2404829 (Refugee)

2404829 (Refugee) [2024] AATA 3904 (30 May 2024)
Corrigendum
DIVISION:Migration & Refugee Division
CASE NUMBER:  2404829
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Lilly Mojsin
DATE OF DECISION:  30 May 2024
DATE CORRIGENDUM
SIGNED:11 October 2024
PLACE OF DECISION:  Sydney
AMENDMENT:  The following corrections are made to the decision:

1.On Page 2, paragraph 2, the sentence ‘He returned to Australia [in] November 2024’ should read as follows:
‘He returned to Australia [in] November 2023’.

Lilly Mojsin

Member
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2404829
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Lilly Mojsin
DATE:30 May 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 30 May 2024 at 10:42am
CATCHWORDS
REFUGEE – protection visa – Fiji – estranged wife and associates took over house and business and sold stock while applicant in Australia – after return, kidnapped and forced to transfer property title – police inaction – fear of harm or killing – ethnicity – applicant Indo-Fijian and wife Indigenous Fijian – country information – effective protection measures – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2w
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 27 February 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant first arrived in Australia [in] August 2023 and departed [in] October 2023. He returned to Australia [in] November 2024.
The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant will suffer serious or significant harm on his return to Fiji, within a reasonably foreseeable future.
The applicant appealed that decision to the Tribunal, attaching a copy of the Department decision to his review application.
The applicant appeared before the Tribunal on 29 April 2024 to give evidence and present arguments.
The Tribunal also received oral evidence from [Mr A], the applicant’s brother and [Mr B], his uncle.
The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi (Fiji) and English languages.
CRITERIA FOR A PROTECTION VISA
See Annexure A
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant’s claims, as outlined in his PV application, are summarised as follows:
·    The applicant is an ethnic Indo-Fijian of the Hindu faith
·    The applicant is a trained [occupation] and has owned and operated [businesses]. He operated his first [business] between 2014 and 2018, and the second between 2021 and 2023.
·    The applicant's wife came to Australia in 2022 on a work permit and asked the applicant to come to Australia. He left his [business] in the care of a friend.
·    The applicant's wife returned to Fiji in August of 2023 His wife's current boyfriend and his associates started selling the [business equipment] at throwaway prices to meet their lavish life style.
·    They chased away the applicant's friend who had been acting as caretaker. The applicant's wife and her associates began occupying the applicant's property and selling their belongings and assets.
·    The applicant returned to Fiji in October 2023. He reported the incident to the o the police who were more interested in giving some excuse and appeasing him, but nothing was done.
·    Emboldened by the police inaction the illegal occupants /associates of the wife's boyfriend kidnapped him and took signatures on some documents to transfer the title to the property in their name
·    The applicant's estranged wife is native Fijian, and from an influential family. Her associates are also native Fijian. The applicant is a Fijian citizen of Indian ethnicity. The authorities are comprised of native Fijians, who do not take action against other native Fijians, and will side against people of Indian ethnicity.
·    The applicant complained about the kidnap, unlawful confinement, violence and forceful execution of the documents to the police at the end of October 2023 but the police never took cognizance of his complaint.
·    The applicant is unable to return to Fiji, because his estranged wife and her associates have seized the applicant's property, and threatened to harm or kill the applicant if they return.
·    If the applicant returns to Fiji he will be assaulted, kidnapped or killed by his estranged wife and her associates, or other native Fijians in their network. The authorities will not provide them with protection, because the applicant is of Indian ethnicity.
At a Tribunal hearing the applicant gave evidence to the Tribunal. He was born in [Town 1] on [Date]. He completed [Certificate] in [Institution] in Suva.
The applicant has an elder sister in [Town 2] and his parents are deceased. His brother is in Australia and his other sister in [Country]. He went to work for a number of companies before starting his own [business] in [Town 3] on his wife’s piece of land.
He helped his wife to get an education when they were living together, and he married his wife on [Date].
His wife’s family owned the land, he was in the process of having a lease registered from his wife’s clan to him and his wife. He did not have a lawyer acting as it was not a difficult job. He went to land office and they took time to process it. He had commenced building and working on the land in 2019. He was paying rent to the clan directly $400 per month. It was empty land and he built a house. It took him almost one year.
His wife was there in [Town 3] and she later worked in [another job] when the [business building] was finished. She moved to Canberra in 2023 to work and he came over in July 2023. He closed business when he came to Australia first time. He told all the customers. He closed business temporarily and did not re-open the business.
He went to see his wife for 4 days. She returned to Fiji in August 2023, and he found out about her return on [Social media]. She returned to Australia and she called him to pick her up at airport and he drove her to Canberra, staying with her 4 days. He had problems with her and she called his brother to pick him up. He did not have much contact after that. He went to Fiji [in] October 2023 and unbeknown to him, she went back the same day but on a different plane. He went back to Fiji for almost a month.
On his arrival in Fiji the applicant went back to their home, he could not get into his house until that evening as his key was missing. His wife checked into a hotel with his ex-friend, [Mr C]. He was shocked and went back home. There were a few vehicles in the [business] so his ex-friend and family came and took one vehicle registered in his wife’s name and they threatened him. They started taking his belongings from the home and the police said they belonged to his wife and they could not do anything. He tried to get help from the police so they were threatening him all the time and were trying to surround his home. When his brother found out he came from Australia and stayed with him and he could not stay in the house. When he was in Australia on his first visit, [Mr C] with his brothers occupied his house, they moved out when he came back. He had been in his house for a few days and within 2 days his wife’s family behaved differently. [Mr C] is also from the same village. He was him with a stick on his feet. He fell down and they ran away. After 4 days he moved out of the house and went to [Town 4].
He stayed in [Town 4] for 2 weeks and then returned to the house because all his belongings were there. They took lots of things from the house but they were not staying there. As soon as they see his car, they start roaming around and threatening him they would harm him. He did not want to stay in the house and went to his sister’s house. He returned [in] November 2023.
He went to [Town 3] police and also local police station near his house. I asked the applicant if any arrangements were made with the clan if he wanted to move off the land what would happen to his house and [business building]. He said that the transfer never finished.
I asked if he went to see a lawyer to deal with the issues and he said that he went to legal aid and they said the police did not give a report so could do nothing. He said he could not make up his mind what to do. I discussed with the applicant that there were 3 issues, the criminal action, the civil action regarding the land transfer and the divorce proceedings. He did not see a lawyer about land/divorce proceedings.
I asked him what he fears about returning, and he said that police did not help him out and being native they have more hold with the authorities. [Mr C] can catch him.
I asked the applicant if he could move to another place especially as they had the house and he said that they would not leave him alone. They are threatening him that if they see him anywhere they will kill him. He said that they visited his sister’s house. They also smashed the glass of his vehicles. He sold all his vehicles that were in his own name and he quickly wanted to wrap up, they took all his tools.
I put to the applicant that he can open up a business elsewhere or get a job and he said he fears for his life and they would kill him.
I put to the applicant that the Fijian 2013 Constitution prohibits discrimination based on race. Indo-Fijians face a low level of societal discrimination and that they have historically been mistreated at times of political instability. Fiji Police Force maintains internal security and the Republic of Fiji Military Forces (RFMF) are responsible for external security, with some domestic security responsibilities in specific circumstances. Both report to the Ministry of Defence, National Security and Policing and civilian authorities maintain effective control over the security forces.[1]
[1] US Country Reports on Human Rights Practices for 2021 - Fiji', 12 April 2022
In 2022 DFAT reported the Fiji police as, overall, having ‘the capacity to protect individuals from societal harassment, discrimination and violence’. DFAT also noted that in relation to carrying out their day to day role the police are generally effective. The Fiji Police Force is generally a professional, albeit under-resourced, law enforcement organisation. However, there have been credible allegations of police involvement abuse and assaults and impunity is a problem in cases with political implications.
The 2023 United States Department of State (USDOS) report states that the Fijian police Internal Affairs unit investigates complaints of police misconduct. There is an Ombudsman. Further, low-profile and non-political matters, the judicial system is generally capable of providing effective state protection[2]. The applicant did not comment on the independent evidence.
[2] DFAT Country Information Report Fiji 20 May 2022
I asked the applicant if he complained about the police not taking action and he said he went to legal aid they said we cannot help as he did not have a police report. He said he had a police report but they said they could not help him out. They said he would not get Domestic Violence Order as his wife is part of house. Legal aid would not go to court. He never used a lawyer. He had lost his belongings and his tools but was able to sell his vehicles.
I drew to the applicant’s attention inconsistencies in his PVA. I put to him that he was not kidnapped. He said he went to [Office] and when he came out, these people were waiting in a group, he returned to the office and called his brother who came and got him.
I put to the applicant that nobody forced him to transfer title to the property into their name. He said the lease documents are still in his name. His wife called him in Sydney when he came and she has asked him to sign an authorisation for her to transfer the lease into her name. He said he needed some time to think about it.
The applicant said that before this happened he was not aware of the police and the legal system. He does not have any problem with anything but since this problem he only has fear. He also said that he was threatened on 14 October 2023 and on 15 October 2023, he reported damage to the house.
The applicant’s brother [Mr A] gave evidence to the Tribunal. He stated that on 21 October 2023 he was taking applicant to [Town 3] and they found someone else driving his vehicle and they followed the vehicle and pulled him up. His brother’s tools were in the vehicle. The car was in his wife’s name. He asked them to leave the vehicle, they left and his brother took the vehicle. On 22 October they tried to hassle his brother with a knife. They backed off and warned his brother if they see him in the area, they would harm him. His brother’s tv was destroyed and tools were stolen. His brother bought a bag of cement to do restoration. They robbed his house and [business building]. He left Fiji [in] October 2023. His brother came to Australia [in] November. He had a visa to come back. He did not go to the police with his brother but told his brother to go to the police. Police said they cannot do much as his wife gave them access. Police are related to the man harassing his brother. When put that he could have reported to another police station, the witness agreed.
The applicant’s uncle [Mr B] also gave evidence to the Tribunal stating that he was in car with [Mr A] and the applicant when they found someone driving the applicant’s car.
The applicant submitted to the Tribunal, at hearing, the following documents:
·Marriage Certificate between the applicant and [Ms D] dob [Date]
·Fiji Police Force Report – [Town 3] Police Station dated [October] 2023 certifying applicant’s report on 15 October 2023 was classified as trivial, ‘no further action needed after suspect warned’.
INDEPENDANT EVIDENCE
By way of background[3] about a third of Fiji’s 330 islands are inhabited. According to the CIA World Factbook, the population is about 940,000. The two main islands are Viti Levu, where the capital Suva and tourist city of Nadi are located, and Vanua Levu. Half the population lives on Viti Levu and 57% of the population lives in cities. Cities are relatively small; Suva, the largest city and capital, has fewer than 200,000 residents. The population is relatively young, more than 80% of people are under 54 years of age.
[3] DFAT Country Report Fiji 2022
The World Bank defines Fiji as an upper-middle income country. Fiji is one of the largest economies in the Pacific region, but about a quarter of the size of the next largest, Papua New Guinea. Its per capita gross domestic product (GDP) is much higher than most Pacific neighbours’.
According to DFAT’s most recent report – Fiji 20 May 2022, Fiji’s 2013 Constitution contains a Bill of Rights. The Constitution specifically protects the rights to life, liberty, equality and freedom from discrimination, as well as the freedom of movement, assembly, expression and religious belief. Alleged breaches of the Bill of Rights can be pursued in the High Court
The Republic of Fiji Military Forces[4] (RFMF) play an influential role in Fijian society. They have played a central role in Fiji’s recent history and Prime Minister Bainimarama was a RFMF Commander at the time of the 2006 coup. The RFMF have a visible presence. Media reporting on RFMF activities is common and having served in the military or having a family member who did can be a source of pride for many Fijians. The military often plays a role in disaster relief efforts. During the COVID-19 crisis the military was active in enforcing quarantine regulations before the police took on that role. Fijian police are unarmed and, in cases where weapons are required, the military may assist police.
[4] DFAT Country Report Fiji 20 May 2022
Although the military is an active and visible presence in Fiji they are unlikely to hinder the day-to-day activities of most Fijians. The various coups d’état are in the living memory of many Fijians and this contributes to fear and suspicion of the army in some quarters, but DFAT assesses that these fears are not factors in the day-to-day lives of most Fijians. Conversely, many Fijians hold the RFMF in high esteem because of their disaster relief efforts and strong traditions of service within families, for example. There is no conscription in Fiji: people join the military voluntarily.
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 Policing is conducted on a community policing model and police are generally actively engaged with the communities they serve.
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. In low-profile and non-political matters, the judicial system is generally capable of providing effective state protection.
Eighty four percent of Fiji’s total land area are held by the indigenous Fijians with these lands comprising customary lands[5]. The balance is freehold land and state or government owned lands, much of which has developed into the best urban, commercial, industrial and agricultural lands (Rakai, 1993). The dual tenure system has been highlighted as one of the contributing factors to the economic disparity that exists in Fiji today and as a contributing factor in land disputes. Outright ownership makes this the most desirable type of land for non-residents. Freehold Land makes up approximately 8 percent of all land in Fiji.
[5]
The most common legal problems in the daily lives of the people of Fiji are neighbourhood disputes, crimes, land disputes, domestic violence and family problems[6]. Compared to social networks and communal mechanisms, formal justice institutions are less frequently used. The demand for justice in Fiji is overwhelming and can also be found outside of the courts. The supply of legal services and specifically legal aid is not keeping pace with demand.
[6] Justice-Needs-and-Satisfaction-in-Fiji-Report.pdf (undp.org)

In addition to the Police, other avenues available are Legal Aid Commission, Roko Tui (or other public authority), iTaukei Land Trust Board, Private Lawyers, Turaga ni koro Village Council, Qase (Traditional leaders), Church Leaders, iTaukei Land and Fisheries Commission, Trade Unions, NGOs, Human Rights and Anti-discrimination Commission. Fiji has an Ombudsman[7].
[7] The-Diversified-or-Strict-Role-of-an-Ombudsman-A-Comparison-in-the-Roles-of-the-Ombudsman-in-Vanuatu-and-Fiji-Rene-Lal.pdf (usp.ac.fj)
REASONS AND FINDINGS
On the basis of his Fijian passport, I accept that the applicant is a national of Fiji and not a national or citizen of any other country. I accept that he does not have a right to enter and reside in any country other than Fiji. Therefore, I find that the applicant is not excluded from Australia's protection by subsection 36(3) of the Act. I also find that Fiji is the applicant’s “receiving country” for the purposes of s.36(2)(aa).
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. Similarly, that the 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.
The assessment of the applicant’s credibility and reliability as a witness is a matter of central importance to my consideration and determination of the application. I accept that there may be errors, omissions or misunderstandings that cannot be automatically attributed to an applicant's credibility or the applicant not being truthful. I am not required to accept uncritically any, and all claims made, by an applicant. In assessing credibility, I have also been guided by the Tribunal’s 'Guidance on the Assessment of Credibility', 'Guidance on Vulnerable Persons' and ‘Guidelines on Gender’. I am also mindful that in the process of asking further questions and commenting on those questions during the process of assessing an applicant’s claims may mean that it is feasible an applicant will provide new information when he is asked to respond to or provide more details. I am also mindful that there can be interpreting errors, cultural differences and plausible explanations for inconsistencies other than deliberate falsehoods. I am also mindful that applicants who suffer from nervousness, anxiety, depression and or post-traumatic stress disorder may have difficulty remembering and recounting aspects of their claims. In particular they may block out or neglect to mention upsetting or traumatic experiences. I am also mindful that just because one part of an applicant’s claim is exaggerated does not mean that the entirety of the claim is dishonest.
The applicant is an ethnic Indo-Fijian of the Hindu faith. Fijians comprise approximately 57 per cent of the Fijian population, and Indo-Fijians 38 per cent. Tension has traditionally existed between the indigenous Fijian population, who are overwhelmingly Methodist Christian, and the ethnic Indo-Fijian population, who are primarily Hindu.
The applicant completed a [Certificate] in Fiji. He only has one sister living in Fiji and his brother lives in Australia. He married a native Fijian on [Date] after he helped her complete her education. He started his own [business] in [Town 3], on land owned by his wife’s family and he was building his house and paying rent to his wife’s clan/family.
I accept that the applicant and his wife are now estranged and she lives in Australia. I do not accept that the applicant was entirely truthful in his PV application. Whilst he claimed in his PV that he left his [business] in the care of a friend who was subsequently chased off the property by his wife and her boyfriend, he gave evidence to the Tribunal at hearing that he closed his business in July 2023, when he came to Australia. Therefore, I find that the applicant had closed his business before coming to Australia. I do not accept, as claimed in his PV, that when his wife returned to Fiji in August 2023 that with her boyfriend and his associates she seized and ransacked the applicant's business and chased away his friend as the applicant had himself closed his business and notified his customers.
I accept the applicant’s evidence that in October 2023 he and his wife returned to Fiji on different planes. In regard to the applicant’s house, I accept that while he was in Australia, [Mr C] with his brothers, occupied his house, but they moved out when he came back. I accept that on his arrival in Fiji the applicant went back to their home, he could not get into his house until that evening as his key was missing. His wife checked into a hotel with his ex-friend, [Mr C]. He was shocked and went back home.
I accept that a dispute arose between [Mr C], his family and the applicant, over a vehicle registered in the applicant wife’s name. I accept that the applicant was threatened, hit with a stick and his belongings were taken from the house. After 4 days, the applicant moved out of the house and went to [Town 4]. He stayed in [Town 4] for 2 weeks and then returned to the house because all his belongings were there. [Mr C] and his family took lots of things from the house but they were not staying there. As soon as they saw his car, they started roaming around and they threatened him they would harm him. Whilst I accept that the applicant was verbally abused and physically harmed I do not accept that this amounts to serious harm as required by s.5J(5).
Further, the applicant’s car was retrieved when he, his brother and his uncle found his vehicle with his tools. Despite losing his belongings, the applicant was able to sell all vehicles in his name, a claim not made in his PV. When put to the applicant that he was not kidnapped, as claimed, he said that when he came out of the [Office] these people were waiting in a group, so his brother came and got him. I am satisfied the applicant sold all vehicles registered in his name and obtained the proceeds of those sales.
I find his evidence regarding lodging a complaint and/or taking any legal action regarding using and damaging his house and his belongings to be vague and not based on compelling evidence. The applicant claimed that Legal Aid would do nothing as the police did not give a report and he then claimed that he could not make up his mind.
The applicant claimed in his PV that he was coerced into signing his property to his wife and her associates whereas at the Tribunal hearing he initially said the lease transfer was never completed. When put to him, he then said that the lease documents are still in his name and his wife called him in Sydney and she asked him to sign an authorisation for her to transfer the lease into her name. I accept as plausible that the applicant lodged a lease application, it was never granted and now the applicant’s wife seeks that lease application to be transferred to her. I accept the applicant has not made up his mind what to do. Therefore I find that the applicant was not coerced into signing his property to his wife and her associates.
I find that whilst the wife of the applicant and [Mr C] with his family took the applicant’s belongings, damaged the house, hit the applicant and threatened the applicant he was able to retrieve his vehicles and sell them and obtain the sale proceeds. I do not accept that the harm the applicant suffered amounted to serious harm as required by S.5J(5).
Initially the applicant claimed in his PV that he reported the caretaker of his business being chased away and the loss of his belongings to the authorities, but nothing was done. As the applicant had closed his business I do not accept that he reported this to the police and nothing was done. At the Tribunal hearing the applicant said that he was threatened on 14 October 2023 and on 15 October 2023 he reported damage to the house. Even giving him the benefit of the doubt and accepting that he reported the loss of his belongings and damage to the house to the police, the police report, dated 15 October 2023, certified that the applicant’s report on 15 October 2023 was classified as trivial, ‘no further action needed after suspect warned’.
Whilst I accept that the police treated the applicant’s complaints as trivial and Legal Aid would not action it, the applicant is able to utilise private lawyers and when asked if he obtained assistance from a lawyer regarding his legal problems, he said that he only went to Legal Aid.
The applicant left Fiji legally, with a passport issued in his own name.
I am satisfied that the applicant had no adverse profile or an imputed adverse profile in Fiji and I am satisfied that the applicant did not flee Fiji fearing serious harm for any of the reasons enumerated in s.5J(1)(a).
I am required to consider whether the applicant will suffer serious harm for any reason enumerated in s.5J(1)(a) on his return to Fiji within a reasonably foreseeable future.
The applicant, a Hindu Indo-Fijian, claimed that he fears returning because the police did not help him and native Fijians have more hold with authorities.
DFAT states that race is an important factor in Fijian society, but ongoing government integration efforts are having some effect. Some low-level social discrimination continues, with the use of racist stereotypes common among both groups. The Government has taken significant steps to de-segregate the community in day-to-day life. Schools were required to stop calling themselves ‘Indian’ or ‘Fijian’, and the 2013 Constitution requires Hindi to be taught in primary schools. Diwali and the Prophet Mohammed’s Birthday are both national public holidays alongside Christian holidays like Christmas and Easter. The Public Order Act was amended in 2012 to prohibit incitement of racial violence, and the 2013 Constitution prohibits discrimination based on race or ethnicity and applies to all ‘Fijians’ regardless of race. DFAT states that Indo-Fijians face a low level of societal discrimination and there is no evidence of official discrimination.
The applicant did not claim to suffer harm for his Hindu religion. DFAT[8] stated that there have been instances of tensions between indigenous Fijians and Indo-Fijians and it is not clear whether these are motivated by religion, race or both. A series of vandalism and robbery events at Hindu temples was recorded in 2018 and received significant media attention. According to media reports, police took the incidents seriously and political figures condemned the attacks. The motive for the crimes is not clear – it may have been opportunistic, or factionally or racially motivated.
[8] DFAT Country Report FIJI 2022
DFAT[9] states that 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. 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. The Legal Aid Commission may provide legal assistance to indigent defendants. The Commission is recognised under the Constitution and is state funded. The Public Order Act was amended in 2012 to prohibit incitement of racial violence, and the 2013 Constitution prohibits discrimination based on race or ethnicity and applies to all ‘Fijians’ regardless of race.
[9] DFAT Country Report Fiji 20 May 2022
I put to the applicant that DFAT[10] reported the Fiji police as, overall, having ‘the capacity to protect individuals from societal harassment, discrimination and violence’. DFAT also noted that in relation to carrying out their day to day role the police are generally effective. The Fiji Police Force is generally a professional, albeit under-resourced, law enforcement organisation. However, there have been credible allegations of police involvement abuse and assaults and impunity is a problem in cases with political implications.
[10] DFAT Country Information Report Fiji 20 May 2022
When put to the applicant the independent evidence that the Fijian Police Internal Affairs unit investigates complaints of police misconduct, there is an Ombudsman and in low-profile and non-political matters, the judicial system is generally capable of providing effective state protection[11], the applicant did not comment on the independent evidence. I rely on DFAT assessments regarding police protection for Fijian residents and citizens. I am satisfied that that effective protection measures are available to the applicant in Fiji.
[11] DFAT Country Information Report Fiji 20 May 2022
Whilst the applicant claims if he were to return, [Mr C], his wife, their family and their associates could threaten, harm him and/or kill him, I am satisfied that the applicant is able to access protection in Fiji, the protection is durable and consists of appropriate criminal law, a reasonably effective police force and an impartial judicial system. Therefore I find there is not a real chance the applicant will suffer serious harm directed at him by the applicant’s wife, her family, clan, [Mr C] and/or family and their associates, within the foreseeable future on return to Fiji.
I accept that land tenure remained highly sensitive and politicized. According to the US State Department Human Rights Report 2021 Fiji, ethnic Fijians communally held approximately 87 percent of all land, the government held 4 percent, and the remainder was freehold land held by private individuals or companies. The applicant no longer has a house or his [business] but the applicant is not prevented from leasing the land as he had done, previously. I am not satisfied that therefore he would suffer serious harm as enumerated by s5J(5) in regard to owning land.
The law prohibits employment discrimination based on ethnic origin, colour, place of origin, gender, sexual orientation, birth, primary language, economic status, age, disability, HIV/AIDS status, social class, marital status (including living in a relationship in the nature of a marriage), employment status, family status, opinion, religion, or belief. The applicant was able to work in Fiji and he also owned a business. I am satisfied that on his return to Fiji he is able to work.
I have considered the applicant’s claims singularly and cumulatively. I am not satisfied that there is a real chance the applicant will suffer serious harm for a refugee reason, if the applicant returns to Fiji within a reasonably foreseeable future.
Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).
I must also consider whether there is a real risk the applicant will suffer significant harm on his return to Fiji within a reasonably foreseeable future.
The applicant is a Hindu ethno-Fijian Indian. The applicant had no adverse profile in Fiji prior to his departure to Australia. The applicant did not suffer serious harm in Fiji.
The applicant’s claims for complementary protection are the same as those put forward in relation to his refugee claims.
The Department's Complementary Protection Guidelines state that there must be a real and personal risk to the individual, saying that where the threat is from non-state actors, decision-makers should be satisfied that there are 'extremely widespread conditions of violence, coupled with a particular risk to the individual in question' before reaching a conclusion that there is a real risk that an applicant will be arbitrarily deprived of his or her life.
There is no evidence that there is a widespread condition of violence in Fiji and I do not accept that there is a real risk or a real chance of harm from non-state actors.
DFAT[12] assesses that policing is conducted on a community policing model and police are generally actively engaged with the communities they serve. Police protection is available but not consistently. I am satisfied that were the applicant to be attacked or harmed, Fiji has an effective police force and an impartial judicial system. The police Ethical Standards Unit[13] is responsible for investigating complaints of police misconduct. Fiji Human Rights and Anti-Discrimination Commission (FHRADC) can investigate complaints about police.
[12] DFAT Country Information Report Fiji 20 May 2022
[13] US State Department Fiji 2020 Human Rights Report
Therefore, I am not satisfied that there is a real risk that the applicant would suffer significant harm, within a reasonably foreseeable future, as a Hindu ethnic Indo-Fijian, if he returns to Fiji.
Having considered all of the applicant’s claims, individually and cumulatively, I am not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Fiji now or in the reasonably foreseeable future.
CONCLUSIONS
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 not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Lilly Mojsin
Member

ANNEXURE A
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.

If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’).
The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
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 3904

30 May 2024

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