to the International Labour Organization (ILO), subsistence farming and kin-based wealth redistribution leads to a lower rate of extreme poverty than might otherwise be expected.
2.10     Corruption is not a significant problem. A 2021 Transparency International study found 62 per cent of Fijians believe politicians are corrupt and 61 per cent believe businesses obtain government contracts through corruption. However, only 5 per cent of Fijians reported paying a bribe to obtain a service in the past year, the lowest by far of the Pacific countries studied. An anti-corruption commission exists and corruption prevention is covered as part of the school curriculum. Overall, the day-to-day risk of corruption is low.
Labour shortages in Fiji

30. ‘Skilled labour loss remains a risk to economic growth’, The Fiji Times, published 30 August 2023 (last updated 2 December 2023), accessed 22 April 2024, provides the following on labour shortages in Fiji:
Loss of labour continues to present a challenge to businesses in Fiji, as highlighted by business executives who were part of a survey conducted by the ANZ Research team for its June 2023 survey.
“We surveyed about 350 ANZ customers across a range of industry sectors,” shared ANZ’s international economists Tom Kenny and Dr Kishti Sen.
According to the responses received from business executives, shortage of labour, especially skilled labour, remains as the main risk to Fiji’s growth prospects.
It highlighted that Fiji continued to lose a large share of its workforce to overseas employers, and that was leading to an acute shortage of workers in key sectors including construction, manufacturing and tourism.
This loss was leading to wage increases that were above both inflation and improvements in productivity.
Meanwhile 60 per cent of the executives surveyed anticipate consumer price inflation (CPI) will rise over the next 12 months.
According to ANZ’s economists lifting female participation in the workforce is one way to overcome the attrition of labour.
With the female labour force participation rate hovering around 40 per cent, the report says there is scope to push it higher and above 60 per cent, which is the average for developing countries.
Some of the executives also suggested that legislative and policy stability and timing of some major project commencements could also be a solution to overcoming labour shortages.

31. ‘400 apprenticeship grants allocated to mitigate labour shortage in Fiji’, Karisha Kumari, Fiji Village, 19/12/2023, accessed 22 April 2024, also provides the following on measures that the Fijian government is implementing to address labour shortages in Fiji:
As Fiji is faced with a shortage of skilled and professional labour due to labour migration and mobility, the Fiji government through the Ministry of Employment, Productivity and Industrial Relations, is collaborating with the Fiji National University and the Tertiary Scholarship and Loans Service for the provision of 400 apprenticeship grants to mitigate the issue of labour shortage
While speaking at the first employer’s consultation meeting for the apprenticeship grants, Minister for Employment, Productivity and Industrial Relations, Agni Deo Singh says the Ministry is committed to assisting the apprenticeship scheme as the government is aware of the impact of labour migration.
He says labour mobility will always happen however, we have to mitigate it by training and by retaining whereby they now have scholarships for skills training that are being provided and are being portioned according to the needs.
Singh says the apprenticeship incentive in the current budget is topping up the minimum wage by $2 per hour and the other option is to pay 50% of the tuition fees.

TSLS Chief Executive Officer, Hasmukh Lal, says the success of apprenticeship prevalent in the 80s and 90s was compelling to reevaluate incentives for employers and students to join the schemes to mitigate labour shortages and to grow an economy, we need people in the workforce.
National Training and Productivity Centre Manager National Apprenticeship and Trade Test, Alvin Lal says the provision of the grants would strengthen the technical and vocational education and training sector in Fiji.
He says these provisions of apprenticeship grants will see a further increase in our TVET programmes, and for apprenticeship which will directly benefit employers and students.
The 400 apprenticeship grants are allocated in the current national budget and will be rolled out in January 2024 which is the first allocation of grants provided by the coalition government through TSLS and FNU’s NTPC.

32. ‘More than 12,000 Fijians have left Fiji for employment reasons overseas in the first 9 months of this year, 2,400 Fijians have emigrated in the first 9 months of this year’, Mosese Raqio, 25/11/2023, accessed 22 April 2024, further provides the following on labour shortages in Fiji:
More than 12,000 people have left Fiji for employment reasons, while more than 2,400 have emigrated in the first nine months of this year.
These were the statistics revealed by the Ministry of Finance, Strategic Planning, National Development and Statistics through the Strategic Planning Office after undertaking their survey.
Deputy Prime Minister and Minister for Finance, Professor Biman Prasad says a Training and Skill Needs Analysis Survey 2023 has started which aims to identify priority areas of training and skill needs for human capital planning and development in Fiji.
The Deputy Prime Minister says last year, 16,967 people left Fiji for employment reasons while 5,335 have emigrated.
Professor Prasad says this excludes residents going on student visas, which has picked up significantly.
He says Fiji is currently experiencing a wave of skill shortage and skills gap in key areas such as construction, nursing and specialist fields like telecommunication engineers, and aviation safety regulators among others, which is critical for economic growth and nation-building.
Professor Prasad says by participating in the survey, employers, ministries, CSOs and universities will contribute towards a comprehensive understanding of the skills that are in demand, the gaps that need to be addressed and opportunities that lie ahead for the nation.
The Deputy Prime Minister says insights gathered from the survey will guide the government’s policies and initiatives, ensuring that the education, training and other related projects are aligned to the needs of the sector.
He adds the findings from the survey will shape Fiji’s 5-Year National Human Resource Plan and also the new National Development Plan.
He adds Fiji has also been calling for visa-free travel between Australia as well as New Zealand and Pacific Island States as part of efforts to ease the travel process further.
Permanent Secretary for Finance Shiri Gounder says through a collaborative approach, the Ministry encourages both the private and public sectors to participate in the Training and Skill Needs Analysis Survey 2023.
He has reaffirmed that shared experience, needs and feedback matter in enabling the government to develop and implement relevant and sustainable policies to develop Fiji’s workforce.
Gounder adds together, they can bridge the skills gap between education and the industry by equipping the labour force with the required skills for the labour market.

33. ‘Labour shortages’, Shayal Devi, The Fiji Times, published 4 November 2023 (last updated 5 February 2024), accessed 22 April 2024, provides the following on labour shortages in Fiji:
Stakeholders in provincial councils across the country are vital players in addressing the skills shortage in the country.
This was the crux of the message delivered by Minister for Education Aseri Radrodro while opening a consultation session in Suva yesterday.
Organised by the Higher Education Commission Fiji, the event brought together representatives from provincial councils and other stakeholders to discuss this issue.
Mr Radrodro said the exchange of ideas signified the commitment to address the pressing issue of skilled labour exodus, while advancing solutions to training of the community.
He stated the labour shortages were happening in villages, tikina and at a provincial level.
“Our people are leaving for a variety of reasons, including higher wages, better career opportunities, better working conditions and a perceived lack of opportunities right here in Fiji,” Mr Radrodro said.
“While we cannot completely halt the movement of people seeking better prospects abroad, we can indeed address it proactively.
“Recognising that we may not always compete on salary packages offered overseas, we must focus on an alternative approach that can balance it and contribute to the talent pool.”
Mr Radrodro also acknowledged that the ministry played a crucial role in addressing this issue and said technical and vocational education and training (TVET) was a key focus for the Government.

Land rights and property law

The ‘DFAT Country Information Report Fiji’, 20 May 2022, Department of Foreign Affairs and Trade, provides the following on land rights and property law in Fiji:
Land rights and property law
2.24 Land rights are controversial in Fiji as they are in Australia. The colonial government allocated ancestral land to traditional owners who now own the vast majority of land in Fiji. Indo-Fijian indentured workers were not given access to land by the colonial government and iTaukei were prevented from working on the sugar cane plantations.
2.25 About 90 per cent of land is owned by traditional owners, with 6 per cent government-owned and 3 per cent freehold land. iTaukei owners often lease land to others through a government-coordinated leasing system. There are restrictions on the use of land; for example, agricultural land must be used for agricultural purposes, preventing land banking or alternative uses of the land. Leases are for a period of at least two years but land is usually leased for 30 years. Residential leases are longer and leases can be bought and sold.
2.26 Both iTaukei and Indo-Fijians lease land from traditional owners but it cannot be bought or sold, only leased. A tenant can be removed from land if it is not maintainedor used for its intended purposes (for example, if an agricultural lease does not commence farming activity within a certain time). This involves a breach of lease and a court process that can lead to eviction.
2.27 Informal land use (‘squatting’) is common. Most squatting is done with the permission of the land owner; for example, extended family using the land without a formal lease agreement. Informal land users have few legal rights and may be asked to leave at any time. Internal migration from rural areas to cities has increased the number and size of informal settlements in recent years.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
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.
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).
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.
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
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
The Tribunal has considered the copy of the applicant’s passport and his evidence given at hearing on 3 June 2024 and finds that he is a Fijian national. The Tribunal finds that Fiji is the applicant’s country of nationality for the purposes of s 5H of the Act and the receiving country for the purposes of s 36(2)(b) of the Act.
The Tribunal has considered the applicant’s written claims, submissions and his oral evidence given to the Tribunal at hearing on 3 June 2024.
When determining whether an applicant is entitled to protection in Australia, a decision maker is required to make findings of fact on the applicant’s claims that he or she is owed protection obligations. This process may involve an assessment of the credibility of the applicant and his or her other claims. When assessing credibility, a decision maker must be sensitive to the difficulties often faced by asylum seekers and should give the benefit of the doubt to those applicants who are generally credible, but are unable to substantiate all of their claims. However, a decision maker is not required to accept uncritically any and all allegations made by an applicant,[1] nor is it necessary for a decision maker to have rebutting evidence before he or she can find that a particular factual assertion by an applicant has not been made out.[2] Nor is a decision-maker required to accept claims which are inconsistent with the independent evidence regarding the situation in an applicant's country of nationality.[3]
[1] Randhawa v Minister of Immigration, Local Government and Ethnic Affairs [1993] FCA 592
[2] Selvadurai v Minister for Immigration and Ethnic Affairs [1994] 34 ALD 347
[3] Chan Yee Kin v Minister for Immigration & Ethnic Affairs [1989] HCA 62
It is the applicant’s responsibility to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations (however arising) and the Tribunal does not have any responsibility or obligation to specify or assist in specifying, any of the applicant’s claims, or to establish, assist in establishing, the applicant’s claims: s 5AAA. The Tribunal is not required to make an applicant’s case for him or her, but may ordinarily decide a review on what the applicant puts forward.[4]
Harm from uncle and witchcraft claims
[4] SZNWA v MIAC [2010] FCA 470 at [41]; SZLJK v MIAC [2008] FMCA 694 at [26].
The applicant has considered the applicant’s claims to fear harm in the form of witchcraft of witchcraft from him. Aside from the his assertion that his uncle had previously used witchcraft to make him sick and unemployed in Fiji, the applicant provided no corroborative evidence to support this claim.
The Tribunal accepts that the applicant may have been severely sick during his final year of high school and unemployed in the past when living in Fiji. The Tribunal also accepts that other villagers may have achieved little success after going away to study in the hopes of bettering their lives and may have died during the course of building their house in the village. However, the Tribunal finds that these are simply common incidents that people experience in their lives and were the result of regular transmission of diseases and economic conditions and that they were not associated with any form of witchcraft. The Tribunal also accepts that the applicant may not have had success growing crops in Fiji but finds that crop-growing can be impacted by weather, rainfall and soil quality, among various other factors. The Tribunal does not accept that the applicant’s past problems in growing crops is attributable to witchcraft by his uncle.
The Tribunal finds that any difficulties that the applicant may experience in terms of his health, employment or other areas of his life if he returned to Fiji would be due to the general vagaries and unpredictability of life. The Tribunal finds that there is no real chance that the applicant would experience any harm from his uncle in the form of witchcraft or anything else if he returned to Fiji in the reasonably foreseeable future.
Economic claims
The Tribunal has considered the applicant’s claims that he would return to poverty and experience economic difficulties if he returned to Fiji. These claims were broadly outlined in the applicant’s written claims, letter emailed to the Tribunal on 13 April 2024 and in his oral evidence to the Tribunal at hearing on 3 June 2024.
The Tribunal accepts the applicant’s claims to have left school before finishing high school and to have experienced economic difficulties in the past, including having to resort to stealing, shoe-shining and using a wheelbarrow to carry people’s groceries for a small fee to support himself. The Tribunal also accepts that the applicant’s earning ability and income here in Australia are superior to what might be available to him if he returned to live and work in Fiji now.
However, the Tribunal finds that his claim that he would return to poverty to be exaggerated. On his own evidence to the Tribunal, the applicant has a home in [Village 1] village where his father, brother and sister currently live. The Tribunal finds that he would be able to return there to live. The applicant claimed that this would not be possible because he would be a burden on his family and his family would not accept his wife due to her estrangement from the applicant and his family. The Tribunal finds the applicant’s claims about these purported impediments to be exaggerated. The applicant told the Tribunal that he built and paid for the construction of the house with money he earned in Fiji and Australia and so it would appear that he would have an entitlement to live there. In addition to this, the applicant told the family that he has positive relationships with his father and siblings and that they are a close family, and so the Tribunal finds that they would be happy to help and support him re-settle in Fiji by agreeing to live with them. As regards his alleged family’s non-acceptance of his wife, the Tribunal finds that while his family may express some displeasure at the applicant’s wife for living with them, it does not accept that this would be an impediment to the applicant living in [Village 1] village if he returned to Fiji in the reasonably foreseeable future.
Having regard to DFAT country information about the status of the Fijian economy as one of the largest in the Pacific region as well as recent media reporting that Fiji is experiencing labour shortages and employers have struggled to find local workers, the Tribunal finds that the applicant would be able to find appropriate work to support himself and his family if he returned to Fiji in the reasonably foreseeable future such that he would not suffer serious harm or significant harm. This is reinforced by the applicant’s evidence of his professional history in Fiji and more recently in Australia. The Tribunal finds that the applicant would be able to rely on his professional skills and experience in several different industries to find appropriate work upon return to Fiji in the reasonably foreseeable future.
Although the applicant claimed to be providing financial support to his family members in Fiji, he said this was namely his dad, brother and son. Given that other members of his family have continued to live and work in Fiji or, in the cases of his sisters, be supported by their husbands there, even without the applicant’s financial support from Australia, the Tribunal again finds that it would be possible for the applicant to find appropriate work to support himself and his family if he returned to Fiji in the reasonably foreseeable future.
While the applicant’s income and earning capacity in Fiji might be inferior to what he has become accustomed to from living and working in Australia, the Tribunal finds that this is a by-product of the economic circumstances in Fiji and does not amount to systematic and discriminatory conduct as required by s 5J(4)(c). The Tribunal also finds for the purposes of s 36(2B)(c) that the economic conditions in Fiji is a risk faced by the population of Fiji generally and is not faced by the applicant personally.
Self-harm claims
Although the applicant claimed in his letter emailed to the Tribunal on 13 April 2024 that he had previously attempted suicide on two occasions in Fiji, when the Tribunal explored these claims with him at hearing, the applicant indicated that he had not in fact attempted self-harm on those occasions but that it was something that he had contemplated due to domestic and marital issues with his wife at that time.
The Tribunal is particularly sensitive to issue of self-harm and has carefully considered the applicant’s risk factors in this respect. It places considerable weight on the applicant’s evidence given at hearing when asked whether he suffered from any mental illness, namely that he suffered from lapses in concentration due to his mother allegedly having been assaulted when she was pregnant with the applicant but did not identify anything else in this respect. The Tribunal has also taken into account the applicant’s evidence that he is not currently taking any medication.
The applicant gave evidence that he and his wife have experienced marital problems and are currently separated. The Tribunal accepts that this is ongoing and has caused emotional turmoil for him, however in spite of these difficulties he has managed to demonstrate his resilience and by moving to Australia and living and working here for a number of years to support not only himself but also members of his family, including his father, brother and son. In addition to this, the applicant told the Tribunal that he speaks with his son weekly and really misses him.

The applicant claimed that there is a “possibility” he would engage in self-harm if he returned to Fiji when asked by the Tribunal, however when the Tribunal asked him to elaborate on what he meant by this, the applicant referred to others who had returned to Fiji to build their houses with money that they had earned from working in Australia but then falling back into the so-called grind of poverty.
Having regard to the totality of the applicant’s personal circumstances, including his medical history and family support, the Tribunal considers the chance or risk of self-harm to be remote. Although returning to Fiji and adjusting to life there after having lived and worked in Australia for several years would be challenging for the applicant and may impact him emotionally, the Tribunal finds that there is no real chance or real risk that this or any other factors would lead him to engage in any form of self-harm, including suicide, if he returned to Fiji in the reasonably foreseeable future.
Other claims
The Tribunal accepts that the applicant may be subject to verbal taunting or “harsh words”, as he put it, from family members or villagers if he returned to [Village 1] and that this may be in relation to the breakdown of his relationship with his wife. While this may not be pleasant to experience, the Tribunal finds that it does not amount to serious harm for the purposes of s 5J(4)(b) and (5) or significant harm as set out in s 5 and s 36(2A).
In his oral evidence to the Tribunal at hearing, the applicant alluded to disputes and arguments over communal land in his home village causing verbal and sometimes physical conflict between villagers and family members in the past. Although the applicant did not expressly claim to fear harm on this basis, the Tribunal has treated this as an implied claim that arises on the material before it. The Tribunal has considered the applicant’s implied claim and accepts that land disputes arise in Fijian villages and that this may happen in the applicant’s village in the future, however the Tribunal finds that there is no real chance or real risk that any such dispute would escalate to a point where the applicant would suffer serious or significant harm. The applicant himself told the Tribunal that while he had seen land disputes take place in his home village, he had never been physically harmed in connection with any such events.
Refugee criterion
Having regard to the findings of fact above, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution within the meaning set out in s 5J. As such, the Tribunal is not satisfied that the applicant is a refugee within the meaning set out in s 5H. For these reasons, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection criterion
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).
Having regard to the findings of fact set out above, the Tribunal is not satisfied that it has 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. For these reasons, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
R Guemy
Member
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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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.
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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.
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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.
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36     Protection visas – criteria provided for by this Act
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(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.
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