2404007 (Refugee)

2404007 (Refugee) [2024] AATA 2141 (13 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2404007

COUNTRY OF REFERENCE: Fiji
MEMBER:David James
DATE:13 May 2024
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 May 2024 at 9:45am
CATCHWORDS
REFUGEE – protection visa – Fiji – violence from police and criminal gangs – conviction for assaulting a police officer – physical assault – detention – economic conditions – employment – state protection – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 56, 65, 411, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
ABT16 v Minister for Home Affairs [2019] FCA 836
Anadaraj Subramaniam v MIMA (1998) VG310 of 1997
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chan Yee Kin v MIEA (1989) 169 CLR 379
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Fox v Percy (2003) 214 CLR 118
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MIAC v SZQRB (2013) 210 FCR 505
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
SZLVZ v MIAC [2008] FCA 1816
SZRQA v MIBP [2013] FCA 962
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 26 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 claims to be a of citizen of Fiji, applied for the visa on 21 November 2023. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H of the Act and was therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Fiji, there is a real risk they will suffer significant harm as defined in s 36(2)(aa) of the Act. Therefore, the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
The applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (Tribunal) on 4 March 2024. The applicant provided a copy of the delegate’s decision with their application for review.
As noted above, the applicant provided a copy of the delegate’s decision with his application for review. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the applicant’s protection visa having considered the material before the delegate. The Tribunal is satisfied that decision of the delegate is reviewable under s 411(1)(c) of the Act.
The applicant appeared before the Tribunal on 9 May 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.
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.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even when the possibility of persecution is below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
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.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
Issues
The issues in this review are whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that, if the applicant was returned to Fiji, they would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Fiji, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Documentary evidence before the Tribunal
The Tribunal has before it documents from the Department and those submitted by the applicant to the Department and the Tribunal relating to the applicant’s claims for protection, which include (but is not limited to) the following documents, considered by the Tribunal:
·The applicant’s protection visa application lodged on 21 November 2023;
·The Department’s s 56 of the Act, ‘Request for more information for a protection visa application’ correspondence of 16 January 2024, in which the ‘Request Details’ provided that:
I now invite you to provide further information regarding the following claims in your application and other matters that I may take into consideration in assessing your claims.
Delay in lodgement
In your application, you claimed that you fear returning to Fiji because of police and gang violence. However, you did not apply for a Protection visa until approximately 7 months after arriving in Australia. Due to the length of time between your arrival in Australia and when you lodged your application, I am concerned about the genuineness of your protection claims. Therefore, I am inviting you to provide any information about why so much time passed before you lodged your application.
Claims lacking detail
Your statement indicated you experienced violence from police officers and gang members in Fiji. Your claims lack key details such as dates and locations of events. You have also not provided any evidence in support of these claims.
Due to your lack of detail or evidence, I am concerned about the genuineness of your protection claims. Therefore, to assist me in deciding whether to accept that these claims are genuine, I am inviting you to provide further information and documentary evidence about what happened to you in Vanuatu including dates and locations of events.
● Provide details and identities of the group and group members that you engaged in street fighting with. How and when did you become involved with this group?
● Provide details and evidence of being arrested and questioned by police. Provide information such as an arrest warrant, incident report, police report or police notice.
● Provide details and evidence of harm done to you by the police.
● Did you seek medical treatment at any stage? If so, provide details of time, location, medical assessments and any evidence of being treated by health professionals. And if not, why did you not seek medical attention?
● Provide details of the harm you experienced from your friends and elders and their identities.
● Provide details and information about coming to Australia. How did you protect yourself in Fiji from the police and gang violence until you came to Australia?
● Provide details and evidence the threat against you will be ongoing if you return to Fiji.
If you are unable to provide more information about your claims or copies of documents, please provide a detailed explanation of why you cannot provide them. If you are unable to provide documents, please also provide details of the efforts you made to obtain them.
Any information that you provide in response to this letter will be taken into account in the decision on your application.
Please note that a decision on your application may be made on the information in your application and on any response to this letter, and you may not be given another opportunity to provide more information about your claims.
·The applicant’s application for review of 4 March 2024 and the annexed decision record of 26 February 2024;
·The administrative and movement records of the Department relating to the applicant;
·A copy of a letter emailed to the Tribunal on 1 May 2024, under the hand of [name] (applicant’s father), dated 1 May 2024, in which the writer states that they witnessed the applicant being assaulted and abused by corrupt police in Fiji in September 2017; and
·A copy of a letter emailed to the Tribunal on 2 May 2024, under the hand of [Person A], dated 1 May 2024, in which the writer states they witnessed the applicant being assaulted and abused by corrupt police in Fiji in September 2017.
Claims for protection
The applicant in his protection visa application, declared that he had been convicted in Fiji of the assault of a policeman [in] February 2018, and described his offending as having assaulted a corrupt police officer that had assaulted and abused him which resulted in him receiving a sentence by the court of [term] imprisonment. The applicant in his application made the following claims for protection (as summarised) that:
·He left Fiji because of physical abuse, punishment and continual harassment from police in his village;
·After being assaulted by a policeman in the village one day he retaliated and hit back and was taken to the police lock up where he was repeatedly beaten with a baton, punched, kicked, spat on, and refused water and any contact with his family;
·He faced continuous peer pressure from friends and elders which affected him psychologically and emotionally and he was an unwilling part of a group who engaged in street fights as he associated with the wrong crowd;
·He relocated within Fiji from [Village 1] to Suva where he stayed with a family friend and his [coach], but the gangs have connections everywhere and they found him and so he does not believe that he can relocate again as the gangs will find him;
·He fears returning to Fiji as he will get involved with the street crowd and gangs who are involved in criminal activities. He will also face retribution and significant harm from the local corrupt police. He fears his life will be in serious danger from the gang and he does not want this life for himself and that is why he came to Australia to seek shelter and safety; and
·He does not believe the authorities will protect him as the police are corrupt and violent and because of his previous history they will not help him, and the government is unable to provide assistance to everyone.
Department interview
The applicant was not offered an interview by the Department.
Delegate’s decision
The delegate’s decision of 26 February 2024, to refuse the protection visa was made on the information before the delegate. The delegate found, noting that the applicant had not as of the date of assessment provided any additional information in relation to their claims including the additional information specified in the s 56 of the Act invitation, that the applicant’s claims were generic and lacked any substantial detail which would indicate the applicant was previously, or would in the future be of adverse interest to the Fijian police or any gangs in Fiji. Therefore, the delegate was not satisfied that the applicant met the criteria in s 5H(1) of the Act, and therefore was not a refugee. The delegate was also not satisfied that there were 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 as defined in s 36(2A) of the Act.
Invitation to attend a hearing
On 8 April 2024, the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on 9 May 2024 at 9:30 am. This correspondence advised the applicant that the Tribunal had considered all the material before it relating to their application, but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the case without further notice.
Country information
The Tribunal has taken into account the DFAT Country Information Report Fiji, 20 May 2022, as relevant, including ‘Security Situation’ at 2.34 where it is reported that:
Fiji is generally stable and secure. The most recent elections in 2018 were orderly and free from violence. Crime rates, especially for violent and organised crime, are generally low. The risk of terrorism is low. Organised crime exists in Fiji, but it is not large-scale and is unlikely to affect people’s day-to-day lives. Some alcohol-related street violence occurs. Domestic violence is a serious problem (see Women). Accusations of police violence are commonly reported and regularly investigated (see Police).
Under the heading of ‘Police at 5.6 to 5.16, it is reported that:
The Fiji Police Force (FPF) is a national police force that covers the whole country. The US Department of State Overseas Security Advisory Service 2020 Crime and Safety Report assesses Fiji police as ‘professional’ and notes recent improvements in training and accountability. It notes that police may not be based in vehicles and may not arrive in time to disrupt crimes in progress but assesses that ‘victims of crime can expect fair treatment with dignity’.
Police are generally well-resourced by the Government and receive funding and training from overseas aid partners. The police are, in general, disciplined (but see comments on violence below). Policing is conducted on a community policing model and police are generally actively engaged with the communities they serve.
Corruption in the FPF is reported, but DFAT understands that it is not widespread. There are some allegations of corruption and DFAT is aware of pockets of corruption that have later been exposed and investigated. Complaints about the FPF are made to the Human Rights and Anti-Discrimination Commission.
Policing in outer islands and more remote places is more difficult because of the greater influence that the chief-based hierarchy has in the outer regions. Police are generally not deployed to their home communities to avoid conflict with traditional hierarchies.
The Fiji Police Force overall has the capacity to protect individuals from societal harassment, discrimination, and violence, and police are usually effective in carrying out their role in day-to-day crime detection, investigation, and prevention.
Police violence is often reported in the media and by human rights groups. In-country sources told DFAT that assaults in custody occur, and that monitoring and accountability systems to prevent such assaults are either not implemented or not implemented effectively. The situation is worse outside of cities. Convictions often rely on confessions, which may be extracted through beatings. DFAT understands that the situation is improving with courts dismissing cases that rely on evidence obtained through violence.
According to a 2020 article in The Guardian, the acting Commissioner of Police condemned ‘indiscipline’ among the ranks and ordered an investigation into the death of 46-year-old Mesake Sinu, who police claimed jumped to his death from a second-storey window. Critics allege that police beat Sinu to death. In the same article, The Guardian reported figures it had obtained showing that 400 charges of ‘serious violence’ were laid against police between May 2015 and April 2020, which included allegations of rape and homicide.
Police misconduct, including excessive violence, is regularly investigated with a full range of censures routinely used, from disciplinary measures to dismissal and criminal charges being placed. In most cases, there is reasonable action taken when a complaint is reported.
Five police officers were charged in 2020 after they threw a villager off a bridge. Four officers were allegedly involved in the assault and one other attempted to interfere with witnesses. In April of the same year, an opposition member of Parliament was arrested after he posted a video on Facebook in which he spoke about the incident.
A viral video published on social media in May 2021 showed two police officers holding a man’s head to the ground, with his arms held behind his back, while pepper spray was sprayed in his eyes. The man was wanted for possession of marijuana and had allegedly resisted arrest.
With the increase in the number of people with smartphones there has been an increase of similar videos posted to video-sharing platforms such as YouTube. Outside of prominent examples such as those mentioned above, in-country sources told DFAT that police violence is much less likely to occur in public, largely because people will film such events and the media will report on them.
And under the heading of ‘Judiciary and access to law’ at 5.17 to 5.20, it is reported that:
Courts include the Supreme Court, Court of Appeal, High Court and Magistrates’ Court. Most matters that affect the day-to-day lives of Fijians are heard in the Magistrates’ Court. Criminal proceedings are instituted by the independent Office of the Director of Public Prosecutions (ODPP); the ODPP also appoints police officers as prosecutors in courts. Criminal defendants generally get a fair trial. Judicial standards familiar in Australia, such as presumption of innocence, right to be present at trial and the right to be informed of details of charges, also exist in Fiji. ‘Assessors’, which were comparable to juries, were abolished in 2021.
The 2021 US Department of State Human Rights Report notes that the appeal courts may be slow to hear cases. In-country sources told DFAT that long delays are common but that civil cases, which may take several years, are usually much slower than criminal matters.
Judicial independence is disputed. Many judges are appointed on three-year contracts. Critics posit that the limited contracts affect independence because judges who are critical of the Government will not have their terms renewed. Some high-profile court cases have gone against the prosecution in recent years; for example, the 2018 acquittal of former Prime Minister and opposition leader Sitiveni Rabuka on corruption charges. Sources told DFAT that if corruption exists in the courts it is not common.
The Legal Aid Commission may provide legal assistance to indigent defendants. The Commission is recognised under the Constitution and is state funded. It provides services in family, criminal and civil law and may file out briefs to private lawyers who may volunteer their time and expertise. Eligibility criteria apply, with an annual income threshold of FJD15,000 (about AUD10,000). The Commission has recently increased its geographic outreach and more people, including in rural and maritime areas of the country, are now able to access its services. There may be few other lawyers practising in more remote areas, which may in practice mean that people cannot access representation, especially where Legal Aid is already acting for the other party. The quality of legal services provided by legal aid is variable.

The Tribunal further notes that the Fijian Human Rights and Anti-Discrimination Commission on their website outline their role as being:
The Human Rights and Anti-Discrimination Commission has the constitutional mandate of developing a culture of human rights in Fiji by promoting the protection, observance and respect for human rights in both public and private institutions. It does so by educating the public about their rights and freedoms, receiving and investigating alleged violations of human rights and taking steps to address these violations including conciliations and making application to court for redress, making recommendations to Government in relation to existing and proposed laws to ensure compliance with human rights standards as well as ensure compliance by the State in fulfilling its international human rights obligations with respect to international human rights treaties and conventions.[1]
[1] Httpps://>
Additionally, the Tribunal notes that Transparency International in their report titled ‘Transparency International Supports Fiji Independent Commission Against Corruption’ (FICAC) of 10 February 2023, reported that:
With a score of 53 out of 100 on Transparency International’s Corruption Perceptions Index, released Tuesday 31 January, Fiji is the highest scoring Pacific country, in part due to the valuable work of FICAC. As one of the few countries in the region with a national anti-corruption agency, Fiji stands up as a model for others – successes that must be built upon, not reversed.[2]
[2] Transparency International Supports Fiji Independent Commission Against Corruption’, Transparency International, 10 February 2023 – hearing – 9 May 2024
The Tribunal hearing was conducted at the Brisbane Registry in the English and Fijian languages.
The Tribunal explained to the applicant that the hearing would consider the applicant’s application for a protection visa afresh.
The applicant, when questioned by the Tribunal as to his understanding of the relevant statutory framework and concepts as to the refugee and complementary protection criteria, told the Tribunal that it had not been explained to him and that he did not have an understanding of the criteria.
The Tribunal then provided an outline of the refugee and complimentary protection criteria to the applicant, who then acknowledged that he understood the criteria.
Under questioning, the applicant told the Tribunal that he had come to Australia on a Tourist visa in March 2023 to pursue an opportunity to play [sport 1] for [Club 1] where he was paid $[amount] a game by the Club. He explained that his Fijian [sport 1] agent, [Mr A], had organised for him and [other] Fijian [sport 1] players to travel to Australia and play commercially for [Club 1]. He further explained that the club had made a payment to [Mr A] to have them contracted to play for the club and for them to have been issued with appropriate working visas.
The applicant told the Tribunal that after his agent ([Mr A]) had taken the Club’s money he did not organise any working visas for the players who played commercially for the Club in 2023 while they remained in Australia on tourist visas.
The applicant further told the Tribunal that by the time his tourist visa had expired in June 2023, he had formed a relationship with his current partner, [named] who helped him make his application for the protection visa.
When asked why he had applied for the protection visa, the applicant told the Tribunal that he had done so, because he wanted to stay in Australia and continue to play [sport 1] for payment which he could not further do so because his agent had not applied for the right visa. He further stated that he had by this time, also decided that he wanted to stay in Australia because of the better employment opportunities that were available to him and because he had formed a relationship with his current partner. He said that with the assistance of his partner he made application for the Protection visa so he could obtain working rights in Australia through the subsequently issued Bridging visa.
When asked whether he held any fears of being harmed if he was to return to Fiji, the applicant told the Tribunal, that he did not want to go back to Fiji as he is the only one working in his family. He further explained that his father is un-well and that he supports his father and [Sibling A] in Fiji through payments he makes to them from his wages and with the additional financial assistance of his partner. He told the Tribunal that his [Sibling B] had [passed away] two years ago and that his mother had also passed away after [a medical condition] in 2020.
The applicant told the Tribunal that he was presently working as a labourer for [Employer 1] and with the assistance of his partner he was sending $150.00 a week to his father and [Sibling A] in Fiji. He told the Tribunal that as his father was un-well and his [Sibling A] was not employed, they needed his financial support, and he would not be able to provide such support to them if he was returned to Fiji where he would only be able to obtain some lowly paid farm work.
The applicant was then taken through the claims he had made in his application for the visa, and in reply, he told the Tribunal that:
·He had not left Fiji because of physical abuse, punishment and continual harassment from police in his village; rather he came to play [sport 1] and get a better life and help his family back home.
·As to his claim that after he had been assaulted by a policeman and was taken to the lock-up where he was repeatedly beaten with a baton, punched, kicked, spat on and refused water. He told the Tribunal in reply, that when he was out one night in 2017 in his village, he had become drunk and while having a meal he had been approached by the police because he was drunk. He explained that during his arrest he had lashed out and struck a police officer and he was then charged with assaulting the officer and was when arrested and later at the police station, struck with a baton and punched but not kicked, spat on, refused water and refused contact with his family. He further explained, that after being held in the cells overnight he was bailed, and that in February 2018 he accepted responsibility for his actions and plead guilty to the charges before a Magistrate who jailed him for [term]. He further told the Tribunal that he was released from prison [in] May 2018, and then stayed in [Village 1] for two years before relocating to [Town 1] near Suva to play for a [sport 1] team. In [Town 1] he lived with his coach and worked for him on his [farm]. He said that after his release from prison he had not been involved in any issues with any police in Fiji.
·In relation to his claims that he fears getting involved with the street crowd and gangs and fears retribution and harm from the police; he told the Tribunal that although some of his friends in Fiji were involved in drinking and the selling of marijuana and that they had asked him on several occasions to join them, he had previously, and could again if he was to return to Fiji refuse to join them in their activities as he had not been involved in any past criminal activities but for the assault of the police officer in 2017. Further as he had already outlined, he did not hold any fears of being the subject of harassment and/or retribution from the police in Fiji.
·In relation to his claims that he faced continuous peer pressure from friends and elders, and this affected him psychologically and emotionally, and that he was an unwilling part of a group involved in street fighting, he repeated his earlier reply by stating that although he had been asked by friends to join them in their street and illegal activities he had and could in the future refuse to do so and this had not caused any issues for him.
·As to his claim that he does not believe the authorities will protect him, as the police are corrupt and violent and because of his previous history they will not assist him; the applicant in reply, told the Tribunal that he did believe, that if he needed assistance and/or protection, that he could obtain same from the police and/or other government authorities in Fiji.
Under further questioning, the applicant told the Tribunal, that in the two years after his arrest and imprisonment he had not been harassed and/or harmed by the police while he lived in [Village 1] with his father and [Sibling A]. He further told the Tribunal that he had also not been threatened, or otherwise harmed by the police while living with his coach in [Town 1] from 2020 until he left for Australia to play [sport 1] in 2023. However, the applicant did tell the Tribunal that he had been assaulted on one occasion in Suva by [members] of an opposition [sport 1] team. He explained, that while he was walking about Suva one evening after his team had won a game against a Suva team, he was confronted by [members] of that team who were drunk, and that they had verbally abused him and punched him in the cheek before he ran away from them.
Under further questioning, the applicant told the Tribunal that these boys from the opposing [sport 1] team had not further threatened and/or harmed him in Fiji but for that isolated incident after a game in Suva.
The Tribunal then discussed the country information as has been outlined above at paragraphs 21 to 23 with the applicant. In reply the applicant confirmed that the Fiji police force were an effective police force and that he could, if he needed to so, seek assistance and protection from them as to any threats of harm or approaches from gang members asking him to join them. He further acknowledged that he was aware that he could, if needed to so, make complaints as to police conduct with either the Fijian Human Rights and Anti-Discrimination Commission and/or the Fijian Independent Commission Against Corruption and obtain protection from these government agencies.
In conclusion, and under final questioning, the applicant confirmed that he was not worried about the police in Fiji or any gangs in Fiji and that he did not have any fears of facing physical harm if he was to return to Fiji in the future, but that he wanted to stay in Australia so that he could financially assist and support his family in Fiji. He further agreed with the Tribunal’s comments that he wished to stay in Australia for economic reasons so he could obtain better paid employment which would allow him to continue to financially assist his family in Fiji.
FINDINGS AND REASONS
The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa.
Country of reference
According to the protection visa application, the applicant claims to be a citizen of Fiji and provided a copy of his Fijian passport. Based on this material, the Tribunal finds that the applicant is who he says he is and is a national of Fiji. Fiji is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
Analysis
The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.
The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[3] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[4] This is consistent with the established proposition that it is for the applicant to make his or her own case.[5]
[3] Section 5AAA of the Act.
[4] Ibid (with effect from 14 April 2015).
[5] Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal; that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[6] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[7] and notes that in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.
[6] Fox v Percy (2003) 214 CLR 118
[7] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[8] A similar approach is taken in the Department’s Refugee Law Guidelines[9] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[10] which both provide useful guidance for this Tribunal.
[8] SZLVZ v MIAC [2008] FCA 1816 at [25].
[9] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
[10] UNHCR, re-issued February 2019 at [203]–[204].
Police and gangs
The applicant in his application for the protection visa, which on his evidence at the hearing was in part completed by his partner, so he could remain in Australia to play [sport 1] and earn an income, stated that he left Fiji because of physical abuse, punishment and continual harassment from the police in his village.
He further claimed that after assaulting a policeman he had been repeatedly beaten with a baton, punched, kicked, spat on and refused water and contact with his family.
The applicant also claimed that he faced continuous peer pressure from friends and elders, and this affected him psychologically and emotionally, and that he was an unwilling part of a group involved in street fighting.
He also claimed that he had relocated in Fiji from [Village 1] to Suva but as the gang had connections everywhere they found him and so he does not believe he can relocate in Fiji to avoid contact with the gangs.
The applicant in his application also claimed to fear returning to Fiji as he will become involved with the street crowd and gangs and face retribution from police that will place his life in serious danger and that he does not want this life for himself.
However, the applicant when confronted with his claims, immediately and honestly resiled from these claims. His evidence in this regard, is outlined above at paragraph 34. It was the applicant’s unambiguous and forthright evidence at the hearing, that he had travelled to Australia in 2023, not to escape any physical abuse, punishment, continual harassment from gangs or the police, but rather to play [sport 1] for payment in [Club 1 in] Queensland. Further, under questioning, the applicant outlined to the Tribunal that he did not hold any fears for his physical safety if he was to return to Fiji in the reasonably foreseeable future, but rather that he wished to remain in Austrlia for economic reasons.
The applicant at the hearing, told the Tribunal that he was now employed in Australia by a [company] and that his wages together with the additional financial assistance from his partner, allowed him to make regular payments of $150.00 to his father and [Sibling A] in Fiji and these payments assisted with their financial support.
The applicant at the hearing, also explained that his only fears as to returning to Fiji were that he would not be able to obtain employment that would provide the same level of income that he receives in Australia, and that this would significantly reduce his ability to financially assist his family in Fiji.
The Tribunal having identified the applicant’s fears as to a return to Fiji in the reasonably foreseeable future as being economic in nature, finds that such reasons do not relate to any of the reasons outlined in s 5J(1)(a) of the Act.
Additionally, the Tribunal notes that the applicant left Fiji and arrived in Australia [in] March 2023 having left Fiji after purportedly having been assaulted by corrupt police in September 2017 and subsequently having been jailed in February 2018 for [term]. The applicant then remained in Fiji for a period of almost 4 years and 11 months after being released from jail before he left Fiji for Australia. However, after arriving in Australia the applicant did not make his application for protection until 21 November 2023, almost 8 months after he had arrived in Australia.
The Tribunal finds that this delay in the applicant having made his application for protection to be inconsistent with the applicant’s original claims being genuine. In that regard, the Tribunal has considered Anadaraj Subramaniam v MIMA (1998) VG310 of 1997, where the Court held that even a three-month delay in lodging a protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant’s fears of persecution; and SZRQA v MIBP [2013] FCA 962 at [17] where the Court found no want of logic in the Tribunal reasoning, in circumstances where the applicant had obtained his student visa fraudulently, that the applicant ought reasonably to have realised that he was vulnerable to deportation, and that if he were in genuine fear of persecution he would not have delayed applying for a protection visa.
Therefore, on the evidence before it, and for the reasons outlined above, the Tribunal finds that the applicant does not face a real chance of persecution involving serious harm if he was to return to Fiji in the reasonably foreseeable future on account of his race, religion, nationality, membership of a particular social group or political opinion.
The Tribunal finds that the applicant’s fears in this regard are not well-founded.
Complimentary protection considerations
The Tribunal noting, as has been outlined above at paragraphs 51 to 54, and in accordance with the applicant’s evidence, as has been outlined above at paragraph 34, that the applicant’s only claim is an economic claim.

In that regard, the Tribunal has considered whether 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 the applicant will suffer ‘significant harm’ as defined in s 36(2A) of the Act, because of the economic situation, employment opportunities and level of wages available in Fiji.
However, as was conceded by the applicant during the hearing, the economic situation, employment opportunities and level of wages in Fiji, are all matters that are faced by the Fijian community at large, s 36 (2B)(c) of the Act.
Therefore, on the evidence before it, and for the reasons outlined above the Tribunal does not accept that 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 the applicant will suffer ‘significant harm’ as defined in s 36(2A) of the Act.
Refugee criterion
Based on the information before it, the Tribunal rejects the applicant’s claims of fear of persecution in their entirety and, having considered all of the applicant’s claims both individually and cumulatively, finds there has been no evidence of persecution or fears of persecution for the reasons provided in s 5J of the Act. The Tribunal finds that the applicant does not face a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal finds that the applicant’s fears of persecution are not well-founded as required by s 5J of the Act and therefore, the applicant is not a refugee within the definition of s 5H of the Act.
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) of the Act.
Complementary protection
Having concluded the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has also considered whether the applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
As noted above, the Tribunal is not satisfied that any of the applicant’s claims meet the refugee criterion. It is for the same reasons that the Tribunal is not satisfied that the applicant meets the refugee criterion and given the economic situation in Fiji is something faced by all of the Fijian community, that it is also not satisfied that the applicant meets the complementary protection criterion. Given the evidence before it, the Tribunal does not accept that 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 the applicant will suffer ‘significant harm’ as defined in s 36(2A) of the Act.
The Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Additional findings
Additionally, there is no suggestion that the applicant satisfies 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa.
As the Tribunal has found that the applicant does not meet the refugee and complimentary criteria and does not satisfy the criteria in s 36(2) of the Act, the Tribunal has not found it necessary to assess s 36(3) of the Act as to whether the applicant has a right to enter and reside in a country other than Fiji.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
David James
Senior Member

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

[2024] AATA 2141

13 May 2024

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