2403649 (Refugee)

2403649 (Refugee) [2024] AATA 4419 (25 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2403649

COUNTRY OF REFERENCE: Fiji
MEMBER:Hollie Kerwin
DATE:25 September 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.

Statement made on 25 September 2024 at 3:40pm
CATCHWORDS
REFUGEE – protection visa – Fiji – complementary protection – displaced settlers – disruption to farming – attack on home – physical assault – fear of killing – revenge attacks – state protection – reasonable internal relocation – climate impacts – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 423, 425, 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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 February 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who is a citizen of Fiji applied for the visa on 6 November 2023. The delegate refused to grant the visa on the basis that:
a.The applicant did not face a real chance of serious harm or persecution from the government or its agents, upon return to Fiji, as a result of their political opinion or freedom of speech, nor a real risk of significant harm for this reason.
b.The economic hardship the applicant claimed he would face did not amount to significant harm as defined under s 36(2A) of the Act, in circumstances where there was no information before the decision-maker to indicate that there will be a perpetrator of any harm to the applicant and no actual, subjective state of mind or intention to inflict the necessary pain or humiliation.
c.The claims made by the applicant regarding climate change did not engage the definition of refugee and would be considered under the complementary protection criteria. It is not clear to the Tribunal how the primary decision maker resolved the applicant’s claim regarding climate change under the complementary protection criteria.
The applicant appeared before the Tribunal on 12 August 2024 to give evidence and present arguments. A second hearing was held on 18 September 2024 to deal with a new issue which arose after the first hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.
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
Before the delegate
The applicant told the Tribunal at the first hearing that the matters raised in generic terms in his protection visa application are not true for him. He explained that what he ‘went through’, and narrated to the Tribunal, is the only basis on which he seeks protection. I accept this evidence. I do not deal with the claims made in the applicant’s protection visa application regarding:
a.Political opinion;
b.Fleeing the economic crisis and seeking better economic stability; or
c.Freedom of speech and expression;
further in this decision. It is not the applicant’s experience, and he does not have a well-founded fear of persecution, or satisfy the complementary protection criteria on this basis.
I also do not further deal with the generic claim in the application regarding ‘fllee[ing] climate change and rising sea levels’. To the extent that climate change is relevant and connected to the applicant’s claims and evidence before the Tribunal regarding the Island of [Island 1] and the flow-on effects of this for his ability to relocate permanently to his own customary lands, I discuss this further as an element of his claims below.
Before the Tribunal
The applicant made the following claims, in summary, before the Tribunal. I discuss the claims in more detail where relevant under ‘Consideration of Claims and Evidence’.
a.He grew up and lived in a small settlement called ‘[Settlement 1]’ outside [Village 1] in the province of [Province 1]. His parents had relocated to that place, which is his father’s mother’s village but they are not themselves registered for that land, do not have land rights in that area, and their residence there was a reflection of an understanding that people from his registered land (and his father’s registered land) in [Island 1] can reside in [Settlement 1].
b.His only work in Fiji had been working farming land in [Settlement 1], and later on [Island 2]. His family did not ‘really belong there’ in [Settlement 1]; they just ‘lived out of the good will’ of his father’s maternal relatives. However, when his father’s father-in-law passed away things changed and his evidence was that they no longer felt the same welcome.
c.The applicant was successful in his farming in the village and underlying tensions around his family’s place in the village were made more difficult by the success of him and his family.
d.A very close cousin from his father’s maternal side became hostile to them (who was a landowner and leader in the village), gossiped about them and was confrontational with him. A series of increasingly serious events then unfolded:
i.This cousin developed a pattern of intentionally releasing his livestock into the applicant’s crops to damage them. The applicant tried to persuade the cousin to stop doing it. He went to village elders. He went to police. However, the damage of his crops continued.
ii.After this pattern had continued, the applicant reached what he called a breaking point in 2020 and went to his cousin’s property and cut open the leg of one of the cows as a ‘warning’ to them. He told the cousin he had done this and that he should cease releasing the livestock into the crops. This ‘only aggravated the situation’.
iii.Retaliation from his cousin and others aligned to his cousin then followed that night. His cousin and others began belting the applicant’s house with rocks. This was about 1am in the morning. At this point, he took his wife and children to the closest village – [Village 1] – about 30 minutes away by foot.
iv.The applicant went back to [Settlement 1] that night. The whole village was at his house because his house was on fire. Even while the house was burning some of the village members loyal to his father – his father’s uncles - were restraining his cousin who was ‘trying to assault me’. Most of the village, however, supported what his cousin had done.
v.The applicant left [Settlement 1] that night. The house was irreparably damaged. He contacted his wife’s father and asked if he could come and collect his children and wife and take them to his village in [District 1].
vi.The applicant was not able to settle in [District 1] because he did not own land there or have land rights to this area, it is not his customary land, and he would be unable to farm there. He stayed with his brother in [Island 2], an Island, where his brother was temporarily leasing land which he lived on and farmed.
vii.The applicant saw his wife and children one week every month, travelling from [Island 2] on the [ferry], arriving in Suva at [time] and then taking a bus to the [area] where [District 1] is and arriving at about [time]. He continued this pattern until he came to Australia as part of the seasonal worker program.
viii.The applicant never returned to [Settlement 1]. His cousin and his friends threatened the applicant that whatever he did to the animal, they will inflict the same on him if he returns to [Settlement 1]. The threat remains current. The relevant people remain in [Settlement 1].
e.In terms of where the applicant ‘should be living’ in Fiji – his customary/land rights relate to the Island of [Island 1], which is his father’s village. [Island 1] is a very small island which is fully populated already. Many people with land rights on [Island 1] have migrated to the mainland due to lack of housing. This is why his family relocated to the mainland originally. He has ‘never set foot on the Island’. More recently when the Island experiences storm surges or extreme weather the waves ‘roll from one side of the Island to the other’.
f.He cannot relocate to [District 1] or [Island 2] permanently. Neither area provides opportunity for him to provide for himself or his family. He wants to reunite his family in a safe place where he is able to earn a livelihood.
The Tribunal provided time for the applicant to obtain and lodge a copy of the official records he had explained exist in Fiji, which indicate that his customary land is [Island 1]. This was later lodged (see below, Landowners registration).
Following the first hearing, the Tribunal wrote to the applicant putting him on notice of concerns the Tribunal had developed about the credibility of his evidence about residing in [Settlement 1] and the events that he said had followed because of public reports (which the letter enclosed) regarding the establishment of ‘[Settlement 1]’ in a different province of Fiji many years after the time the applicant had told the Tribunal he had first lived in [Settlement 1]. A second hearing was also listed, as required by s 425 of the Act, to provide the applicant with an opportunity to comment on this new issue in the review.
In the period between the first and second Tribunal hearings the applicant filed material in support of his case, specifically:
a.Certificate of Registration, Register of Native Landowners issued by the Native Lands and Fisheries Commission [in] November 2022. The certificate names the applicant as the son of [father’s name] and his [village] as [Island 1] (Landowners Registration).
b.Letter dated [in] September 2024 which the applicant identified at the second hearing was signed by the ‘District Officer’ of the [named] Provincial Council (on this council letterhead and with an official seal stamped on it) which among other things states that ‘[The applicant], hails from [Village 1], in the district of [District 2], in [Province 1] Province’ (DO Letter).
c.Handwritten letter signed by [name] who is identified in the letter as the village headman of [Village 1] and [Settlement 1], providing a phone number. The letter narrates the applicant’s father’s original migration to [Village 1], conflict arising there, his move then to [Settlement 1] and that the applicant’s own family were then threatened by landowners in [Settlement 1], the conflict is ‘not yet over’, and that writer ‘witnessed everything that happened to [the applicant’s family].’ Relevantly the headman also notes that ‘[Settlement 1] is not yet registered until now’ (Headman letter).
At the second hearing, the applicant explained to the Tribunal that:
a.The [Settlement 1] referred to in the public reports is not the place his evidence related to. The [Settlement 1] he lived in is a smaller settlement in a different area of Fiji which does not have its own governance and is unregistered. He had hoped that the letter from the District Officer had explained this, but he must not have explained what was needed properly to this officer because he accepts that this is not covered in the DO letter.
b.The references to him ‘hailing from [Village 1]’ in the DO letter were requested by him to establish to the Tribunal that had lived for his life in [Settlement 1]. The settlement itself is so small that it is common for people to say that they hail from a very nearby village, which in this case is [Village 1], despite him not having land rights there.
c.The [Settlement 1] his evidence relates to is most close to the [District 2] primary school. From this place he would travel by foot (there are not suitable access roads) to [Settlement 1] a few kilometres away. There is a Methodist Church in [Settlement 1] which is a landmark, but it is held inside a house.
d.There is another [Settlement 1] which he agrees is an established, registered, settlement which was government sponsored and made for community members in another part of Fiji (as reflected in the public reports). This is not his home. He does not assert it is.
e.He is concerned about the potential of relocating to [District 1] because, in addition to his previous evidence, there is tension between him and his wife’s siblings which exists because of many disagreements and disputes he and his wife had in the early period of their relationship (but not now). His father-in-law is a foil to these issues, but he is about [age] years old now and he is not sure what would occur and how welcome he would be when he dies.
f.He is concerned about the potential of relocating to [Island 2] with his brother because it would mean that he was rendered dependent on his brother in circumstances where that is not welcome, the brother’s land is only 3 acres and he would not be able to develop his own land and livelihood there and reunite with his family.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the refugee criteria or the complementary protection criteria. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration, and that the applicant meets the complementary protection criteria.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
No s 423A adverse inference arises
I note at the outset that the applicant’s claims regarding his fears in [Settlement 1] were not raised before the primary decision-maker. This raises the prospect that s 423A of the Act may apply to require I draw an inference which is unfavourable to the credibility of this new claim and the supporting evidence, unless I am satisfied that there is a reasonable explanation for why the claim was not raised before the primary decision was made.
I do not consider the inference under s 423A arises. In circumstances where the applicant was not invited to an interview by the delegate, I am satisfied there is a reasonable explanation for why the claim and the evidence in support of it were not raised before the primary decisions were made. This is that (as the applicant narrated to the Tribunal and I accept) he was assisted to complete the application form by someone who was recommended to him, and that person did not question him in any thorough way about his life before finalising the form; instead he was told not to worry about the preliminary details and to wait for an email acknowledgement of his application.
Findings of fact relevant to the review
I accept the following facts arising from the applicant’s oral evidence at hearing and the documentary evidence filed in support of his application with the Tribunal.
a.The applicant’s family (through the applicant’s father) are registered to land in [Island 1]. The applicant has land rights there. The applicant has no other registered land to his name. This is corroborated by the Landowners Registration.
b.The family migrated from [Island 1] prior to the applicant’s birth because of land shortage at that place and overpopulation.
c.[Island 1] is a small, low-lying island in Fiji, off the [coast] of [Province 1].[1] The most definitive analysis of the impacts of anthropogenic climate change on low lying Islands including in Oceania, published by the Intergovernmental Panel on Climate Change,[2] confirms that:
[1] [Source deleted].
[2] Mycoo, M., M. Wairiu, D. Campbell, V. Duvat, Y. Golbuu, S. Maharaj, J. Nalau, P. Nunn, J. Pinnegar, and O. Warrick, 2022: Small Islands. In: Climate Change 2022: Impacts, Adaptation and Vulnerability. Contribution of Working Group II to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change [H.-O. Pörtner, D.C. Roberts, M. Tignor, E.S. Poloczanska, K. Mintenbeck, A. Alegría, M. Craig, S. Langsdorf, S. Löschke, V. Möller, A. Okem, B. Rama (eds.)]. Cambridge University Press, Cambridge, UK and New York, NY, USA, pp. 2043–2121, doi:10.1017/9781009325844.017. Accessed online: to larger landmasses, many climate change-driven impacts and risks are amplified for small islands. This is due largely to their boundedness (surrounded by ocean), their comparatively small land areas, and often their remoteness from more populated parts of the world, which restricts the global connectivity of islands. This is true on all types of islands.[3]
[3] Ibid, [15.3], 2050.
ii.Small islands are already experiencing an array of negative climate change impacts while climate risks are projected to increase as global average temperatures rise…Barriers and limits to adaptation also contribute to greater levels of both economic and non-economic loss and damage for small islands...[4]
[4] Ibid, Box 15.2, 2073.
iii.Observed changes—including increases in air and ocean temperatures, increases in storm surges, heavy rainfall events, and possibly more intense tropical cyclones—are already reducing the number and quality of ecosystem services, thereby causing the disruption of human livelihoods, damage to buildings and infrastructure, and loss of economic activities and cultural heritage on small islands.[5]
[5] Ibid, ‘How is climate change affecting nature and human life on small islands, and will further climate change result in some small islands becoming uninhabitable for humans in the near future?’, 2095.
d.The applicant grew up and resided until 2020 in a small, unregistered, settlement outside [Village 1] in [Province 1] Province, called ‘[Settlement 1]’. Despite initial concerns, the Tribunal accepts this to be the case based on the further detail given by the applicant at the second hearing, the DO letter and the Headman letter, as well as further references to this settlement located by the Tribunal after the second hearing in reliable documents.[6]
[6] [Source deleted.]
e.In 2017 the applicant married his wife. They have [number] children.
f.The applicant’s family resided in [Settlement 1] without land rights on an understanding they could live there. Underlying tensions regarding their inferior position in the Settlement escalated significantly between an emerging village leader: the applicant’s cousin (with land rights), and the applicant. This was the applicant’s evidence; it was detailed and internally coherent. It is also corroborated by the Headman letter. The family’s situation in [Settlement 1] is also broadly consistent with the complex land rights and property law situation described by DFAT in its country information report for Fiji.[7]
g.This cousin and his associates released their livestock into the applicant’s land to damage and destroy his subsistence agriculture crops including because of animosity that developed because the applicant and his family were succeeding financially despite not being landowners and [Settlement 1] not being ‘their place’. I note this element of the applicant’s evidence is also broadly consistent with the assessment by DFAT of the inherent insecurity of these informal arrangements: ‘informal land users have few legal rights and may be asked to leave at any time’.[8]
h.In 2020, the applicant approached village leaders, and police, as well as the cousin directly, requesting that the cousin stop damaging his crops. When no change occurred, the applicant in a retaliatory and ill-advised ‘warning’ move slashed open with his knife the leg of one of the cows owned by the cousin.
i.Tensions escalated dramatically – the cousin and his associates (condoned by the majority of the village) stoned the applicant’s house, and once the applicant and his family had fled to the nearby village of [Village 1], his house was burned down during the night. The applicant returned to [Settlement 1] after leaving his family in [Village 1] and his house was alight with the village watching. Police attended after the house had been burnt, and at that point their focus was on calming the conflict between the applicant and his cousin.
j.The applicant left [Settlement 1] on the night his house was burnt.
k.The applicant’s wife and children relocated to [District 1]. They have lived there safely since 2020. They are dependent on the applicant’s wife’s father-in-law and live in his house.
l.The applicant was unable to relocate to [District 1] as he does not have land rights there and could not pursue farming and make a livelihood or live independently there. He spent the period 2020-2023 in a temporary living arrangement, assisting his brother on a leased plot of land in [Island 2]. After this, he travelled to Australia. This plot in [Island 2] is no longer available. His brother and his wife are unable to support the applicant and his family on their current landholding of 3 acres where they live and raise crops, and where the applicant would be unable to make his own living.
m.Through 2020-2023, the applicant travelled one week out of every four to visit his family in [District 1], making an approximately 24-hour trip by ferry and bus each way to stay connected to his family. The applicant was not pursued by his cousin on [Island 2] or in [District 1].
n.The applicant has never returned to [Settlement 1]. The cousin and his associates threaten that if the applicant returns they will do to him what he did to the livestock. His house is irreparably burnt. The threat is ongoing and the village headman for the area considers the conflict continues.
[7] DFAT Country Information Report – Fiji, 20 May 2022, 9.
[8] Ibid.
Refugee criteria analysis

I do not consider that the applicant meets the refugee criteria. Two main issues arise. First, in order to meet the refugee criteria, the real chance of serious harm faced by the applicant must exist across the whole of the country. I do not consider it does: recent history establishes clearly that the applicant and his family have been safe from the cousin in [District 1] and [Island 2] from 2020 to 2023. Second, I do not consider that the essential and significant reason for the claimed harm by the applicant is one of the required reasons under s 5J(1) of the Act, being race, religion, nationality, membership of a particular social group or political opinion. For these reasons, I do not accept that the applicant meets the refugee criteria.
Complementary protection criteria analysis
I do consider that the applicant meets the complementary protection criteria. I explain why below.
Real risk of significant harm to the applicant
After careful consideration, I accept the applicant’s core claims regarding a fear of his cousin in [Settlement 1]. I accept the past conflict occurred, as I have set out already above. I accept that, at the time and enduringly the applicant’s own subjective fear of being severely harmed by his cousin and associates has meant that he hasn’t returned to his lifelong home, and that his wife and children have also left [Settlement 1]. I accept this situation means that, until the applicant travelled to Australia, he made monthly trips to his wife’s father’s land to visit his family but was otherwise separated from them by circumstance.
Ultimately, I accept that that there is a real risk of significant harm to the applicant if he was to return to [Settlement 1] or the surrounding area including [Village 1]. I accept that even though there has been no incident since 2020 when the applicant fled, the community is small, the underlying tensions will persist, the specific animosity towards the applicant remains, and that the village headman considers (as the applicant does) that the threat of harm to the applicant remains live in [Settlement 1]. The absence of issue since 2020 also has to be seen in the context of the applicant having fled the area and not returned since his house was stoned, burned down and his cousin attempted to assault him (and was restrained from doing so by some members of the village who were present to watch his house burn down, but that other village members also condoned the cousin’s actions).
I consider that there is a real risk the applicant’s body will be slashed open with a weapon in a violent attack by the applicant’s cousin and that the applicant will sustain intentional, significant, injuries (broadly akin to those he inflicted on the cousin’s livestock). I also consider that there is a risk more generally of serious physical harm to the applicant including with a sharp weapon and that the harm may escalate rapidly (as events did in the past on the night his house was burned down) in the context of the long-running underlying tension and animosity between the applicant and his cousin.
I also consider that the harm meets the definition of significant harm, specifically cruel or inhuman treatment or punishment as defined under the Act: see, s 36(2A)(d), s 5(1). I am satisfied that the violence described above would cause the applicant severe physical pain, that it would be intentionally inflicted on him by his cousin or his cousin and his associates, and that the carve outs regarding inconsistency with Article 7 of the Covenant and lawful sanctions do not apply here.
Sufficient protection from authorities is not available
Pursuant to s 36(2B)(b) there is taken not to be a real risk that an applicant will suffer significant harm where they could obtain, from an authority of the country, protection such that there would not be a real risk they will suffer significant harm. In this case, I do not consider that there is sufficient protection that there would not be a real risk that the applicant would suffer significant harm. Relevantly, DFAT reports:[9]
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’.
[9] DFAT Country Information Report – Fiji, 22 May 2022, 22. I also note that DFAT reports 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’ (at 23).
The applicant’s own experiences are of police not arriving in time to disrupt the stoning and burning of his house. I am also aware that the applicant (in other evidence) described that access to [Settlement 1] is by foot, even for him as a resident. In all these circumstances, I consider that there is a real risk that the police or other authorities may not arrive in time to disrupt violence when it ultimately arose between the applicant and his cousin. This reality is heightened by the fact that it will not be possible to predict when exactly the violence towards the applicant may occur.
For completeness, I confirm I have also considered whether, to the extent local village leaders or the headman would be considered authorities, they may be able to intervene with the effect that there is taken not to be a real risk of significant harm to the applicant. I do not consider that they will. The applicant’s evidence, which I accept, is that this did not prevent the escalation of tensions in 2020. Village leaders were unable to prevent the stoning and burning of his house, and the Headman letter does not indicate that the situation is one that he considers he or other leaders would prevent recurring if the applicant returned to [Settlement 1].
Relocation is not reasonable
I do not consider that relocation to another part of Fiji is reasonable in the applicant’s case, in order to avoid the real risk of significant harm to the applicant in [Settlement 1] and the surrounding area. At the outset, I note DFAT’s assessment regarding internal relocation options in Fiji:
There are no legal limits to relocation, but Fiji is geographically small and land is held tightly in kin groups, which limits internal relocation in practice. Even Suva, the largest city in Fiji, has only a small suburbia and few relocation options. Movement to another island is possible but in practice most relocation is to urban centres from other islands. Due to the COVID-19 pandemic and Fiji’s reliance on the tourism and agriculture sectors, relocation may not be practical to locations where no jobs exist. Successful relocation would depend on an individual’s skills and prospects in the place to which they are relocating.
I have also considered as relevant the following factors:
a.The applicant has an employment history only as a small-scale agricultural farmer.
b.The applicant’s own customary land is [Island 1], but relocation to this place is impractical because land is not physically available to be settled on or farmed. These were the pressures that pushed his father’s own migration to the mainland in the first place. As well, in the applicant’s case and especially given his work as a subsistence farmer, I do not consider it is reasonable for the applicant to relocate to an area that is itself subject to significant climate pressures, and where storm swells mean that sea water floods the Island. I note the best available science indicates (as described above) that the island is already and will increasingly be subject to climate impacts ‘causing the disruption of human livelihoods, damage to buildings and infrastructure, and loss of economic activities’[10] (among other things).
c.The material before me does not suggest that the applicant has any relevant employment history (in Australia or Fiji) that would see him equipped to compete for and secure work and a home for him and his family in the ‘small suburbia and few relocations options’ in Suva. His background is exclusively in farming. He is not affluent. He has no history of living in Suva. He did not travel there or seek to live there in 2020 when he fled [Settlement 1]. Even if he found employment, DFAT’s assessment indicates his chances of finding stable housing for himself and his family are limited.
d.The applicant has no land rights in [District 1], where his wife and children currently reside with his father-in-law. As DFAT reports, ‘informal land users (as the applicant would be) have few legal rights and may be asked to leave at any time’.[11] The applicant’s options to sustain himself and his family independently there are, at best, uncertain. In itself this is a factor; but it also contributes to a reality that the pattern of displacement, informal settlement on lands of other landowners, followed by ultimate tension and uncertainty and potentially conflict may repeat again. Some pre-existing tension with the landowners (his wife’s siblings) already exists. The overall situation for the applicant in [District 1] saw the applicant live apart from his wife and children (though he travelled one week per month to reunite with them) for almost three years previously. It does not seem viable or reasonable.
e.The applicant also has no land rights in [Island 2], the location he separately fled to after he left [Settlement 1] and where he lived temporarily (without his family) with his brother and his wife. The applicant told the Tribunal that the applicant’s brother now owns a small (3 acre) lot in [Island 2] (having purchased a small amount of available land) but there is not sufficient room for him and his family to reside there and to sustain their own livelihood. He also stated that his brother and his wife would be unwilling to live with him and his family long term and he would be a burden. He said that the small amount of land for lease which he and his brother had farmed is no longer available. In light of DFAT’s advice that land is tightly held in kin groups and internal relocation options are limited,[12] as well as my assessment that the applicant’s credibility is generally good, I accept this to be the case.
f.The applicant does not have land rights or own land in any other part of Fiji.
[10] See paragraph 20 above.
[11] DFAT Country Information Report – Fiji, 22 May 2022, 9.
[12] Ibid, 25.
In considering relocation, I confirm I have also considered the DFAT report insofar as it concerns family support in times of need being culturally important and common,[13] and that people often move back to their traditional villages and obtain support through family networks. For the reasons already set out above, these options do not apply for the applicant in circumstances where his own village ([Island 1]) and registered land is not a practical relocation option, and [District 1] and [Island 2] do not provide sufficient options for him to sustain himself and live independently with his family to make his relocation reasonable.
[13] Ibid.
In all of these circumstances, I accept that it would be unreasonable for the applicant to relocate to another part of Fiji in order to avoid the real risk of significant harm to him in [Settlement 1] and the surrounding areas. Section 36(2B)(a) is not engaged.
For all of these reasons I am satisfied Australia has protection obligations towards the applicant because there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that he will suffer significant harm. No exceptions apply that would otherwise alleviate Australia’s protection obligations. I find that the applicant meets the complementary protection criteria.
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 s 36(2)(a).
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). The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.
Hollie Kerwin
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.
…

[2024] AATA 4419

25 September 2024

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