2402501 (Refugee)

2402501 (Refugee) [2024] AATA 3905 (4 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBERS:  2402501
2404865
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Gregory Hanson
DATE:4 June 2024
PLACE OF DECISION:  Melbourne
DECISION 2402501:  In respect of Tribunal file reference 2402501, the Tribunal affirms the decision not to grant the applicant a protection visa.
DECISION 2404865:  In respect of Tribunal file reference 2404865, the Tribunal does not have jurisdiction in this matter.

Statement made on 04 June 2024 at 2:25pm
CATCHWORDS
REFUGEE – Protection Visa – Fiji – political opinion – supporter of Bainimarama and the Fiji First Party – to fear harm in the form of witchcraft – race – iTaukei ethnicity – religion – Assemblies of God (AOG) church – fears harm from people in his home village – harm would not, individually or cumulatively, amount to serious harm in his particular circumstances – not satisfied the applicant has a real chance of suffering serious or significant harm in Fiji – no jurisdiction in relation to second application – 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
APPLICATION FOR REVIEW

This decision record concerns two applications for review a decision by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Republic of Fiji (Fiji), applied for the visa on 30 November 2023. The delegate refused to grant the visa on the basis that, firstly, the applicant did not meet the refugee criteria in s 36(2)(a) of the Act because the delegate was not satisfied that there was not a real chance that the applicant would suffer persecution in Fiji. Secondly, the delegate found the applicant did not meet the complementary protection criteria in s 36(2)(aa) because there was not a real risk of the applicant facing significant harm in Fiji.
On 15 February 2024, lodged an application (First Review Application) with the Tribunal for merits review of the delegate’s decision. This review application was allocated file reference 2402501 by the Tribunal.
On 13 March 2024 the applicant lodged a second review application (Second Review Application) with the Tribunal for merits review of the same delegate’s decision dated 14 February 2024 to refuse to grant him a protection visa. This review application was allocated file reference 2404865 by the Tribunal.
The applicant was not represented in relation to the review.
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.
CLAIMS AND EVIDENCE
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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Before the Department
The information provided to the Department in support of his claims to engage Australia’s protection obligations was limited to that contained in his protection visa application form lodged online with the Department on 30 November 2023. That online protection visa application form records that the applicant did not receive any assistance in completing the form, and that he could speak, read and write English. In that form, it is recorded that the applicant claimed as follows:
a.In relation to why he left Fiji, his claims included as follows:
i.He was a staunch supporter of Bainimarama and the FijiFirst Party in the lead up to Fiji’s first General Elections in 2014.
ii.Most native Fijians are nationalists upholding the Chiefly system and the Great Council of Chiefs and they have the idea that Fiji should be controlled by native Fijians.
iii.He loves Bainimarama because as a Christian, he (the applicant) believes in equality and that all Fijians are on a level playing field. This led to friction, verbal abuse, threats and even the stoning of his family’s home in his village, because of his political stance and voice.
iv.Even though the Bainimarama Government led Fiji for the last 16 years, those anti-Bainimarama Fijians still seek revenge on those who support his government.
b.In relation to whether he experienced harm in Fiji, his claims included:
i.He and his family suffered from verbal abuse, threats of death and even the stoning of their family house in his village at [Village 1] in [a town].
ii.Anywhere you move to will have the same because the same tension exists everywhere.
iii.The Methodist Church was in full support of the Rabuka 1987 coup and nearly all native Fijians are Methodists. So, Fijians who know that you are a Bainimarama supporter will gang up and try and harm or threaten you to give up your support for Bainimarama. Living in this kind of atmosphere and environment brings out constant fear and mentally affects a person.
c.Regarding whether he sought help in respect of the harm he suffered, he claimed:
i.Yes - the police were notified but when they arrived, the culprits had disappeared. They assure protection but fact is, they are not present when we need them.
d.When asked whether he moved or tried to move to another area of the country to seek safety, he stated as follows:
i.There is no point in moving as your enemies are everywhere. The same will happen when he speaks out or promotes the Bainimarama Government. Fiji is a small place and the majority native Fijians are Methodists with a nationalistic mindset. Wherever you run to and hide in Fiji, once they know that you are an enemy politically; your nightmare continues.
e.In respect of what he thought would happen if he returned to Fiji, his claimed as follows:
i.Right now, Bainimarama has lost the 2022 General Elections and the Rabuka Government has taken over. The native Fijians and the Methodist Church are all rejoicing, and they are bringing back the Great Council of Chiefs. The Rabuka Government are making moves to put Bainimarama out of Parliament and into prison for the 2006 Clean Up Campaign. This move will slowly flow and affect all those who are Bainimarama supporters and it is best to stay in Australia, enjoy the freedom and peace of mind.
f.In response to whether he would be harmed or mistreated on return to Fiji, he stated:
i.As mentioned above, the Rabuka Government is doing its own clean-up campaign, starting with Bainimarama the ex-PM, all the ministers and supporters. They want him to be put in prison for ousting the Qarase Government in 2006 in his Clean Up Campaign. This retaliation will trickle down to Bainimarama supporters and that is why; it is best to remain in Australia, until everything cools down.
g.Regarding whether he thought the authorities of Fiji would protect him if he returned, he responded:
i.Yes, the police will protect but as mentioned before, they are not there by your side 24 hours a day. As mentioned, the majority of native Fijians are nationalists and support the Rabuka manifesto. They are also present in the authorities who are supposed to protect you. It is best not to take the risk. Staying in Australia is the best option.
The applicant was not invited to attend an interview with the delegate and no additional material was otherwise provided by the applicant in support of his claims prior to the primary decision being made on 14 February 2024.
Before the Tribunal
On 15 February 2024, the applicant lodged the First Review Application. Attached to that review application was a copy of the Department’s correspondence dated 14 February 2024 notifying him of the refusal of his application for a protection visa. As above, the First Review Application was allocated file reference 2402501 by the Tribunal.
By correspondence dated 21 February 2024 in respect of the First Review Application, the Tribunal wrote to the applicant to advise that it had received his review application lodged on 15 February 2024 and allocated it file reference 2402501. The Tribunal advised that the validity of that review application had not been assessed.
On 6 March 2024, in respect of the First Review Application, the Tribunal sent email correspondence to the applicant inviting them to complete a ‘Pre-hearing information form’ seeking further information about, among things, their protection claims, and requesting he respond within 7 days. On 9 March 2024, the Tribunal received email correspondence from the applicant as follows:
a.He would like an in-person hearing and requires an in interpreter in the Fijian and English languages.
b.He does not have legal representation or assistance, and this case is very important to him.
c.He is currently trying to get legal assistance so I he may need to provide more information later. He would be grateful if the Tribunal could allow time for him to find assistance and prepare his case.
d.He requests that no hearing be scheduled before September 2024.
On 12 March 2024, in respect of the First Review Application, the Tribunal responded to the applicant’s correspondence of 9 March 2024 advising that the Tribunal had considered his request not to list a hearing prior to September 2024 for the reasons he stated, including so that he could access legal assistance. The Tribunal advised that it did not consider it reasonable to adjourn the matter until that time in the circumstances. The Tribunal advised that it had not yet listed a hearing but it may do so soon, and that it may list a hearing in late May 2024. The Tribunal advised that if he wished to make a further request for a hearing adjournment at that time, he may do so. And if he had documentary evidence demonstrating his need for a longer time period before a hearing he may wish to submit that with his further request, if you chose to make one. Attached to the Tribunal’s correspondence was a list of contact details for accredited specialists in immigration law prepared by the Law Institute of Victoria.
On 13 March 2024 the applicant lodged the Second Review Application. Attached to that review application were copies of the Department’s correspondence dated 14 February 2024 notifying him of the refusal of his application for a protection visa and a copy of the delegate’s protection visa decision record of the same date. As above, the Second Review Application was allocated file reference 2404865 by the Tribunal.
On 14 March 2024, referring to the Second Review Application, the applicant provided to the Tribunal written submissions dated 12 March 2024 that sought to respond to the reasons of the delegate detailed in the delegate’s protection visa decision record and make legal arguments in support of his claims to meet the refugee criterion in s 36(2)(a) of the Act. Those submissions included the following:
[…]
Please consider the time frame or the actual nightmare I went through. I am talking about events that I went through during the build up to the 2014 and 2018 Fiji General Elections. What happened was not expected. You will have to be a Fijian to understand the attempted gang attacks, verbal abuse, the house stoning and threats. All the iTaukei nationalist Fijians don’t like you, because you support Bainimarama. After the Election, the heat dies down and we all have the Fijian smile, until the next General Election. How can we keep records of what happened to me during that period of time?
[…]
The country information may look true when looking from the outside. Some people go through hell during the General Election build up because of being the odd one out and promoting and voting the Leader they hate.
[…]
On 15 March 2024, the Tribunal attempted several times to contact the applicant using the telephone number provided to the Tribunal for the purposes of his review applications. On each occasion there was no answer and the Tribunal left a voicemail message requesting he contact the Tribunal by telephone to discuss the proposed hearing date.
By correspondence dated 16 March 2024 in respect of the Second Review Application, the Tribunal wrote to the applicant to advise that it had received his review application lodged on 13 March 2024 and allocated it file reference 2404865. The Tribunal advised that the validity of that review application had not been assessed.
By correspondence dated 18 March 2024 in respect of the First Review Application, the Tribunal advised the applicant that it was unable to make a favourable decision on the material before it and invited him to attend a hearing on 30 May 2024 at the Melbourne Registry. That correspondence enclosed a ‘Response to Hearing Invitation form’ for him to complete and return to the Tribunal.
By correspondence dated 19 March 2024 referring to the Second Review Application, the Tribunal wrote to the applicant to advise that it may appear that the Second Review Application was lodged outside the 28-day period prescribed in the Regulations for applying for review of a decision by a delegate to refuse to grant a protection visa, and on this basis the Tribunal may not have jurisdiction to consider the Second Review Application. The Tribunal advised that if he wished to make any comments on whether a valid review application had been made in this regard, he could do so by 2 April 2024. By correspondence dated 2 April 2024, the applicant responded to this letter advising that he recalls that he had lodged his review application on 13 March 2024, and that was 6 days after he received his refusal notice.
By further correspondence dated 2 April 2024 referring to the Second Review Application, the applicant advised that he had received the Tribunal’s correspondence dated 18 March 2024 inviting him to appear at a hearing on 30 May 2024, and further:
a.He does not have legal representation or assistance, and this case is very important to him.
b.He would like an in-person hearing and he requires a Fijian interpreter at the hearing.
c.He is currently trying to get legal assistance so he may need to provide more information later. He would be grateful if the Tribunal would allow more time for him to find assistance and prepare his case.
d.He humbly asks that no hearing be scheduled before July 2024.
By correspondence dated 22 April 2024 referring to the First Review Application, the Tribunal wrote to the applicant regarding the hearing listing and further clarifying the existence of two review applications before the Tribunal. By separate correspondence dated 22 April 2024 referring to the Second Review Application, the Tribunal sent to the applicant correspondence containing identical content to that sent to the applicant earlier that same day. No response was received from the applicant in respect of either of the Tribunal’s letters of this date. On 22 April 2024, the Tribunal attempted several times to contact the applicant using the telephone number provided to the Tribunal for the purposes of his review applications. However, each time the Tribunal received a message the number was disconnected, and as such it was unable to leave voicemail messages.
On 31 May 2024, the applicant appeared before the Tribunal with the assistance of an interpreter in the Fijian and English languages to give evidence and present arguments relating to the issues arising in relation to the decision under review.
At the commencement of the hearing the Tribunal discussed the applicant’s second request for a further hearing adjournment dated 2 April 2024. The applicant advised the Tribunal that he no longer wished to seek an adjournment and confirmed that he wished for the hearing to proceed on that day. During the hearing the Tribunal also discussed with the applicant the issue of the Tribunal’s jurisdiction in respect of the Second Review Application. The Tribunal explained that in the event the Tribunal exercised its jurisdiction to review the delegate’s decision in respect of the First Review Application, the Tribunal would have no jurisdiction to undertake a second review of the delegate’s decision for reason of the Tribunal already having exercised its jurisdiction once to review the delegate decision, and that the law provided that the Tribunal was unable to do so again. The Tribunal sought the applicant’s comments and he confirmed he understood and agreed that the Tribunal would not have jurisdiction to review the delegate’s decision again in those circumstances.
Before the Tribunal the applicant gave evidence that his reading and writing English language skills were not very good and that he was assisted by a migration agent located in Fiji to prepare and lodge his protection visa online on 30 November 2023. The applicant confirmed that he had copy of what was lodged with the Department and that he had since reviewed the contents of what was provided to the Department on his behalf. The applicant confirmed that there were no changes that he wanted to make and all of the information was true and correct to the best of his understanding.

At the hearing the applicant gave evidence as follows in relation to his family and general background:
a.He was born in a hospital in [a] Province, Fiji.
b.From birth until he travelled to Australia he resided in [Village 1] village, [Province 1] Province, other than for a period of around 4 years when he was working on a [project].
c.His parents, 2 sisters and one brother continue to reside in [Village 1] village, [Province 1] Province. His parents are subsistence farmers while two of his siblings are still at school and one is working. He has no family in Australia.
d.He is married and has three children with his wife. They reside with his parents in [Village 1] village.
e.He communicates with his family members in Fiji using [social media].
f.He provides financial support to his family members in Fiji.
g.He is of iTaukei ethnicity (indigenous Fijian).
In relation to the reason why he left Fiji to come to Australia in February 2023, the applicant stated he had been working in [on a project] and supporting his family financially but on the money he was earning they were still struggling to make ends meet due to the high cost of living. He stated that he applied to a labour hire company to work in Australia to provide more financial support to his family. Three others from his village did the same and they are also still in Australia.
Regarding matters related to his political opinion, the applicant gave evidence as follows:
a.He supports FijiFirst.
b.He has never been a formal member of the FijiFirst Party.
c.He has never attended political rallies or events other than when FijiFirst attended his village to promote farming and provide free farming resources including livestock and fencing materials.
d.He and his family received free livestock and fencing materials from FijiFirst as did other people in his village. They did not have to do anything in return for receiving these items.
e.Around 30 people in his village support FijiFirst but more support Rabuka.
In relation to why he fears returning to Fiji, the applicant’s evidence was as follows:
a.He fears that something might happen to his family now that Rabuka is in power.
b.Previously, during the election campaigns in 2014 and 2016 his family’s home was stoned and their livestock stolen because his family was known to support FijiFirst. This happened because his family was seen to be getting a lot of support from FijiFirst. None of his family members were ever harmed on this basis.
c.In the lead up to the 2022 election his family was told by the village elders and the village headman they had to move out of the village because they were supporters of FijiFirst. His family reported this to the police but nothing came of it.
d.His family eventually moved to nearby vacant land outside of the village where his family are now building a house. He was there when they moved and the money he is earning in Australia is being used to finance the construction of that house. His family have permission to remain living on that land.
e.Other families were also asked to leave the village and they have also moved to nearby vacant land outside the village.
f.His family home in the village is now vacant. It is located on leased land. His family had been living on that land for around 17 years.
g.His family and the other families that were asked to leave the village because of their support for FijiFirst, do not want to return to the village as they fear they would be harmed by the village headman and his supporters if they did.
h.The village headman’s supporters have previously verbally abused and swore at him. Since the December 2022 election, he has heard that people are still walking past and verbally abusing and swearing at his family members.
i.His family have not sought to take legal action to allow them to return to their home in the village.
j.He would not have any reason to want to try to reclaim his family’s property in the village because he and his family are happy to remain living where they are now outside of the village.
k.The relatives of the village headman and other people in Fiji would want to harm him if he returned to Fiji because he supports FijiFirst, and also because he managed to come to Australia.
In response to his claimed fear of harm on return to Fiji for reason of him having come to Australia, the applicant added as follows:
a.The village headman and his supporters would want to harm him because they see him as someone who has been working in Australia to earn money and helping his family financially including to finance the construction of their new home.
b.These people have previously abused him on social media.
c.They can approach him where he is living in Fiji and maybe assault him.
d.He could report this to the police and the police will perhaps find time to solve this problem.
The applicant gave evidence that there are no other reasons why he fears harm on return to Fiji.
In relation to matters relating to religion, the applicant gave evidence as follows:
a.He belongs to the Assemblies of God (AOG) church. He has always been a member of this church.
b.All his family members belong to the AOG church but most people in his village are members of the Methodist church.
c.FijiFirst supporters comprise of a mix of members of the AOG and Methodist churches.
d.He has never had any problems in Fiji for reason of his religion.
e.He does not have any fears of being harmed on return to Fiji for reasons related to religion.
No further information was provided by the applicant to the Tribunal in support of his protection claims.
Country information
Political history
On independence in 1970, after nearly a century as a British colony, Fiji adopted a constitutional democratic form of government based on the Westminster system. [1] DFAT reports that a Labour-National Federation Party (NFP) coalition government was elected in 1987 with strong backing from both indigenous Fijian (iTaukei) and Indo-Fijian trade unionists.[2] But widespread protests among iTaukei arose and the Government was removed in a coup d'état within weeks.[3] The Governor-General established an interim civil government that again only lasted weeks before another coup d'état led to the dismissal of the Governor-General and the declaration of a Republic.[4]
[1] Department of Foreign Affairs and Trade, Fiji country brief, available at:
[2] Department of Foreign Affairs and Trade, DFAT Country Information Report – Fiji, 20 May 2022 (DFAT 2022 Report), at [2.2].
[3] Ibid.
[4] Ibid.
Mahendra Chaudry was elected as the country's first Indo-Fijian Prime Minister in 1999. Ethno-nationalist businessman, George Speight, led another coup d'état in 2000 in which Chaudry and his government were held hostage for 56 days and Indo-Fijian businesses were burned down and looted.[5]
[5] DFAT 2022 Report, at [2.3].
In 2006, Josaia Voreqe (Frank) Bainimarama launched a fourth coup d'état in 2006, becoming interim Prime Minister in 2007.[6] The Bainimarama government later sponsored and enacted in law the Constitution of the Republic of Fiji 2013 (the 2013 Constitution) that abolished race-based voter rolls and race-based quotas on parliamentary seats, and also abolished the entire (unelected) upper house of the Parliament and the iTaukei Fijian Council of Chiefs.[7] Bainimarama's FijiFirst party went on to win the 2014 and 2018 elections, and both elections were judged to be credible by the Multinational Observer Group led by Australia.[8]
[6] DFAT 2022 Report, at [2.4].
[7] Ibid.
[8] Ibid.
Following the December 2022 Fijian general election, no political party won a clear majority of seats in Parliament to form Government.[9] After ten days of inter-party negotiations, a coalition of three parties (The People’s Alliance, National Federation Party and Social Democratic Liberal Party), led by Prime Minister Sitiveni Rabuka, formed government.[10] Since the formation of the new government, there has been no significant political unrest or deterioration of government functions.[11]
Political opinion
[9] Department of Foreign Affairs and Trade, Fiji 20230621135833 - Country Information - Political Update, 02 August 2023, 20230803112036.
[10] Ibid.
[11] Ibid.
The 2013 Constitution allows for freedom of speech, expression and publication, assembly and association.[12] However, DFAT reports that each of these rights is subject to broad caveats and can be limited by laws relating to national security, public safety, public order, public morality public health and the orderly conduct of elections.[13] In particular, authorities use wide and vague provisions in the Public Order Act 1969 (POA) to restrict freedom of expression and association[14], including permitting authorities to use whatever force necessary to prohibit or disperse public and private meetings to preserve order.[15] In this regard DFAT assessed in 2022 that that protestors may be prevented by the state from protesting lawfully, and that laws, including those under the POA, can be used against protestors, which can lead to prison sentences.[16]
[12] DFAT 2022 Report, at [3.25].
[13] Ibid.
[14] 'Country Reports on Human Rights Practices for 2022 - Fiji', US Department of State, 20 March 2023, p.4, 20230322095436.
[15] 'Country Reports on Human Rights Practices for 2022 - Fiji', US Department of State, 20 March 2023, p.10, 20230322095436.
[16] DFAT 2022 Report, at [3.27].
In respect of the circumstances prior to the December 2022 Fijian general election and the subsequent formation of a new government, DFAT reported in May 2022 that people participating in public protests face a low risk of official discrimination (noting that such discrimination is not impossible), and a moderate risk of violence in the form of police brutality.[17] DFAT further reported that public protests were relatively uncommon in Fiji[18], and permits are required to hold protests and these were sometimes denied.[19] United States Department of State (USDOS) noted that under the previous government, public opposition to government policy or proposals ‘could provoke a sharp response.’222
[17] DFAT 2022 Report, at [3.27].
[18] DFAT 2022 Report, at ['DFAT Country Information Report Fiji', Department of Foreign Affairs and Trade, 20 May 2022, p.14, 20220520095336.
[19] Ibid.
In respect of social media users who criticise the Government, in May 2022, DFAT assessed they faced a low risk of official discrimination and if there are consequences for online speech, these are more likely to be in the form of questioning or short-term arrest and detention rather than long-term incarceration. Some of DFAT’s sources at that time reported that the political environment promoted self-censorship.[20] DFAT assessed the risk at that time to be much higher for high-profile individuals, while a person of low profile posting anonymously was unlikely to attract official attention.[21]
[20] Ibid.
[21] DFAT 2022 Report, at [3.30].
DFAT previously reported while the Bainimarama government was in power that high-profile public figures, including the leaders of organisations seen to challenge the government’s authority or undermine its legitimacy, were at risk of negative attention, including arrest or detention.[22] During 2022, repressive laws and defamation suits were used to silence political opponents and government critics.[23] Credible sources reported that under the Bainimarama government, opposition figures were targeted by corruption charges they claim were politically motivated.[24] For example, in March 2021 political activist Ben Padarath was arrested and charged with sedition for publishing a social media post critical of a Fiji Independent Commission against Corruption (FICAC) investigation.[25]
[22] ‘DFAT Country Information Report Fiji’, Department of Foreign Affairs and Trade, 27 September 2017, p.16, CISEDB50AD5787.
[23] 'Amnesty International Report 2022/23: The state of the world’s human rights', Amnesty International, 27 March 2023, p.164, 20230328142801.
[24] 'Freedom in the World 2023 - Fiji', Freedom House, 31 August 2023, 20230831112859.
[25] ‘Freedom in the World 2022 - Fiji’, Freedom House, 20220928104557.
Under the former Bainimarama government, DFAT assessed that opposition political parties and their members faced a low risk of official violence although discrimination in the form of questioning or restricting activities was possible.[26]
December 2022 election and the current political environment
[26] DFAT 2022 Report, at [3.39].
DFAT reported in August 2023 that that there had been no notable political unrest or deterioration of government functions since the December 2022 when Prime Minister Voreqe (Frank) Bainimarama’s FijiFirst Party failed to win a majority, ending his 16 years in power, and the new Prime Minister, Sitiveni Rabuka of the People's Alliance formed a three party coalition majority government.[27] Despite some irregularities, international observers assessed the 2022 electoral process as being free and fair overall.[28]
[27] 'Fiji 20230621135833 - Country Information - Political Update', Department of Foreign Affairs and Trade, 02 August 2023, 20230803112036
[28] Freedom House, Freedom in the World 2023 - Fiji, Freedom House, 31 August 2023, 20230831112859; United States Department of State, Country Reports on Human Rights Practices for 2022 - Fiji, 20 March 2023, p.11, 20230322095436.
Country information indicates that the transition of power from the FijiFirst Party to the People's Alliance has been peaceful[29], and it is reported that the head of Fiji’s military, Commander Major General Ro Jone Kalouniwai, refused to support calls from the (now former) Police Commissioner Sitiveni Qihilo to send troops into the streets after the election result was announced.[30] The Australian Strategic Policy Institute reported that in mid-January 2023, Commander Kalouniwai issued a statement that the government was going too far too fast.[31] And that Commander Kalouniwai was rebuked and has since publicly expressed support for the new government.[32] Media outlets reported that in June 2023 an unsourced document was circulated on social media calling for a military takeover.[33] FijiFirst denied responsibility for the document[34] and Commander Major General Kalouniwai dismissed rumours the military would intervene to overthrow the government.[35] In July 2023, Commander Kalouniwai reiterated that a coup would not occur.[36]
[29] ‘Can Fiji keep its democracy in 2023?’, East Asia Forum, 3 February 2023, 20230712114936; ‘The number behind Fiji’s coup culture’, Australian Strategic Policy Institute, 1 February 2023, 20230712115112.
[30] ‘Can Fiji keep its democracy in 2023?’, East Asia Forum, 3 February 2023, 20230712114936.
[31] ‘The number behind Fiji’s coup culture’, Australian Strategic Policy Institute, 1 February 2023,
[32] ‘The number behind Fiji’s coup culture’, Australian Strategic Policy Institute, 1 February 2023,
[33] ‘Police investigating a leaked unsourced seditious document’, Fiji Village, 29 June 2023, 20230630102852; ‘Fiji police investigating source of leaked document calling for military intervention’, Radio New Zealand, 29 June 2023, 20230630100726.
[34] ‘Police investigating a leaked unsourced seditious document’, Fiji Village, 29 June 2023, 20230630102852; ‘Fiji police investigating source of leaked document calling for military intervention’, Radio New Zealand, 29 June 2023, 20230630100726.
[35] ‘Fiji Military true to its role: Commander Kalouniwai’, Pacific News Service, 3 July 2023, 20230710143955.
[36] 'No coup says RFMF Commander', FBC News, 20 July 2023, 20230720090110.
Credible political commentators have characterised the current political climate in Fiji as one of a power struggle between the new prime minister and the former prime minister.[37] DFAT reports that the FijiFirst party wields a similar level of political influence and equivalent power to that of an Australian parliamentary opposition.[38] In February 2023, former Prime Minister Bainimarama was suspended from parliament until 2026 after giving a divisive speech in which he criticised Prime Minister Rabuka and called for the military to intervene.[39] In March 2023, he resigned from parliament (but remains leader of the FijiFirst Party).[40] The next day he was arrested and charged with abuse of office and accused of interfering with a police investigation into the activities of former staff at the University of the South Pacific.[41] Bainimarama pled not-guilty and was released on bail the following day.[42] In June 2023, the charge was changed to attempting to pervert the course of justice, and subsequently in October 2023, he was found not guilty.[43] In May 2023, the Office of the Director of Public Prosecution (ODPP) announced it was dropping separate charges against Bainimarama (and other individuals including Prime Minister Rabuka) of urging political violence and inciting communal antagonism, due to insufficient evidence.[44] According to local newspaper, Fiji Village, in February 2023 the ODPP received a docket against Bainimarama with a ‘suspected charge’ of sedition, which it was reviewing.[45] The Tribunal has been unable to find any other reports on the current status of this docket is.[46] In May 2023, all 24 politicians from the FijiFirst Party were suspended from parliament for 30 days after the party’s registration was suspended for breaching political party auditing requirements,[47] effectively leaving the parliament without an opposition party for several weeks.[48] Three smaller parties (none of whom are in parliament) were also suspended.[49] In June 2023, the suspension was lifted after FijiFirst submitted their account records[50], and following Bainimarama’s resignation, former defence minister, Inia Seruiratu, was appointed leader of the opposition, FijiFirst.
[37] History’s Shadow Looms Over Fiji', Diplomat, The, 02 February 2023, 20230605132913; 'Coups and rumours of coups in Fiji', Australian Strategic Policy Institute, 05 June 2023, 20230619094006; 'Former Fiji PM Bainimarama arrested, charged with abuse of office', World Socialist Web site (WSWS), 15 March 2023, 20230619094205.
[38] 'Fiji 20230621135833 - Country Information - Political Update', Department of Foreign Affairs and Trade, 02 August 2023, 20230803112036.
[39] ‘In Fiji, Bainimarama Suspended From Parliament Until 2026', Diplomat, The, 28 February 2023, 20230605132703; ‘Former Fiji prime minister Frank Bainimarama pleads not guilty to abuse of office’, The Guardian, 10 March 2023, 20230317103545.
[40] ‘Fiji's former prime minister Frank Bainimarama resigns from parliament, will not quit politics’, ABC News, 8 March 2023, 20230712115333.
[41] ‘Fiji's former attorney-general arrested and charged with abuse of office’, ABC News, 1 May 2023,
[42] ‘Former Fiji prime minister Frank Bainimarama pleads not guilty to abuse of office’, The Guardian, 10 March 2023, 20230317103545.
[43] ‘Former Fiji prime minister not guilty in abuse of power case’, Radio Free Asia, 12 October 2023,
[44] ‘Prosecutor drops cases against Fiji PM Rabuka and other political elites’, Radio New Zealand, 5 May 2023, 20230712142347; ‘DPPs Office assesses police dockets for suspected charges for Rabuka, Bainimarama, Sayed-Khaiyum, Qiliho, Ditoka and Saneem’, Fiji Village, 13 April 2023, 20230712142244.
[45] ‘DPPs Office assesses police dockets for suspected charges for Rabuka, Bainimarama, Sayed-Khaiyum, Qiliho, Ditoka and Saneem’, Fiji Village, 13 April 2023, 20230712142244.
[46] Sources consulted include the Department’s CISNET, UNHCR Refworld, The European Country of Origin Information Network (ECOI), United States Department of State, NGO and human rights organisations, local news sources and major international newspapers.
[47] 'Fiji suspends opposition MPs in 'testing' time for country's democracy', ABC News (Australia), 22 May 2023, 20230524141939; 'FijiFirst angry over suspension by Acting Registrar of Political Parties', Radio New Zealand (RNZ), 19 May 2023, 20230524140903; 'Coups and rumours of coups in Fiji', Australian Strategic Policy Institute, 05 June 2023, 20230619094006.
[48] 'Coups and rumours of coups in Fiji', Australian Strategic Policy Institute, 05 June 2023, 20230619094006.
[49] ‘FijiFirst angry over suspension by Acting Registrar of Political Parties', Radio New Zealand (RNZ), 19 May 2023, 20230524140903.
[50] ‘FijiFirst escapes deregistration risks’, FBC News, 9 June 2023, 20230712115911.

In early May 2024, Bainimarama was sentenced to a year in prison for perverting the course of justice.[51] Regardless of the ruling, Bainimarama would remain the leader of the FijiFirst party, said Aiyaz Sayed-Khaiyum, a former attorney general and the party’s former general secretary.[52]
Supporters of FijiFirst and Bainimarama
[51] 'Former Fiji PM Frank Bainimarama sentenced to year in jail', The Guardian, 09 May 2024, 20240513123043.
[52] Ibid.
In the lead up to the December 2022, Police Commissioner Brigadier General Sitiveni Qiliho reported there had been a number of acts of vandalism and intimidation targeting the FijiFirst Party, including damaging FijiFirst billboards, banners and campaign material on vehicles as well as verbal and physical intimidation of its supporters and hate posts on social media.[53] The Tribunal also notes media reports of vandalism and other criminal damage targeting FijiFirst supporters and members in 2014[54] and 2018[55].
[53] Fiji Village, Police concerned that a number of acts of vandalism and intimidation targeting FijiFirst has been reported - Qiliho, 20 November 2022; FBC News, Police seek to curb political thuggery, 21 November 2022.
[54] Fiji Sun, FijiFirst Supporter’s Car Hit, 11 September 2014.
[55] Fiji Sun, Uproar Over Attacks On Two FijiFirst Billboards. General Secretary Calls Them ‘Thuggery’, 4 October 2018.
In August 2023, DFAT advised that it was not aware of any credible reports that the new government has harassed or ill-treated any supporters of the former Bainimarama government.[56] Country information also confirms that the Rabuka government has suspended and is investigating several high profile public office holders who are perceived as having strong links to, or were appointed by, the former government. These include Fiji’s Police Commissioner Sitiveni Qiliho, the Commissioner of the Fiji Corrections Service Francis Kean and the Director of Public Prosecutions Christopher Pryde. [57] In October 2023 Qiliho was found not guilty of abuse of office.[58] A special tribunal will be established to conduct these investigations.[59] In May 2023, the former Attorney-General, Aiyaz Sayed-Khaiyum was arrested and charged with abuse of office. Sayed-Khaiyum is accused of misconduct after he agreed to pay the taxes of former elections supervisor Mohammed Saneem without the proper approval of Fiji’s Constitutional Offices Commission and the country’s President.[60] In February 2023, Mohammed Saneem was suspended pending an investigation into several allegations of misconduct during his time as the former elections supervisor.[61] On 11 December 2023 Sayed-Khaiyum resigned as the general secretary of the opposition FijiFirst party due to medical reasons.[62]
Land rights and property law
[56] Department of Foreign Affairs and Trade, Fiji 20230621135833 - Country Information - Political Update, 02 August 2023, at p4, 20230803112036.
[57] 'History’s Shadow Looms Over Fiji', Diplomat, The, 02 February 2023, 20230605132913; 'Fijian women's rights activists welcome suspension of police chief, prison boss', Australian Broadcasting Corporation (ABC): Pacific Beat, 30 January 2023, 20230619092514; 'Fiji's top prosecutor suspended for alleged misconduct', Radio New Zealand (RNZ), 14 April 2023, 20230417131125.
[58] ‘Former Fiji prime minister not guilty in abuse of power case’, Radio Free Asia, 12 October 2023,
[59] ‘Fiji's top prosecutor suspended for alleged misconduct’, Radio New Zealand, 14 April 2023, 20230712120201; ‘Fijian women's rights activists welcome suspension of police chief, prison boss’, ABC News, 30 January 2023, 20230619092514.
[60] ‘Former Fiji attorney-general released on bail after abuse of office charge’, Stuff New Zealand, 2 May 2023, 20230712120349.
[61] ‘Ex-elections boss being probed by Fiji anti-corruption agency’, Radio New Zealand, 3 February 2023, 20230210100635; ‘Fiji's election chief suspended following complaint’, Radio New Zealand, 3 February 2023, 20230127091320.
[62] ‘FijiFirst general secretary Aiyaz Sayed-Khaiyum resigns, launches criticism against government’, Radio New Zealand, 11 December 2023, 20231211104015.
DFAT reports that about 90 per cent of land is owned by traditional owners, with 6 per cent government-owned and 3 per cent freehold land.[63] iTaukei owners often lease land to others through a government-coordinated leasing system.[64] 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.[65] 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.[66]
[63] DFAT 2022 Report, at [2.25].
[64] Ibid.
[65] Ibid.
[66] Ibid.
DFAT also advises that both iTaukei and Indo-Fijians lease land from traditional owners but it cannot be bought or sold, only leased.[67] A tenant can be removed from land if it is not maintained or used for its intended purposes (for example, if an agricultural lease does not commence farming activity within a certain time), and this involves a breach of lease and a court process that can lead to eviction.[68]
[67] DFAT 2022 Report, at [2.26].
[68] Ibid.
DFAT reports that informal land use ('squatting') is common, and most squatting is done with the permission of the land owner; for example, extended family using the land without a formal lease agreement.[69] Informal land users have few legal rights and may be asked to leave at any time and internal migration from rural areas to cities has increased the number and size of informal settlements in recent years.[70]
[69] DFAT 2022 Report, at [2.27].
[70] Ibid.
FINDINGS AND REASONS
The Tribunal has regard to all material before it, including that referred to it by the Secretary pursuant to s 418(3) of the Act, all subsequent material provided by the applicant to the Tribunal, and relevant country information.
Receiving country
The applicant's evidence in relation to his nationality, place of birth, ethnicity, education, family composition, religion, has been consistent throughout his primary and merits review protection visa processes. The applicant has also been consistent in his evidence that he is a national of Fiji and of no other country, as are both of his parents. The applicant has demonstrated he speaks Fijian, the official national language of Fiji.[71]
[71] Mangubhai, Francis & Mugler, France (2010), The Language Situation in Fiji, Current Issues in Language Planning. 4. 367-459. 10.1080/14664200308668058.
The applicant provided to the Department for the purposes of his protection visa application, a copy of a passport purporting to have been issued to him on [date] 2022 by the Fijian authorities. The Tribunal notes that this identity document contains a photograph of a person bearing a true likeness to the applicant.
On the evidence before it, the Tribunal finds the applicant is national of Fiji and no other country, and that Fiji is his only receiving country for s 36(2) of the Act.
Home area
Judicial authority states that decision-makers must assess, on the material before her or him, the place or places to which an individual is likely to return, and that the first step of the decision-maker’s assessment is to make findings about, at least, one of those places.[72]
[72] CSO15 v Minister for Immigration and Border Protection (2018) 260 FCR 134 per Tracey, Mortimer and Moshinsky JJ at [45].
On the material before it the Tribunal finds in the applicant’s personal circumstances, if he were to return to Fiji, he would return to reside in the vicinity of [Village 1] village, [Province 1] Province, where he was raised and where his family continue to live, including his wife and children. The Tribunal finds there is no other location within the country where it is likely that he would reside now or in the reasonably foreseeable future.
Protection claims
The applicant was consistent in his evidence before the Department and the Tribunal that he fears harm from people in his home village for reason of his political opinion in support of former Prime Minister Bainimarama and his FijiFirst party. Before the Tribunal he also claimed to fear harm on return from members of his village, including the headman and his supporters, for reason of him having lived and worked in Australia and him financing his family’s new home.
Despite the claims made in his protection visa application, before the Tribunal the applicant gave evidence that he does not fear harm in Fiji for any reason related to religion. His evidence was that the harm that he fears does not relate to religion in any way. As above, his evidence at the hearing in this regard was: he is a member of the AOG church and always has been, and as are his family members; most people in his village are members of the Methodist church; FijiFirst supporters comprise of a mix of members of the AOG and Methodist churches; he has never had any problems in Fiji for reason of his religion; and he does not have any fears of being harmed on return to Fiji for reasons related to religion. Following his express disavowal of this claim, the Tribunal has not considered this further.
Refugee criterion
FijiFirst / Bainimarama
The Tribunal has had regard to the applicant’s evidence and the country information before it and accepts as credible the following account by the applicant:
a.He has never been a member of any political organisations, including FijiFirst, and has never attended any political rallies or election campaign events.
b.In 2014 and 2016[73], in the lead-up to previous general elections, residents of his village threw stones at his family home and their livestock was stolen because his family was known to support FijiFirst, including because his family had received support from representatives of FijiFirst, including livestock and fencing materials. None of his family members were ever harmed on these occasions.
c.Due to his family’s known support for FijiFirst and the assistance his family was receiving from the government on that basis, the village elders, including the village headman, asked his family to move out of the village. His family reported this to the police but nothing came of it.
d.In the lead-up to the 2022 general election, due to the threats they were receiving, the applicant’s family and most of the other 30 or so people in his village known to support FijiFirst, relocated to live on vacant land just outside the village. The money the applicant is earning in Australia is being used to finance the construction of his family’s new home on this land.
e.Prior to relocating to outside of the village his family had been living on their land in the village for around 17 years and they had done what was required to remain living on that land, including community work with the other villagers.
f.The new land that they moved to, and are building their new house on, is vacant land. They have permission to remain living on this new land. There is no reason for them to want to try to reclaim their previous property in the village as they are happy to remain living on their new land just outside of the village.
g.Even though his family have moved outside the village, people are still walking by and verbally abusing and swearing at them.
[73] The Tribunal notes that according to country information there was a general election in 2018 and not 2016, and accepts that the applicant may have been incorrect in his recollection and meant to refer to 2018, or possibly 2017: DFAT 2022 Report, at [2.4].
High Court authority provides that past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability high or low of their recurrence.[74] In this regard, the Tribunal accepts the applicant’s evidence as follows:
a.Neither he nor any of his family members have previously been physically harmed for reason of their actual and imputed support for FijiFirst and/or Bainimarama. The harm that he and members of his family have previously suffered on this basis has been limited to their house being stoned and livestock being stolen in the lead-up to general elections in 2014 and 2016 or 2018.
b.Neither he nor any of his family members want to return to live in the village where they resided previously as they are happy living where they are now outside of the village on their new land.
c.Despite his family’s relocation, people still verbally abuse and swear at them when they walk past.
[74] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574.
The Tribunal has had regard to country information, including that referred to above confirming that in the lead-up to previous general elections there have been reports of vandalism as well as verbal and physical intimidation targeting FijiFirst supporters. The Tribunal has also considered the applicant’s evidence that his family and other known FijiFirst supporter families have relocated to new land outside of the village after an extended period receiving threats pressuring them to do so by the village headman and his supporters, and since their relocation the harm they have suffered has been limited to verbal abuse.
The Tribunal has also had regard to the other country information referred to above regarding the December 2022 general election and that confirming Bainimarama’s FijiFirst Party failed to win a majority, and new Prime Minister, Sitiveni Rabuka of the People's Alliance, has secured a three-party coalition majority government. The Tribunal has also considered the material before it regarding the current and foreseeable risks for supporters of Bainimarama and his FijiFirst party. In this regard, other than the reports referred to above confirming vandalism and verbal and physical intimidation previously affecting FijiFirst supporters in the lead up to general elections, the Tribunal has not found reports of FijiFirst supporters being targeted or otherwise harmed in any other circumstances.[75] At the hearing when the Tribunal initially asked the applicant what his fears were for returning to Fiji, he stated that Rabuka’s party is now in power and he is concerned that something might happen to his family. The Tribunal is not satisfied on the country information before it that the applicant and his family face different kinds of harm or a greater risk of harm due to the change in government, or that he faces a risk of harm from the Rabuka led government or its agents for any reason.
[75] Sources consulted include CISNET, DFAT, US Department of State, NGO and human rights organisations, Google, ECOI.net and UNHCR Refworld.
Additionally, the Tribunal has considered material relevant to Fiji’s political history, including previous coups and other instances of civil unrest, and has had regard to this in considering the likelihood that the existing risk to the applicant in his particular circumstances may change in the reasonably foreseeable future. The Tribunal has also had regard to the prospect of Bainimarama and his FijiFirst party contending future elections and the possibility of Bainimarama and his FijiFirst party returning to government in the reasonably foreseeable future.
Section 5J(5) of the Act provides a non-exhaustive list of the type and level of harm that will amount to serious harm for s 5J(4). These provisions do not define ‘serious harm’ but provide instances of the serious harm referred to in s 5J(4)(b) by way of an aid to their application.[76] The Tribunal notes that, with the exception of s 5J(5)(a), each of the other paragraphs describe an instance of serious harm by reference to an adjectival or circumstantial qualification (‘significant’ or ‘threatens capacity to subsist’). Despite any such express qualification in paragraph (a), the High Court confirmed in WZAPN[77] that s 5J(5)(a) also requires a qualitative judgment, involving the assessment of matters of fact and degree.[78] The Tribunal has also had regard to the non-exhaustive nature of ss 5J(5), and what Professor James Hathaway explained, the Convention left the expression of "persecution" undefined because of the impossibility of enumerating in advance all of the forms of maltreatment that might legitimately entitle persons to benefit from international protection.[79]
[76] Minister for Immigration and Border Protection v WZAPN; WZARV v Minister for Immigration and Border Protection (2015) 254 CLR 610 at [48]. Although the Court was considering ss 91R(1)(b) and (2), its reasoning appears equally applicable to ss 5J(4)(b) and (5), given their similar wording.
[77] Minister for Immigration and Border Protection v WZAPN; WZARV v Minister for Immigration and Border Protection (2015) 254 CLR 610.
[78] Ibid, at [41], [51].
[79] James C Hathaway and Michelle Foster, The Law of Refugee Status (Cambridge University Press, 2nd edition, 2014) at p182.
The Tribunal accepts there is a more than remote risk in the reasonably foreseeable future that the applicant would be the recipient of verbal abuse from members of the village for reason of his and his and his family’s actual and imputed support for FijiFirst and/or Bainimarama. The Tribunal also accepts there is a more than remote risk that in the reasonably foreseeable future the applicant and his family’s property would again be affected by vandalism and theft in the lead-up to future general elections contested by FijiFirst and/or Bainimarama. However, the Tribunal finds on the material before it that this harm would not, individually or cumulatively, amount to serious harm in his particular circumstances for s 5J(4)(b) of the Act. The Tribunal further finds on the material before it that there is not a real chance, or alternatively a real risk[80], the applicant would experience any other harm in Fiji on this basis, now or in the reasonably foreseeable future.
[80] Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342]. Special leave to appeal from this judgment was refused: Minister for Immigration and Citizenship v SZQRB [2013] HCATrans 323.
As above, the Tribunal has accepted that due to his family’s known support for FijiFirst and the assistance his family previously received from the FijiFirst government, the village elders, including the village headman, pressured his family to move out of the village, and that his family did so prior to the applicant travelling to Australia. The Tribunal also accepts the applicant’s evidence that his family have permission to remain living on their new land, and that they are not motivated to want to try to reclaim their previous property in the village, including because they are happy to remain living on their new land. Following this, on the material before it, the Tribunal finds the applicant would not take steps to recover possession of his family’s previous residence in the village or seek to modify his behaviour in any way by choosing not to do so for reason of him fearing harm if he did so. The Tribunal finds that the applicant would not do so for the sole reason that he and his family are happy to continue to reside on their new land, and not due to a fear of being harmed if he did.
The Tribunal finds on totality of the material before it there is not a real chance the applicant would be persecuted in Fiji now or in the reasonably foreseeable future, for reason of his actual or imputed pollical opinion in support of FijiFirst and/or Bainimarama or for any reasons relating to this.
Returnee from Australia
When the Tribunal asked the applicant at the hearing what he feared might happen if he returned to Fiji he stated that Rabuka’s party is now in power and he is concerned that something might happen to his family. He then gave further evidence that his fears in this regard relate to his family’s actual and imputed support for FijiFirst and/or Bainimarama. Later in the hearing when the Tribunal sought confirmation again from the applicant what his fears were for returning to Fiji, he stated that he fears the people who would want to harm him because he supports FijiFirst, and because he has managed to come to Australia.

When further details were sought from the applicant regarding his fear of being harmed because he has been in Australia, his evidence included the following:
a.The people who he fears harm from in this regard are the supporters of the village headman and the village headman himself.
b.They would want to harm him on this basis because they have seen that he has found work and earned money in Australia and that he has been helping his family financially to build their new home.
c.These people have also abused him on social media.
d.He fears that they could approach him where he was living and maybe assault him.
e.Three other people from his village came to Australia at the same time as he did and on the same visa. They are also FijiFirst supporters. None of them have returned to Fiji.
f.He does not know of any other people in his village to have travelled to Australia and then returned.
g.He could go to the police to seek protection in respect of his harm, and if he did they will find time and space to try to solve this problem.
The Tribunal has been unable to locate any country information sources referring to reports that persons returning to Fiji have been harmed for reasons relating to those claimed by the applicant.[81] The Tribunal also notes that this claim was not previously raised in his protection visa application or in writing to the Tribunal prior to his hearing, despite many opportunities to do so. The Tribunal accepts that some people in his home area may be jealous of the money that he has earned in Australia, that he has been the recipient of some negative comments on social media for this reason, and when he returns to Fiji people in his home area may be aware of his work history in Australia. However, the Tribunal does not accept on the material before it there is a real risk that the applicant would be assaulted or suffer similar harm on this basis.
[81] Sources consulted include CISNET, DFAT, US Department of State, NGO and human rights organisations, Google, ECOI.net and UNHCR Refworld.
The Tribunal is not satisfied on the totality of the material before it there is a real chance, or alternatively a real risk[82], the applicant would suffer serious harm on this basis in Fiji now or in the reasonably foreseeable future.
Cumulative consideration
[82] Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342]. Special leave to appeal from this judgment was refused: Minister for Immigration and Citizenship v SZQRB [2013] HCATrans 323.
On the totality of the evidence before it, considering the applicant's claims individually and cumulatively, the Tribunal finds there is not a real chance that the applicant would be persecuted in Fiji now or in the reasonably foreseeable future.
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).
FijiFirst / Bainimarama
As above, the Tribunal finds there is a real risk, or alternatively a real chance[83], in the reasonably foreseeable future the applicant would be the recipient of verbal abuse from members of the village for reason of his and his family’s actual and imputed support for FijiFirst and/or Bainimarama, and that his family’s property would be again be affected by vandalism and theft in the lead-up to future general elections contested by FijiFirst and/or Bainimarama. However, the Tribunal has also found on the material before it that there is not a real risk the applicant would experience harm of any other kind on this basis in Fiji now or in the reasonably foreseeable future. As above, the Tribunal has also found the applicant would not take steps to recover possession of his family’s previous residence in the village or seek to modify his behaviour in any way by choosing not to undertake steps to do so due to him fearing harm if he did so.
[83] Ibid.
The Tribunal finds on the material before it that the harm that it accepts the applicant is at a real risk of experiencing on return to Fiji would not individually or cumulatively amount to significant harm in his personal circumstances. The Tribunal has made this assessment having regard to its exhaustive definition in s 36(2A) and the definitions of torture, cruel or inhuman treatment or punishment and degrading treatment or punishment in s 5(1).
Following this, the Tribunal finds on material before it there is not a real risk the applicant would experience significant harm for any reason related to his actual or imputed pollical opinion in support of FijiFirst and/or Bainimarama, as a necessary and foreseeable consequence of his removal to Fiji.
Returnee from Australia
As above, the Tribunal has been unable to locate country information referring to reports that persons returning to Fiji have been harmed for reasons including because they have worked and earned money overseas, including in a country such as Australia, and/or worked overseas to finance the building of property in Fiji.[84] Again, the Tribunal notes that this claim was not previously raised in his protection visa application or in writing to the Tribunal prior to his hearing, despite many opportunities to do so. As above, the Tribunal has accepted that some people in his home area may be jealous of the money that he has earned in Australia, that he has been the recipient of some negative comments on social media for this reason, and when he returns to Fiji people in his home area may be aware of his work history in Australia. However, the Tribunal does not accept on the material before it there is a real risk that the applicant would be assaulted or suffer similar harm on this basis.
[84] Sources consulted include CISNET, DFAT, US Department of State, NGO and human rights organisations, Google, ECOI.net and UNHCR Refworld.
On the totality of the material before the Tribunal, it is not satisfied that any adverse treatment or harm that the applicant may experience on return to Fiji on this basis would individually or cumulatively amount to significant harm in his personal circumstances. The Tribunal has made this assessment having regard to its exhaustive definition in s 36(2A) and the definitions of torture, cruel or inhuman treatment or punishment and degrading treatment or punishment in s 5(1).
Cumulative consideration
On the totality of the evidence before it, considering the applicant's claims individually and cumulatively, the Tribunal finds there is not a real risk that the applicant would experience significant harm as a necessary and foreseeable consequence of his removal to Fiji.
Concluding findings
The Tribunal finds there is not a real chance that the applicant would be persecuted in Fiji now or in the reasonably foreseeable future. Following this, the Tribunal finds for s 36(2)(a) of the Act that it is not satisfied that the applicant is a person in respect of whom Australia has protection obligations because they are a refugee.
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the complementary protection criterion in s 36(2)(aa). The Tribunal finds for s 36(2)(aa) that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Fiji, there is a real risk that the applicant will suffer significant harm.
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).
SECOND REVIEW APPLICATION
On 15 February 2024, the applicant lodged the First Review Application for merits review of the delegate’s decision dated 14 February 2024 to refuse to grant him a protection visa. This review application was allocated Tribunal file reference 2402501. On 13 March 2024 the applicant lodged the Second Review Application with the Tribunal for merits review of the same delegate’s decision. This review application was allocated Tribunal file reference 2404865.
As below, the Tribunal has made a decision in respect of the First Review Application, and doing so has affirmed the decision of the delegate not to grant the applicant a protection visa. Where the Tribunal has received a valid application for review of a reviewable decision and carried out its statutory duty to review the decision under the Act, the decision is no longer a reviewable decision.[85] The Tribunal has no jurisdiction to review a delegate’s decision twice.[86]
[85] SZBWJ v Minister for Immigration and Citizenship [2008] FMCA 164 at [41].
[86] Jayasinghe v Minister for Immigration and Ethnic Affairs (1997) 76 FCR 301; SZASP v Minister for Immigration and Citizenship [2007] FCA 771.
As the delegate’s decision has already been the subject of a valid review by the Tribunal, it is no longer a reviewable decision. Accordingly, the Tribunal finds in respect of the Second Review Application that it no longer has jurisdiction in relation to that decision.
DECISION
In respect of Tribunal file reference 2402501, the Tribunal affirms the decision not to grant the applicant a protection visa.
In respect of Tribunal file reference 2404865, the Tribunal does not have jurisdiction in this matter.
Gregory Hanson
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

20230712115112.

20230712115112

20230712115454; ‘Former Fiji prime minister Frank Bainimarama pleads not guilty to abuse of office’, The Guardian, 10 March 2023, 20230317103545.

20231130110736.

[2024] AATA 3905

4 June 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Jurisdiction

Judicial Review

Procedural Fairness

Statutory Construction