2401954 (Refugee)
[2024] AATA 3122
•24 April 2024
2401954 (Refugee) [2024] AATA 3122 (24 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2401954
COUNTRY OF REFERENCE: Fiji
MEMBER:Wayne Pennell
DATE:24 April 2024
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 24 April 2024 at 1:24pm
CATCHWORDS
REFUGEE – Protection Visa – Fiji – applicant failed to respond to the requested information – inflation and the rising cost of living in Fiji – economic situation in Fiji – identical claims – has not provided any evidence, information or material to support the claims – delay in applying for protection in Australia – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 36, 65,424, 499
Migration Regulations 1994, Schedule 2
CASES
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
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 of 2 February 2024.
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 his application was refused 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 had protection obligations.[4]
[2]The applicant’s application was received by the Department on 9 November 2023..
[3]Migration Act 1958 (Cth), s 5H.
[4]Migration Act 1958 (Cth), s 36(2)(a), s 36(2)(aa).
The applicant filed an application with the Tribunal to review the delegate’s decision (‘review application’).[5] At a subsequent time, and because the applicant had not provided the Tribunal with a copy of the delegate’s decision record, the Tribunal wrote to him pursuant to section 424A of the Act. He was asked to respond to the Tribunal by 5 April 2024, and because he did not respond to the Tribunal within the specified and appropriate timeframe, the Tribunal decided to proceed to make a decision in respect to his Protection visa application without taking any further steps to obtain his response of comments. This is explained in greater detail later in these Reasons.
[5]The applicant’s review application was filed with the Tribunal on 6 February 2024.
CRITERIA FOR A PROTECTION VISA
The measures for a Protection visa are set out in the Act[6] and Schedule 2 to the Migration Regulations1994 (Cth) (‘the Regulations’). An applicant for the visa must meet one of the alternative criteria as provided in the Act.[7] 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.
[6]Migration Act 1958 (Cth), s 36.
[7]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).
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.[8]
[8]Migration Act1958 (Cth), s 36(2)(a).
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.[9] 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.[10]
[9]Migration Act1958 (Cth), s 5H(1)(a).
[10]Migration Act1958 (Cth), s 5H(1)(b).
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.[11] 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.[12]
[11]Migration Act 1958 (Cth), s 5J(1).
[12]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.
If a person is found not to meet the refugee criterion in the Act,[13] 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’).[14] 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.[15]
[13]Migration Act 1958 (Cth), s 36(2)(a).
[14]Migration Act 1958 (Cth), s 36(2)(aa).
[15]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).
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 them; 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.[16]
[16]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).
Notwithstanding that, the Act goes on to provide for certain circumstances where there is taken not to be a real risk that they will suffer significant harm in a country, which arise 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.[17]
[17]Migration Act 1958 (Cth), s 36(2B).
COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY
The applicant claims to be a citizen of Fiji and provided a copy of his passport to the Department to authenticate this claim. The Tribunal accepts his 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.[18]
[18]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).
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.[19]
[19]Migration Act 1958 (Cth), s 36(3).
MANDATORY CONSIDERATIONS
In accordance with Ministerial Direction No. 84 made under the Act,[20] the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and the 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.
BACKGROUND AND APPLICANT’S EVIDENCE
[20]Migration Act 1958 (Cth), s 499.
Background, application and claims
The applicant’s migration history held by the Department shows that on 19 January 2023 he was granted a Temporary Work (International Relationship) (subclass 403) visa (‘work visa’). He arrived in Australia on [date] February 2023 subject to that work visa, and that visa was valid until [date] November 2023. On [date] November 2023, which is three days prior to when that work visa was due to expire, the applicant lodged with the Department an application for a protection visa.
Very little is known about the applicant apart from what he disclosed in his application. He is able to read, write and understand the English language, and although he does not list within his application any details about his family in Fiji, he did disclose that he is in touch with them by telephone once a month. He nominated that he had not been employed in Fiji, and was unemployed at the time that he made his application for a Protection visa. There is indication that his family had financially supported him when he studied, although he did not nominate that those studies were after he completed his High School education in 2010.
Extracted from the applicant’s Protection visa application and inserted below into these Reasons are the claims he expressed as to why he has a well-founded fear of persecution if he returned to Fiji.
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 for why this applicant is unable to relocate. No others
On 14 November 2023, the Department wrote to the applicant and acknowledged receiving his application. In that letter, he was invited to an appointment with the Department on 3 January 2024. The purpose of that appointment was for him to provide his personal identifying particulars. The letter also reminded the applicant that as his application form stipulated, all claims, supporting documentation and evidence should have been provided when he lodged his application. Further to that, it was suggested to him that he may take with him to the scheduled appointment any additional information he would like considered by the Department. Although he attended the appointment, he did not provide any additional information, evidence or material to the Department.
After undertaking an assessment of the applicant’s application, on 2 February 2024 the delegate made a decision to refuse the application. The applicant was advised of that decision on the same day. In arriving at the decision, the delegate assessed that the applicant’s claims were:
(a)He left Fiji to relocate to a safer environment with a better economy;
(b)His life is affected by inflation and the rising cost of living in Fiji while having to support his parents and siblings;
(c)He did not relocate to another area of Fiji because he would have faced the same issues;
(d)If he returned to Fiji, his safety will be affected by rampant criminal activity in Fiji;
(e)The Fiji authorities are unable to offer him protection, and there are many complaints about government bodies in Fiji; and
(f)There was no area in Fiji where he would not face harm or mistreatment.
Subsequently, on 6 February 2024 the applicant lodged with the Tribunal an application to review the delegate’s decision (‘review application’). Although it appears that he provided the Tribunal with a copy of the Department’s notification letter and other incidental documents including his birth certificate, he did not provide a copy of the delegate’s decision.
On 15 February 2024, the Tribunal dispatched an email to the applicant’s nominated email address a letter acknowledging that his review application had been received by the Tribunal. In that email, the Tribunal identified to him that he had not provided the decision record and in order to assist the Tribunal in processing his review application, he was asked to provide the decision record. No response was received from the applicant and nor did he provide a copy of the decision record.
On 6 March 2024, the Tribunal dispatched to the applicant an email advising him that his file was being prepared to be constituted to a member of the Tribunal. He was provided with a link to a pre-hearing information forma and asked to complete that form and return it to the Tribunal. He returned the completed form the same day.
On 20 March 2024, the Tribunal dispatched to the applicant a letter advising him that the Tribunal had considered all the material relating to his case but was unable to make a favourable decision on that information alone. He was invited to appear before the Tribunal at a review hearing to give evidence and present his arguments. The hearing was scheduled for 1 May 2024, commencing at 9:30am. Included in that letter was a ‘Response to hearing invitation’ template, and he was asked to complete the template and return it to the Tribunal within seven days.
On the same day (20 March 2024), the applicant returned the completed template to the Tribunal indicating that he would be attending the scheduled hearing. The template also indicated that he would not be relying on any witnesses, or other written submissions, country information, written witness statements or other evidence.
Because the applicant had not provided the Tribunal with a copy of the delegate’s decision, on 22 March 2024 the Tribunal sent an email to him and enclosed a letter pursuant to section 424A of the Act (‘section 424A invitation’). It was explained to him that because the Tribunal was in possession of certain information which the Tribunal considers would, subject to his comments or response, be the reason, or part of the reason, for affirming the decision under review, the Tribunal was required by the Act to invite him to comment on or respond to that certain information. That information related to Fiji’s economy and the claims he made within his application being identical to claims found in another application lodged by a person from Fiji.
It was further explained that the Tribunal was required to give to him, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information the Tribunal considered would be the reason, or part of the reason, for affirming the decision that is under review; and to ensure, as far as is reasonably practicable, that he understood that the certain information was relevant to the review. The consequences of that certain information being relied on in affirming the decision under review were explained to him; and he was invited to comment on or respond to that certain information.
Described in the section 424A invitation were the claims which the applicant relied upon. Also described were the delegate’s findings in regard to the assessment undertaken of his claims. Particular attention was paid by the Tribunal in explaining to the applicant that the consequences of that information being relied upon in affirming the decision under review would be that the Tribunal affirms the decision and he was invited to comment on or respond to the certain information. It was explained to him that if he decided to make a comment or a response, that should be provided to the Tribunal by 5 April 2024, and if the comment or response was in a language other than English, then it must be accompanied by an English translation from an accredited translator.
His attention was drawn to the importance of providing his written comments or response by 5 April 2024 and it was expressed to him that he could ask the Tribunal for an extension of time in which to provide his comments or response, and if he made such a request, it must be received by the Tribunal by 5 April 2024, and he must state the reason why the extension of time is required.
Finally, the applicant was advised that if the Tribunal did not receive his comments or response within the period allowed or as extended, the discretion was available to the Tribunal to make a decision on the review without taking any further action to obtain his views on the information and he would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.
The applicant did not respond to or make any comment in respect to the section 424A invitation within the appropriate allocated time of 5 April 2024, nor did he seek an extension of time to provide a response or to make comment.
On 8 April 2024, a detailed letter was emailed to the applicant outlining the history of his application to the Department, as well as his review application lodged with the Tribunal. The letter also explained the consequences of him not responding to the section 424A invitation sent to him on 22 March 2024. Because he had not responded within the specified timeframe, or asked for an extension of time, the Tribunal had decided to proceed to make a decision in respect to his application for a Protection visa without taking further steps to obtain his response or comments, and he had lost his right to appear before the Tribunal.[21] He was also advised that the review hearing scheduled for 1 May 2024 had been cancelled.
[21]Migration Act 1958 (Act), s 424C(2); s 425(3).
On the morning of 9 April 2024, the applicant telephoned the Tribunal to discuss the letter he received on 8 April 2024 advising him that the hearing had been cancelled and he had lost his right to appear before the Tribunal. When speaking to a Tribunal officer, the applicant explained that he had not received the section 424A invitation. The Tribunal officer asked him to write to the Tribunal and outlined the events as to why he had not received the letter and section 424A invitation. The applicant then asked as to whether that meant that the hearing was ‘back on’, and the Tribunal officer inadvertently told him that, ‘for the moment’, the hearing was still cancelled. To make sure the applicant was not confused by the comment ‘at the moment’, the Tribunal later wrote tom him on 10 April 2024. He was advised that he should not take any comfort in the Tribunal officer’s expression ‘for the moment’, as the Tribunal had made the decision to cancel the hearing for the reasons already explained.
The Tribunal also explained to him that although it was noted that he had never provided any evidence, information or material to the Tribunal in regard to the protection claims that he relies upon, the opportunity still existed for him to provide that evidence up until the time the Tribunal made a decision in regard to his application. At the time of the completion of these Reasons and the making of the Tribunal’s decision, he still had not provided any information, evidence or material to the Tribunal.
Returning to the Tribunal’s letter to him, it was also explained that the Tribunal’s file has been carefully examined and it has been confirmed that every email the Tribunal has sent to him had been dispatched to the email address which he provided to the Tribunal when he lodged his application to review the delegate’s decision and none of those emails ‘bounced back’ as being undelivered.
On 9 April 2024, the applicant emailed the Tribunal in regard to the cancellation of the scheduled hearing. He described that he had received the Tribunal’s email on 22 March 2024 inviting him to the review hearing, so he completed the template and sent that back to the Tribunal. He then claimed that he had not received any other email until being advised by the Tribunal on 8 April 2024 as described above. The Tribunal has carefully examined the Tribunal’s file and none of the emails sent to the applicant ‘bounced back’, indicating that they were all received by the applicant.
It appears from what he said in his email that he received the hearing invitation, however his email dated 9 April 2024 purports that the invitation was received on 22 March 2024. This is incorrect, and as it has been described above in these Reasons, the invitation was emailed to him on 20 March 2024, and on that same day, he completed the template and returned it (by email) to the Tribunal. It was the section 424A invitation which was sent to him on 22 March 2024 (emphasis added).
Returning briefly to his comment that he had not received ‘any other email’, following his email of 9 April 2024, which is discussed above, the applicant has sent two later emails to the Tribunal on 10 April 2024 in which he asked for a ‘Medicare letter’ and he updated his residential address. The Tribunal is satisfied that his email address is operating effectively to send and received emails.
The Tribunal accepts that the applicant responded to the hearing invitation and completed the ‘Response to hearing invitation’ template, and returned that template to the hearing. That was undertaken on the same day that he received the invitation (20 March 2024). However, two days later, on 22 March 2024, the Tribunal sent him the section 424A invitation which he did not respond to within the appropriate time frame. The question which arises in the mind of the Tribunal is whether the applicant, by his response to the hearing invitation, this constituted a response to the section 424A invitation such that he retained his entitlement to attend a hearing.
The Tribunal finds that the applicant’s response to the hearing invitations cannot be considered as a response to the section 424A invitation. Guidance has been provided to the Tribunal in earlier determinations of the Court which found that because the template form (Response to the Hearing Invitation) allows the applicant to notify the Tribunal of any requirements for the hearing, but it cannot be seen as a ‘reply’ or ‘answer’ directed to the information requested by the Tribunal in a section 424A invitation.[22]
[22]McDonagh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 226, [58] – [59] citing Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 93 [64] – [65].
Therefore, because the applicant has not responded to the section 424A invitation within the allocated time frame, the Tribunal exercised its discretion to make a decision in this matter in the absence of the Applicant. That is, he lost his entitlement under the Act to appear before the Tribunal to give evidence and present his arguments.
DELAY IN LODGING APPLICATION
Before turning to any discussing about the applicant’s claims and his case, the Tribunal considers that an important issue which arises in this case is the significant delay between when the applicant arrived in the country to when he lodged his Protection visa application with the Department.
The applicant arrived in Australia on [date] February 2023 subject to the provisions of a work visa which was valid until [date] November 2023. On 9 November 2023, which is three days prior to expiry of that visa, he lodged with the Department his application for a Protection visa. The period between when he arrived in the country to when he lodged that application is approximately nine months, which the Tribunal finds to be a significant period of delay between those two occasions.
The Tribunal is aware that a delay in applying for protection should not be the sole reason for doubting an applicant’s claims. There should be other reasons to support a finding that an applicant’s claims are not credible and the significance of any delay will depend upon the particular circumstances surrounding the delay and the reasons given for the delay.[23]
[23]Selvadurai v Minister for Immigration and Ethnic Affairs (1994) ALD 346: Anandaraj Subramanian v Minister for Immigration and Multicultural Affairs, unreported, Federal Court of Australia, Carr J, 10 March 1998.
Upon review of the Department’s file, the Tribunal is satisfied (and so finds) that after filing his application for a Protection visa, he did not engage with the Department so far as providing any evidence, information or material to support his claims or to explain why there had been that significant delay of approximately nine months before he lodged his application.
The Tribunal has given careful consideration to the delay of nine months between his arrival in Australia to when he made his application for a Protection visa, and the Tribunal is satisfied (and so finds) that under the circumstances relating to the features of this case, that delay is a significant delay. In respect to any consideration given by the Tribunal about that significant delay, guidance is found by the determinations reached in Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997 (‘Subramaniam‘) where the Court held that even a three-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.
When considering the nature of the claims made, along with the timing of his application as it is associated with the expiry of his work visa, the Tribunal is not satisfied as to genuineness or depth of his claimed fear of persecution should he return to Fiji. Therefore, the Tribunal is satisfied (and so finds) that the significant delay can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm because a significant delay is not behaviour indicative of someone who fears for their physical safety.[24]
[24] ZHANG SU RONG V REFUGEE REVIEW TRIBUNAL AND ANOR [1997] FCA 423; KAVAN V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS [2000] FCA 370, [22].
A further concern relating to the veracity or the authenticity of the applicant’s application and his claims were expressed to him in the section 424A invitation sent to him on 22 March 2024. The Tribunal was in possession of certain information that the information he provided within his Protection visa application in support of his claims for protection were identical to information in another application made by another person from Fiji.
Those claims within the applicant’s application and the other person’s application are identical so far as the words used and the formatting, including the same grammatical errors. This in itself raised a concern for the Tribunal about whether the claims provided in the applicant’s application relate specifically to him and his personal circumstances, or whether the claims were copied from another document. He was invited to comment on or respond to that certain information, however, as already explained in these Reasons, he did not respond or make any comment.
APPLICANT’S CLAIMS
It appears from the claims made by the applicant they specifically relate to two issues, firstly the economic situation in Fiji, and state protection such as to whether the Fijian authorities can protect him from harm.
The applicant claims that he left Fiji to relocate to a safer environment with a better economy because his life has been affected by inflation and the rising cost of living in Fiji while having to support his parents and siblings. In explaining why he did not relocate to another part of Fiji for his own protection, he said that he would have faced the same issues no matter where in Fiji he moved to.
He also claimed that if he returned to Fiji, his safety will be affected by what he described as rampant criminal activity in Fiji and there was no area within Fiji where he would not face harm or mistreatment. In conclusion, he claims that the Fijian authorities are unable to offer him protection and there are many complaints about government bodies in Fiji.
Firstly, when close examination is made of the claims a significant feature is that they are vague, they are ambiguous and they lack specificity. Despite opportunities provided by both the Department and the Tribunal, he has not provided any evidence, information or material to support the claims he makes. He makes no reference of him being specifically targeted because of the economic situation in Fiji, and nor has he claimed that he was targeted or harmed in any way when he was living in Fiji because of any suggested rampant crime rate.
COUNTRY INFORMATION
Available for the Tribunal’s consideration is credible and reliable country information relating to the economic situation of Fiji, and whether the state (the government) is able to protect its citizens from serious harm.
Economic situation in Fiji
Fiji 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.[25]
[25]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 11 April 2024.
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).[26]
[26]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 11 April 2024.
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. [27]
[27]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 11 April 2024.
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.[28]
[28]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 11 April 2024.
In respect to the applicant’s claims relating to the economic situation within Fiji, although he said that life will be hard, the economy was very bad, and the living costs are high while his wage remained the same. This in some way contradicts what he said in his application about his employment in Fiji. He does not indicate anywhere in his application that he was employed in Fiji, and therefore the Tribunal is concerned about the veracity of his claim and finds that in the absence of any supporting evidence, no weight should be attributed to what he claims about him experiencing economic hardship. Further to this, he does not claim that because of the economic situation he experienced in Fiji that he has been denied basic services where the denial of any services threatened his capacity to subsist or to earn a livelihood.
It has already been identified in these Reasons, the Tribunal is in possession of certain information that shows that the applicant’s claims as they are displayed within his application are identical those claims made in another person’s application, and that other person is also from Fiji. When invited in the section 424A invitation to respond to or comment on that information, the applicant did not respond or comment.
Therefore, when an individual and cumulative assessment is undertaken of those features just identified so far as the country information and the other information available to the Tribunal, the Tribunal is satisfied that greater weight should be placed upon the credible and reliable information about Fiji’s economy as opposed to the uncorroborated claims made by the applicant.
State protection
The applicant claims about rampant crime rate within Fiji, although he does not claims that he was specifically targeted or was a victim of crime which was systematic or otherwise. The available and reliable country information about state protection in Fiji suggests a contrary view to those claims expressed by the applicant.
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[29] and is considered to be a generally professional law enforcement organisation, albeit under-resourced.[30]
[29]The DFAT Country Information Report, Fiji, 27 September 2017, page 27, paragraph 5.8.
[30]Fiji 2018 Crime & Safety Report', Overseas Security Advisory Council (OSAC), 26 June 2018, p.[8]
The Fiji Police Force (FPF) is a national police force that covers the whole country. The US Department of State Overseas Security Advisory Service 2020 Crime and Safety Report assesses Fiji police as ‘professional’ and notes recent improvements in training and accountability. It notes that police may not be based in vehicles and may not arrive in time to disrupt crimes in progress but assesses that ‘victims of crime can expect fair treatment with dignity’. Police are generally well-resourced by the Government and receive funding and training from overseas aid partners. The police are, in general, disciplined (but see comments on violence below). Policing is conducted on a community policing model and police are generally actively engaged with the communities they serve. Policing in outer islands and more remote places is more difficult because of the greater influence that the chief-based hierarchy has in the outer regions. Police are generally not deployed to their home communities to avoid conflict with traditional hierarchies. The Fiji Police Force overall has the capacity to protect individuals from societal harassment, discrimination, and violence, and police are usually effective in carrying out their role in day-to-day crime detection, investigation and prevention.[31]
[31]The DFAT Country Information Report, Fiji, 20 May 201 2022, pages 22 to 23, paragraphs 5.6 to 5.10.
When an assessment is undertaken of the country information and then weighed against those claims made by the applicant about the Fiji government and police not being able to protect its citizens, so far as the country information available to the Tribunal is concerned, the Tribunal is satisfied that greater weight should be placed upon the credible and reliable information about Fiji’s ability to protect its citizens as opposed to the uncorroborated claims made by the applicant.
CONCLUSION AND REFUGEE FINDINGS
The very nature of a review hearing before the Tribunal is that the hearing is conducted from the beginning (anew) and the Tribunal is to review the material, information and evidence made available to it. The Tribunal is to consider all of that material, information and evidence afresh and make its own assessment and determination as to whether the applicant meets the criteria for the granting of a Protection visa. The Tribunal is not bound by technicalities, legal forms or rules of evidence; and must act according to substantial justice and the merits of the case.[32]
[32]Migration Act 1958 (Cth), s 420.
Although the very nature of a review hearing is inquisitorial, and the Tribunal can seek out evidence it requires in order to reach a determination, however it has no obligation to seek out evidence to support the applicant’s claims, even though the Tribunal is entitled to do so.[33]
[33]Migration Act 1958 (Cth), s 5AAA; ABT16 v Minister for Home Affairs [2019] FCA 836, [28].
The Tribunal is not required to make the applicant’s case for him. It is his responsibility to specify all particulars of his claims to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish his claims. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of his claims, or to establish or assist in establishing his claims.[34] Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant.[35]
[34]Migration Act 1958 (Cth), s 5AAA.
[35]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.
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 he claims that he will face 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.
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
The issue in this matter is whether there are substantial grounds for believing that, as a 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 he would suffer serious harm because of the economic circumstances of Fiji, and crimes committed within the community.
The applicant has been given the opportunity by both the Department and the Tribunal to provide all of the details of his protection claims. The application form that he completed informed him that he should provide all of his claims for protection and all documentation or other evidence to support his claims. On 14 November 2023, the Department sent a letter to the applicant acknowledging receiving his valid application. In that letter he was advised that he could provide additional information relating his claims, and he was advised how he could provide this to the Department. When he filed his review application with the Tribunal, the Tribunal wrote to his on 15 February 2024 and advised that if he wished to provide material or written arguments for the Tribunal to consider, then he should do so as soon as possible. He has provided no material, information or evidence to either the Department or the Tribunal.
In respect to the applicant’s claims, it is noted that the claims he relies upon relate specifically to his experiencing economic hardship, and being at risk of crimes such as ‘thefts and snatch cases’ should he return to Fiji. The Tribunal finds that economic hardship and any rampant crime rate within the community do not fall within the ambit of ‘persecution’ as defined in section 5J(1)(a) of the Act in that he has a well-founded fear that if he returns to Fiji he will be persecuted because of his race, religion, nationality, membership of a particular social group or political opinion.
After careful consideration of all the material available, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution as he does not fear that if he returns to Fiji he will be persecuted for any of those reasons prescribed in section 5J(1)(a) of the Act. Therefore the Tribunal is not satisfied that he is a refugee as defined in section 5H(1) of the Act and accordingly, the Tribunal finds that he is not a person in respect of whom Australia has protection obligations as provided for in section 36(2)(a) of the Act.
COMPLEMENTARY PROTECTION CONSIDERATIONS
Having already concluded that the applicant does not meet the refugee criterion as provided by the Act,[36] the Tribunal has considered the alternative criterion.[37] In considering the alternative criterion, an assessment was undertaken as to 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.[38]
[36]Migration Act 1958 (Cth), s 36(2)(a).
[37]Migration Act 1958 (Cth), s 36(2)(aa).
[38]Migration Act 1958 (Cth), s 36(2A).
Significant harm is defined within section 36(2A) of the Act that a person will be arbitrarily deprived of his or his life; the death penalty will be carried out on that person; the person will be subjected to torture; the person will be subjected to cruel or inhuman treatment or punishment; or the person will be subjected to degrading treatment or punishment.
Section 36(2)(aa) of the Act provides that the relevant risk threshold in assessing complementary protection is that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia, there is a real risk that he will suffer significant harm if returned to Fiji. The Courts have adopted the principle that the test for ‘real risk’ imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[39]
[39]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
Real chance was also discussed in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and the High Court said the expression ‘a real chance’ clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring.[40] The question of ‘real chance’ is the test to be applied on an application for a protection visa under the Act when considering whether the applicant has a well-founded fear that they will face persecution for a Convention reason if returned to their country of nationality.[41] A person’s fear of persecution must be well-founded on the basis that there is a real chance that they will be persecuted if they return to their country of nationality. A real chance is one that is not remote, regardless of whether it is less or more than fifty per cent.[42]
[40]Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 citing Boughey v The Queen (1986) 161 CLR 10, 21.
[41]Migration Act 1958 (Cth), s 36(2)(a); Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 citing Regina v Home Secretary; Ex parte Sivakumaran (1988) AC 958.
[42]Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.
When carefully assessing the claims made by the applicant, the Tribunal is not satisfied the harm the applicant fears could constitute either of the forms of significant harm as defined in section 36(2A) of the Act. It is clear from the evidence in this matter that he has not claimed that he will be arbitrarily deprived of his life, or that the death penalty will be carried out on him or that he will be subjected to torture. Further to this, there is no information or evidence made available to the Tribunal to indicate that he would suffer any of these forms of ‘significant harm’ as defined in section 36(2A) of the Act if he returned to Fiji such as being subjected to torture; or cruel or inhuman treatment or punishment; or degrading treatment or punishment.
The real risk he claims which would cause him to suffer significant harm is one of economic hardship and being exposed to or being at risk of being a victim of a crime. The Tribunal is satisfied (and so finds) that these claims are something which is faced by the population of Fiji generally and is not specifically targeted towards the applicant and not specifically faced by the applicant personally.[43]
[43]Migration Act 1958 (Cth), s 36(2B)(c).
Having considered all of the applicant’s claims, individually and cumulatively, along with the evidence, the Tribunal does not accept that if he returns to Fiji now or in the reasonably foreseeable future he will be arbitrarily deprived of life, the death penalty will be carried out on him, or he will be subjected to torture or to cruel or inhuman treatment or punishment, and nor will he be subjected to degrading treatment or punishment.
CONCLUSION: REFUGEE CRITERION
Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds that there is not a real chance he will be persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group in Fiji. The Tribunal finds that his fear of persecution is not well-founded as required by section 5J of the Act and, therefore, he is not a refugee within the meaning of section 5H of the Act.
CONCLUSION: COMPLEMENTARY PROTECTION CRITERION
Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Fiji, he will be exposed to a real risk of suffering significant harm.
OVERALL CONCLUSION
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.
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). The Tribunal is not satisfied that he is a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies section 36(2) based on being a member of the same family unit as a person who satisfies section 36(2)(a) or section 36(2)(aa) of the Act and who holds a protection visa. Accordingly, he does not satisfy the criteria in section 36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Wayne Pennell
Senior MemberATTACHMENT - 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.
…
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.
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