2405229 (Refugee)
[2025] ARTA 2014
•25 July 2025
2405229 (REFUGEE) [2025] ARTA 2014 (25 JULY 2025)
DECISION AND
REASONS FOR DECISION
Representative: Mr Jyoti N Bharati
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2405229
Tribunal:General Member S Waring
Date:25 July 2025
Place:Brisbane
Decision:The Tribunal affirms the decision under review.
Statement made on 25 July 2025 at 5:22pm
CATCHWORDS
REFUGEE – protection visa – Fiji – race – Indian Fijian – imputed political opinion – Fiji First Party activist – employment – fear of robbery – fear of detention – threats by drug smugglers – state protection – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 367, 499
Migration Regulations 1994, Schedule 2CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 March 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 national of Fiji, applied for the visa on 17 February 2024. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee or the complementary protection criteria in s36(2)(a) and s36(2)(aa) of the Act.
On 18 March 2024 the applicant lodged an application for review with the former Administrative Appeals Tribunal (the AAT).
The Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act) gives the Administrative Review Tribunal (the Tribunal) the authority to continue and finalise any aspect of the review not already completed by the AAT.
The applicant appeared before the Tribunal on 26 May 2025 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi (Fiji) and English languages.
The applicant was represented by Mr Bharati in relation to the review. Mr Bharati did not appear at the hearing.
BACKGROUND
[The applicant] is now [age] years-of-age having been born in [Province 1], Fiji. He arrived in Australia [in] January 2024. He is of Fijian Indian ethnicity and follows the Hindu religion.
[The applicant’s] secondary studies were completed in [specified year] and he worked as [an occupation 1] between 1990 and 2013. Upon arriving in Australia, he settled in [Suburb 1] in NSW. He has since moved to [Town 1] in QLD.
Evidence before the Department and the Tribunal
The applicant was not offered an interview by the Department. As such, the evidence taken into account by the decision-making delegate included the applicant’s:
·protection visa application together with a bundle of supporting documents provided to the Department on 17 February 2024:
- 16 March 2021 “The Battle for Identity: Fijian-Indians Fight to be Recognised as Pasifika, not Asians .” Media article by Lincoln Tan
- 18 May 2023 “Fiji’s 1987 Coup: Why Did Prime Minister Rabuka Apologise to the Indo-Fijian Community?” Media article by Alind Chauhan
- 3 January 2023 “Dramatic Change, Severe Obstacles: Fiji Enters 2023 with a New Government, but Many of the Same Problems.” Media article by Jon Fraenkel
- 14 October 2004 “Discrimination Against Fiji Indians Continuing: Chaudhry.” Media article (incomplete) published by Indo-Asian news service
- 22 June 2000 “Race, Resentment Fuel Attacks on Indians in Fiji, Forcing Many to Flee.” Media article by Mitchell Landsberg
·13 February 2024 statement (which accompanied the protection visa application)
·passport and other personal identifiers sighted by the Department as part of an identification test.
In addition to the above documents, the applicant filed a pre-hearing submission on 17 May 2025 followed (on 19 May 2025) by a bundle of extrinsic materials including:
·20 February 2008 “Committee On Elimination Of Racial Discrimination Considers Report Fiji.” press release (“bundle document 1”)
·17 October 2006 “Situation of Indo-Fijians and Their Treatment By Indigenous Fijians; Police Reaction To Reports Of Racially-Motivated Crimes Against Indo-Fijians; Availability Of State Protection For Indo-Fijians (2002-2006)” Research Directorate, Immigration and Refugee Board of Canada, Ottawa Fiji. (“bundle document 2”)
·2008 published article “Racial Discrimination in Fiji” by Swastika Narayan in the Journal of South Pacific law (“bundle document pp 25 - 32”)
·September 1955 “Fijians and Fiji-Indians: A Culture-Contact problem in the South Pacific.” journal article by A.C Cato (“bundle document pp 33 - 35”)
·28 March 2017 “ Indo-Fijians and Fiji’s Coup Culture.” Article by Grant Wyeth published in The Diplomat Oceania (“bundle document pp 36 - 39”)
Further evidence before the Tribunal included:
·the applicant’s statements at hearing on 26 May 2025
·a movement record of the applicant’s entry into Australia.
The totality of evidence before the Tribunal is discussed and examined below.
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
The Act prescribes, in s367A, how the Tribunal is to deal with new claims or evidence in review of reviewable protection decisions:
(1)This section applies if, in relation to an application for review of a reviewable protection decision (the primary decision), the applicant:
(a) raises a claim that was not raised before the primary decision was made; or
(b)presents evidence in the application that was not presented before the primary decision was made.
(2)In making a decision on the application, the ART is to draw an inference unfavourable to the credibility of the claim or evidence if the ART is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.
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.
EVIDENCE AT HEARING
The applicant informed the Tribunal that he has sound competency with English language. He collaborated with his solicitor when preparing the protection visa application. He explained his circumstances to his solicitor and read the application prior to its submission. He had read and understood the pre-hearing submissions provided to the Tribunal in May 2025.
The applicant has [number of siblings] ([number] now deceased). His parents have passed away. His father had been a sugar cane father who also ran a small shop. The applicant told the Tribunal he married in 1987 and welcomed [number] children with his first wife.
[The applicant] re-partnered and moved to Suva in 2000 where he was doing odd jobs before commencing work as [an occupation 1]. The applicant explained that he telephones his wife every second day – they have a son together and are concerned about his safety on the bus when he travels to and from his studies. [The applicant] said he is fearful for his wife and son because of the “Indian tribal issue”. He believes it is not safe in Fiji so his son cannot travel at night.
The Tribunal enquired with the applicant whether there have been incidences when his family members have been harmed. He responded that this has not happened yet but “If you travel alone by yourself, you're going to get robbed or maybe you get killed as well if you don't have anything on you to give them and if you do get robbed or anything, and if you go to police and report it to the police, the incident, they will ask you for the witnesses and there's no witnesses.”
The applicant stated that he witnessed an altercation while walking through a public place in the city when an argument led to a fight breaking out between an indigenous Fijian and an Indo-Fijian. The applicant stated that this was an isolated incident where he saw a fight on the street. He believed there was a racial element to the altercation stating “original Fijians, they always, if you go into the market, they will beg for the money. And if you don't give them, or if you're having a juice or drinking a juice in the market or something and they come and ask you to give it to them. And if you deny, they will start fighting with you or try to hurt you.”
[The applicant] explained that he is very concerned about the general level of crime in Fiji especially involving indigenous Fijians who will “really fight with you.” He stated that the victims are mostly indo-Fijians being targeted by indigenous Fijians.
The Tribunal heard of an occasion when, without his knowledge, indigenous Fijians used him and his [work vehicle] to ‘smuggle’ cannabis or marijuana. After he dropped them off at their destination he reported them to the Police. The applicant stated that he did not sign a formal statement or appear in court in relation to this matter.
The applicant believes these indigenous Fijians (drug smugglers) became aware that he had reported them. He believes this because they were arrested and because of the “hand gesture they did to me that they are going to harm me.”
Another incident recounted by the applicant occurred when his [work vehicle] was stopped by indigenous Fijians. He and his passengers were robbed. The applicant could not identify the robbers because “unfortunately they all look alike and they cover their faces.” The applicant stated that there were 2 or 3 similar incidences when he was driving his [work vehicle] but he did not make reports to Police because he knew witnesses would be required.
The applicant recounted an incident in 2022 when he was [working] for political candidates. He stated that he was physically hurt, but did not visit the hospital, when assailants snatched his hair and tried to punch his face. He managed to survive the punch because it landed on his shoulder not his fact. He did not know why he was targeted but thought perhaps the assailants thought he was a big supporter of the political candidates or perhaps it was just part of the protest happening at the time.
The Tribunal raised with the applicant that his pre-hearing submission refers to violent protests on or about 19 May 2000 and indicates he was harmed while actively participating in the protests. [The applicant] stated that he could not exactly recall details of this because it was a very long time ago.
While he stated that many incidents occurred during his 24 years [in occupation 1], the applicant stated that “the main one was which makes me worried is the drug related one where… they told me that whenever you're going to come back, they will, they are going to, you know, they're going to see me or they're going to, they're going to follow me… even when I was in Fiji, they actually threatened me or they warned me that they are going to finish me.”
The Tribunal queried the timing of the threats made by the drug smugglers. The applicant responded that the threats were made in 2021 or 2022 when the offenders were out on bail.
The Applicant clarified that there are 2 main sources of his fear in returning to Fiji:
·the general rate of crime
·the threats made by the drug smugglers.
The applicant stated that he is in touch with friends in Fiji who [are occupation 1s] there. They have told him that the drug smugglers are trying to locate him. He believes they were imprisoned for the offences he reported to Police. Since their release he believes they have been asking around about him.
When the Tribunal revisited the applicant’s claim regarding his fear of the drug smugglers, the applicant stated that when he was in Fiji they contacted him directly by calling him and saying “that they're going to see me and you know, we'll do this and we'll do that.” The Tribunal queried how those threatening him came to have the applicant’s phone number. [The applicant] then corrected himself saying that this threat had been directed at him when he was travelling slowly in his [work vehicle] in the city. They said “watch out” to [the applicant] (which he perceived as a threat) but they did not harm him because, in his [work vehicle], he “could easily speed up and run away”.
The applicant stated that he could not move elsewhere in Fiji to avoid harm from the drug smugglers because they travel a lot and have connections in different cities. [The applicant] said that he requested police protection when he was threatened but the Police informed him they could not act because nothing had yet happened to him.
The Tribunal drew the applicant’s attention to his protection visa application which did not disclose his concerns about the drug smugglers. The applicant stated that, at the time he was conferring with his solicitor about the application “actually I forgot to mention it.” The Tribunal observed that the protection application was made only one month after [the applicant] arrived in Australia and enquired why his fear of the drug smugglers would have been forgotten in only a month. [The applicant] replied “Yes, I made a big mistake where I didn't mention that thing to my lawyer.”
The Tribunal drew the applicant’s attention to the pre-hearing submissions provided in May 2025 and enquired why the issue of drug smugglers was not referred to in those submissions. The applicant replied “So the issue is I know because I forgot once in the beginning and I thought if I tell you now in my recent submission, it may look like maybe I'm telling you the wrong story or maybe I'm making [up] a story now.”
[The applicant] stated his belief that indigenous Fijians are offered better job opportunities in Fiji than are available to Indo-Fijians. On one occasion he believed he was given less favourable working hours and was unable to live on the wages he could earn doing odd jobs only 2 or 3 days a week. He stated that indigenous people were working full time for that employer.
The applicant stated that there is no freedom of speech at all in Fiji. He believes that “even if you do try to have some voice or something, if you try to say [it] either you'd be arrested by the police or you need to get permission from the district officer, permission from them, which you will never get anyway.”
The applicant stated that he hopes to be granted a protection visa so he can have a better lifestyle and a better life in Australia.
Claims and evidence before the delegate
In his protection visa application and accompanying statement (of 13 February 2024), [the applicant] claims that, as an ethnic Indian Fijian, he fears harm in Fiji from Indigenous Fijians due to his ethnicity.
The applicant claimed to have become a target of indigenous Fijians because of his race (and indirectly because of his support for the Labour Party which was dominated by ethnic Indian leaders).
In relation to his past political activity the applicant’s 2024 statement (considered by the delegate) conceded that he has no evidence of his political participation in the 2006 election and stated that between 2006 and 2013 (when inter-racial tensions became more violent in Fiji) he kept his political profile very low “because of rising fear” .
The applicant claimed to have:
·joined the Fiji First Party and actively participated in its 2022 election campaign by transporting Indo-Fijian party members during the campaign
·taken part in political rallies organised by Indo-Fijian political leaders
·been racially abused and threatened by local Fijians who “hate ethnic Indians”
·assaulted by local Fijians several times including:
- an incident when he was on a journey in his [work vehicle] to Suva from Nadi. Local police were reluctant to take any action despite some local Fijians checking every car or bus, assaulting people and robbing their goods
- on [a day in] December 2022 when he was travelling with FFP leaders and a group of indigenous Fijians (aligned with SODELPA) stopped his car, abused and threatened him and his passengers
- on [a day in] May 2000 (when a political protest turned into a violent demonstration everywhere in Fiji) local Fijians were blocking many important roads and checking every car on the road. The applicant was beaten and assaulted by them when he was driving his [work vehicle]
·felt helpless and lived in an environment of fear in Fiji. Particularly because local authorities are dominated by the indigenous Fijians
·been unable to seek help from authorities in Fiji for fear of reprisals by local Fijians. Particularly because he had become known to local Fijians from transporting Indo-Fijian political leaders in his [work vehicle]
·been denied equality in healthcare, education employment opportunities, protection (from racial violence) and freedom of expression in Fiji
·left Fiji because he feels unsafe and insecure there as there is no genuine protection for his life.
Claims made to the Tribunal
Refugee claims in Pre-hearing submission
In the submission provided on 17 May 2025, the applicant states that as a victim of racial discrimination from Fiji, he qualifies as a ‘refugee’ under rule of s 36(2) (a) of the Migration Act because his ‘well-founded fear of persecution’ is due to his race, religion, nationality, membership of a particular social group or political opinion.
The applicant relies on the above-listed extrinsic materials submitted prior to the hearing documenting (what he characterises as) the actual practice of discrimination by Indigenous Fijians towards lndo-Fijians in Fiji. Based on these materials, the applicant asserts that:
·he will be harassed and harmed by Indigenous Fijians because he is lndo-Fijian
·official discrimination is prevalent against lndo- Fijians where employment, education, health care and other government services are concerned
·discrimination against lndo-Fijian in Fiji is done "extensively" not "little" as the delegate and DFAT believe.
Complementary protection claims in Pre-hearing submission
The applicant states that “if he is removed to Fiji there is a real risk [he] will suffer significant harm as defined in s 36 (2)(aa) of the Act.” The applicant believes that “there is no cure to change the attitude of Indigenous Fijians towards lndo-Fijians. The racial discrimination occurs in many ways In Fiji. It Is beyond repair. The fear of persecution to lndo-Fijian is real.”
Complementary Protection claims (considered below) detailed in the pre-hearing submission emphasise that the Applicant believes that he would face a real chance of persecution on account of being lndo-Fijian if he is compelled to return to Fiji (in part) because there is no protection there from violent attacks, torture, harassments, burning of houses, and inhumane treatment by the Indigenous Fijians in Fiji. The applicant asks the Tribunal to consider areas of racial discrimination where lndo-Fijians are facing serious harm which (he says) were overlooked or not taken into account by the delegate.
In support of the pre-hearing claims that discrimination against lndo-Fijians in Fiji occurs in many ways and occurs "extensively" not "little", the pre-hearing submission refers to supplementary evidence as follows (verbatim):
Document 1 : Press Releases . Committee on Elimination of Racial Discrimination considers Report of Fiji 20 February 2008
The Committee on Elimination of Racial Discrimination in its Report of Fiji had pointed many issues on which Fiji governments were reluctant to implementation of the provisions of the International Convention on the Elimination of all Forms of Racial Discrimination. CERD has raised doubts about implementation of efforts to eliminate racial discrimination in Fiji. Reports published 20 February 2008.
The Committee experts raised a number of concerns over Fiji's stance to maintain its reservation to the Convention; the policy not to prohibit racist organisations for fear of infringing on free speech: concept of "indigenous" as understood and used by the Government: present status of Fiji Human Rights Commission, which had associated itself with the military in recent coup; data on individuals in detention; concerns about the procedures for dealing with schools that had demonstrated discriminatory practicesessentially withdrawing public assistance without taking any further punitive steps.
Applicant argues that there is a clear sign of social and economic inequalities in Fiji.
The Delegate made opinion that there is not very big problem with social and economic equalities in Fiji between indigenous Fijian and Inda- Fijians.
The 1997 UNDP Report and 1996 Census clearly outlines social and economic inequalities in Fiji . The Governments did not resolve its racial differences by dealing with them honestly and opening and removing the inequities and inequalities which cause social and political tensions.
The Governments led by Indigenous Fijians were biased in allocating fund for developments where the Indian community live. In total there are 27 programs for Fijians and Rotumans and 19 that benefit Indians and minority communities.
The Governments failed to ensure the disadvantaged group (Inda- Fijian) to get maximum benefit from a social program without compromising other community group in the process.
Applicant claims that all of the Governments formed by the Indigenous Fijians promised and made the law to ensure that measures will be implemented which would lead to the maintenance of unequal separatist rights for different ethnic groups. It was promised that the ethnic communities concerned will be fully consulted before any special measure were put in place. But in reality, the Governments led by Indigenous Fijians did not give any importance to lndo-Fijian to take part in framing any policy for Governments.
More importantly, in area of Criminal law and the Courts, the Governments led by the Indigenous Fijians (iTauke) never gave importance of recording of statistic on prosecutions in order which could weigh the seriousness of the offence by testing the gravity of seditious intentions of the offender. Applicant believes that is one of the main reasons of repeating the offence by the Indigenous Fijians over lndo-Fijians which increased violent attacks on lndoFijians in Fiji.
Applicant believes that the main reason of leaving of the Country( Fiji) by lndo-Fijian on a mass scale is uncertain Land policy of Fiji. After expiring of lease, the lndo-Fijians of became home-less and economically devastated.
All of the evicted lndo-Fijians did not like live in uncertain policy for long in the racially discriminated society of Fiji. More than 100 thousands of Indo-Fijians left to settle in USA, Canada, Australia and other countries.
Applicant believes that the Delegate did not accounted above mentioned reasons before he made up his mind to conclude that the applicant does not fulfills the criteria of s 36 (2)(a) of the Migration Act and there is no racial discrimination and if the applicant will go back to Fiji he will not face any racial discrimination.
The racial discrimination in Fiji against lndo-Fijians has been recognised by the United Nations and the issue was highlighted everywhere in world media. It is a fact which cannot be denied by any means. The Delegate made opinion with closed eyes.
The Delegate used the limited information about the practice and the presence of racial discrimination in Fiji. The Delegate failed explore in detail before making his opinion .
Applicant believes that he was denied procedural fairness when assessment was done on a limited information on a important issue. The applicant was disadvantaged with the decision of the Delegate.
Document 2 UNHRC Report,[1] Media Reports[2] and Articles[3] [4] [5]
The applicant stated in his application that he and his whole family suffered for more than fifteen years from the harassment , torture and inhumane treatments by Indigenous Fijians in Fiji . He left Fiji because of fear of harm from Fijians. The fear of harm to the lndo-Fijians of Fiji from Indigenous Fijians is widey known to the entire world since 1987 Coup. In 1987 and 200 [sic] Indo- Fijian houses were burnt and innocent people including elected governments and ministers were assaulted and terrorised. lndo-Fijians felt discrimination in civil service jobs and scholarship. They suffered social trauma as emigration tore apart thousands of families. Even after the 2000 coups, lndo-Fijians were hurt when no SDL rebuked one lady Minister in their government who scoffed that Indians were “weed”.
Document 3: Evidence of Fear : Media Reports
Applicant believes there is no cure to change the attitude of Indigenous Fijians towards lndo- Fijians . The racial discrimination occurs in many ways In Fiji. It Is beyond repair. The fear of persecution to lndo-Fijian ls real. Applicant believe if he is removed to Fiji there is a real risk they will suffer significant harm as defined in s 36 (2)(aa) of the Act
Applicant appeals to the Tribunal to consider his case for Complementary Protection based on the above mentioned grounds.
[1] 20 February 2008 press release: Committee on Elimination of Racial Discrimination Considers Report Fiji
[2] 28 March 2017 (published article: The Diplomat Oceania) Grant Wyeth Indo-Fijians and Fiji’s Coup Culture
[3] 17 October 2006 research directorate, immigration and refugee Board of Canada, Ottawa Fiji: situation of Indo-Fijians and their treatment by indigenous Fijians; police reaction to reports of racially-motivated crimes against Indo-Fijians; availability of state protection for Indo-Fijians (2002-2006)
[4] September 1955 (journal article) A.C Cato Fijians and Fiji-Indians: A Culture-Contact problem in the South Pacific
[5] 2008 Journal of South Pacific law: Swastika Narayan Racial Discrimination in Fiji
Country information
Political Opinion
Fiji’s 2013 Constitution guarantees citizens the right to form or join a political party, participate in a political party’s activities or recruit members on its behalf, and campaign for a political party, candidate or cause.[6]
[6] Constitution of the Republic of Fiji, 6 September 2013, section 23
The applicant states that his participation in the 2022 election in Fiji provided ‘on the ground’ support for indo-fijian political leaders. The Tribunal observes that the political landscape and distribution of power has changed significantly since this time as Sitiveni Rabuka became the Prime Minister of Fiji as a result of that election. His People’s Alliance party secured the vote of the Social Liberal Democratic Party (SODELPA), whose 3 members held the balance of power after a hung parliament.[7]
[7] Rabuka to Become New Fijian PM After Securing Coalition Dea/”, Sydney Morning Herald, 20 December 2022
Mr Rabuka continues to hold office as Prime Minister and published comments by the US based Center for Strategic and International Studies (CSIS) indicate that:
…[He] wasted no time in reversing numerous vestiges of Bainimarama’s long tenure. This includes MP given another pay cut, bringing their earnings down 30 percent from pre-pandemic levels. Rabuka’s government has also signaled its intent to roll back media restrictions that were one of the most egregious features of the Bainimarama era. Alongside these popular measures, Rabuka’s government has exercised its prerogative to overturn appointments made by the previous government to diplomatic missions, government agencies, and institutions.[8]
[8] A New Era in Fiji Politics, Center for Strategic and International Studies (commentary by Patricia O’Brien) 7 February 2023 accessed 17 July 2025
In its 20 May 2022 report (prior to Mr Rabuka’s appointment) the Department of Foreign Affairs and Trade (DFAT) observed that ‘rank and file’ and low-profile opposition party members would be much less likely to experience interference’ than high-profile members. It further noted that those who engage in high-profile criticism may be questioned by the police, though this is not a problem affecting low-profile party members.[9]
Police protection
[9] DFAT Country Information Report Fiji, 20 May 2022, para 3.38
In its 2022 report, DFAT assessed (at paras 5.7 to 5.10) that:
Police are generally well-resourced by the Government and receive funding and training from overseas aid partners. The police are, in general, disciplined [and] policing is conducted on a community policing model and police are generally actively engaged with the communities they serve.
Corruption in the Fiji Police Force (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.
Racial Discrimination
The DFAT report, published before Mr Rabuka came to power, assesses that Indo-Fijians face a low level of societal discrimination.”[10] “Societal discrimination” is defined[11] as including:
·behaviour by members of society (including family members, employers or service providers) that impedes access by a particular group to goods or services normally available to other sections of society (examples could include but are not limited to refusal to rent property, refusal to sell goods or services, or employment discrimination)
·ostracism or exclusion by members of society (including family, acquaintances, employers, colleagues or service providers)
[10] DFAT Country Information Report Fiji, 20 May 2022, para 3.7
[11] DFAT Country Information Report Fiji, 20 May 2022, explanation of terms used in the report at p4
The DFAT report explains “low risk” as applicable when “DFAT is aware of incidents but has insufficient evidence to conclude that they form a pattern.”[12]
[12] DFAT Country Information Report Fiji, 20 May 2022, explanation of terms used in the report at p4
In 2023, the MultiEthnic Affairs Ministry was reinstated by the Fiji government - reportedly underscoring government commitment to addressing the diverse needs of Fiji’s population.[13] As published by The Fiji Times, in March 2024, Minister Charan Jeath Singh unveiled a policy report on an MultiEthnic Framework for Fiji to foster inclusivity and embrace diversity in propelling Fiji forward into the path of inclusivity and unity.
[13] “Minister unveils MultiEthnic Framework to foster inclusivity” The Fiji Times 13 March 2024
Fiji’s Multi-Ethnic Framework is referred to in Fiji’s recently published National Development Plan 2025 – 2029 and Vision 2050 which recognises the value of ethnic and cultural diversity by stating:
While the majority comprises indigenous Fijians (iTaukei and Rotuman), other ancestries including Indians, Chinese, and Europeans, Part Europeans, and other Pacific Islanders contribute to the nation’s cultural mix of population. The distinctions between ethnic groups in Fiji is apparent in their diverse cultural traditions, customs and religion. Fiji’s rich cultural heritage, ranging from languages, food, festivals, rituals, arts and traditions holds intrinsic value for both present and future generations. The acknowledgement and acceptance of cultural diversity contributes to the nation’s cohesion.
Fiji’s rich cultural heritage, ranging from languages, food, festivals, rituals, arts and traditions holds intrinsic value for both present and future generations. The acknowledgement and acceptance of cultural diversity contributes to the nation’s cohesion. Uplifting the socioeconomic wellbeing of the people through culture and heritage remains as a key commitment of the Government.[14]
[14] Fiji National Development Plan 2025 – 2029 and Vision 2050 “Culture and Heritage” p 141
Consideration of Supporting Materials
The Tribunal has had regard to the media articles dated between 2000 and 2023 and the 1955 journal article submitted by the applicant. The 2008 report and 2006 research publication provided have also been considered. The most recent publication (May 2023) provided by the applicant comments on the treatment of (and recognition of past injustices suffered by) Indo-Fijians in Fiji to which he refers throughout his evidence and submissions.
As observed above, Mr Rabuka took power in 2022 and was reported to have “wasted no time” taking action. The May 2023 article provided by the applicant is incomplete however the portion submitted[15] states:
More than three decades ago, Sitiveni Rabuka, then the third highest ranking army official, overthrew the Indo-Fijian dominated government of Prime Minister Timoci Bavadra. Street violence against Indo-Fijians followed, and tens of thousands fled the islands.
Fiji’s Prime Minister Sitiveni Rabuka Sunday apologised for his role orchestrating the 1987 coup that overthrew the democratically elected government of then Prime Minister Timoci Bavadra, the first Indo-Fijian to lead the country.
“I make this confession on my own behalf and on behalf of all those who took part with me in the military coup on 14 May 1987. We confess our wrongdoings, and we confess that we have hurt so many of our people in Fiji, particularly those of the Indo-Fijian community of the time and among them sons, daughters…”
[15] 18 May 2023 “Fiji’s 1987 Coup: Why Did Prime Minister Rabuka Apologise to the Indo-Fijian Community?” Media article by Alind Chauhan
These statements by Mr Rabuka were also published in the Australian media at the time[16] with commentary that “[t]he apology by Rabuka is seen as a significant step towards reconciliation between the indigenous Fijian and Indian communities.”
[16] 15 May 2023 Fiji’s PM Rabuka apologizes for 1987 coup, seeks forgiveness from Indian-Fijians” Bureau Report by The Australia Today accessed 17 July 2025
At the Reconciliation Service between the Methodist Church and the Girmitiyas in Suva held at the Vodafone Arena Mr Rabuka is reported (in the Australian media) as saying:
“I admit our wrongdoings, you have every right to blame us for the difficulties you went through, we do not blame you for being angry with us or even hate us, you are justified in your anger and your hate. I stand here to confess and to ask for your forgiveness,” [17]
[17] 15 May 2023 Fiji’s PM Rabuka apologizes for 1987 coup, seeks forgiveness from Indian-Fijians” Bureau Report by The Australia Today accessed 17 July 2025
In relation to policing generally in Fiji, the Tribunal has regard to the DFAT report cited above in forming the view that the Fiji Police Force is usually effective in carrying out their role in day-to-day crime detection, investigation and prevention. The Tribunal has considered the media article “Discrimination Against Fiji Indians Continuing: Chaudhry.” published by Indo-Asian News Service, New Delhi on 14 October 2004 provided by the applicant. While the document attached to the protection visa application was incomplete, its contents appear to have been reproduced (in large part) in the Hindustan Times published on the same date quoting former Prime Minister Mahendra Pal Chaudhry as having said:
Law enforcement in Fiji, has improved considerably, but discrimination against ethnic Indians was continuing.
The Tribunal considers that the comments made by former Prime Minister Mr Chaudhry (in 2004) are less reliable, in assessing the current state of law enforcement in Fiji, than the 2022 DFAT report (cited above). As such, the Tribunal places greater weight on the DFAT assessment of law enforcement in Fiji.”[18]
[18] DFAT Country Information Report Fiji, 20 May 2022 paras 5.7 to 5.10
The Tribunal has considered the media article “Dramatic Change, Severe Obstacles: Fiji Enters 2023 with a New Government, but Many of the Same Problems.” Published by Pacific Project on 3 January 2023. Part of this article was provided by the applicant. The article refers to army involvement (following the 2022 election) based on the ‘pretext’ of stone-throwing incidents constituting a wider attack of the Fijian Indian community.
The Tribunal considers that the comments made in this article are critical of the political ‘pretext’ used for post-election army involvement rather than indicating that law enforcement in Fiji is unable (or unwilling) to protect people in the Fijian Indian community. As such, the Tribunal places greater weight on the DFAT assessment of law enforcement in Fiji.
The Tribunal has considered the other (more dated) materials provided by the applicant:
·16 March 2021 “The Battle for Identity: Fijian-Indians Fight to be Recognised as Pasifika, not Asians .” Media article by Lincoln Tan Pasifika, not Asians .” Media article by Lincoln Tan
·22 June 2000 “Race, Resentment Fuel Attacks on Indians in Fiji, Forcing Many to Flee.” Media article by Mitchell Landsberg
·20 February 2008 “Committee On Elimination Of Racial Discrimination Considers Report Fiji.” press release (“bundle document 1”)
·17 October 2006 “Situation of Indo-Fijians and Their Treatment By Indigenous Fijians; Police Reaction To Reports Of Racially-Motivated Crimes Against Indo-Fijians; Availability Of State Protection For Indo-Fijians (2002-2006)” Research Directorate, Immigration and Refugee Board of Canada, Ottawa Fiji. (“bundle document 2”)
·2008 published article “Racial Discrimination in Fiji” by Swastika Narayan in the Journal of South Pacific law (“bundle document pp 25 - 32”)
·September 1955 “Fijians and Fiji-Indians: A Culture-Contact problem in the South Pacific.” journal article (incomplete) by A.C Cato (“bundle document pp 33 - 35”)
·28 March 2017 “ Indo-Fijians and Fiji’s Coup Culture.” Article by Grant Wyeth published in The Diplomat Oceania (“bundle document pp 36 - 39”)
The Tribunal notes that each of the above-listed materials are somewhat dated and only an extract from the 1955 article has been provided. While the applicant submits that the issue of racial discrimination in Fiji against Indo-Fijians has been recognised by the United Nations (and the issue has been highlighted everywhere in world media) the Tribunal places considerable weight on the relevant content of the 2022 DFAT report because it has been produced expressly for protection status determination purposes. For this reason (and because the DFAT report is more recent than the above-listed materials provided by the applicant) the Tribunal relies on the DFAT report[19] and finds that the Fiji Police Force, in its current state of operations, is adequately resourced overall and is usually effective in carrying out its role in day-to-day crime detection, investigation and prevention.
[19] DFAT Country Information Report Fiji, 20 May 2022 paras 5.7 to 5.10
Findings on past harm related to political opinion and/or ethnicity
Based on the above-cited country information and published article (referencing Mr Rabuka’s confession) in May 2023, the Tribunal accepts that the Indo-Fijian community suffered harm during the 1987 coup.
Based on the country information and published commentary cited above, the Tribunal accepts that (under the leadership of Mr Rabuka) a new government in Fiji was elected in 2022 which has led to reforms in the applicant’s home country as well as a public recognition of past ill-treatment of Indo-Fijians by the incumbent Prime Minister.
It is the applicant’s assertion that “just a few days [after] formation of government on 21 December 2022, the Fiji Police received reports of harassment and stoning incidents targeting homes and businesses of Indo Fijians.”[20]The applicant did not give evidence at hearing, that he personally suffered harm of this nature following the 2022 election. On this basis, the Tribunal does not find that the applicant suffered harm personally during the post-election period because of his ethnicity or political opinion (or at all).
[20] Pre-hearing submission 17 May 2025, page 3
The Tribunal has considered the applicant’s assertion[21] that more than a ‘little’ official discrimination against Indo-Fijians in respect of education, healthcare and other government services (including allocating funds for social programs and development in areas where the Indian community lives). The applicant did not give evidence at hearing, that he personally suffered from official discrimination in respect of these services. Based on the available evidence, the Tribunal does not find that the applicant has been harmed by such discriminatory practises because of his ethnicity or political opinion (or at all).
[21] Pre-hearing submission 17 May 2025, page 4
At hearing, the applicant described an incident where he witnessed street crime which resulted in an Indo-Fijian person being harmed by indigenous Fijians. The Tribunal does not find that the applicant was harmed during this incident by reason of his ethnicity (or at all).
The Tribunal accepts the applicant’s statements that he operated [an occupation 1] business in Fiji for 24 years and that Indo-Fijians were amongst his [customers]. At hearing, the applicant described the following 2 incidents when he suffered harm while he was driving his [work vehicle] in Fiji.
The Election incident
There is no corroborative evidence before the Tribunal to establish that the applicant played an activist role as a party member (or at all) during general elections in Fiji. The applicant states in his submission that he has no evidence of his involvement in the 2006 campaign. No evidence has been provided to show which (if any) political party the applicant supported or joined as a member. Evidence regarding the applicant’s political opinion and political involvement was given at hearing.
The applicant claims he was physically harmed in an incident when he was operating his [work vehicle] (and conveying political candidates and/or party members) during the 2022 electoral campaign. He stated that assailants snatched his hair and tried to punch his face. Based on the applicant’s evidence that he was performing a [specified service] at the time, the Tribunal finds that he was undertaking his usual employment at the time rather than being (as claimed) “very active in the election campaign” underway at the time.
Based on the evidence presented, the Tribunal does not accept that the applicant was a member of the Fiji First Party (as claimed) or that his role in conveying electoral candidates during the 2022 election campaign constituted political activism on his part.
The Tribunal accepts the applicant’s evidence at hearing, that he did not know why he and his [work vehicle] were targeted for street crime during the 2022 election campaign. Based on the evidence presented, the Tribunal does not accept that, in the election incident, the applicant was being targeted because of his ethnicity or his political opinion.
The Robbery incident
The applicant claims to have been personally involved in an incident of street crime when he and his [customers] (who included persons of Indo-Fijian ethnicity) were robbed on the street by a group of indigenous Fijians.
There is no corroborative evidence of the robbery incident before the Tribunal - the applicant did not report it to Police. The applicant was unable to identify the perpetrators in any significant detail when giving evidence at hearing (he stated that the perpetrators had their faces covered).
Based on the evidence presented, the Tribunal does not accept that the described incident of robbery was carried out by indigenous-Fijians or that the applicant and his passengers were targeted for street crime because of their ethnicity.
Findings on the drug smugglers
83. In assessing the applicant’s case, it is necessary to make findings of fact on relevant matters which may involve an assessment of the credibility of the applicant’s claims. I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. However, the Tribunal is not required to accept uncritically any or all of an applicant’s claims,[22] and nor does the Tribunal require rebutting evidence before it can find that a particular assertion by an applicant has not been made out.[23]
[22] MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70
[23] Randhawa v MILGEA (1994) 52 FCR 437 per Beaumont J at 451; Selvadurai v MIEA (1994) 34 ALD 347 per Heerey J at 348 and Kopalapillai v MIMA (1998) 86 FCR 547
The applicant claims to be an ongoing target for retribution by a group of indigenous Fijians whom he reported to Police after they used his [occupation 1] service to smuggle cannabis or marijuana.
The Tribunal finds that the applicant’s evidence in support of this claim is limited and lacking in detail because the applicant:
·did not state when he made the report to Police or provide other details of the report
·was uncertain of when (in 2020 or 2021) threats were made against him by the drug smugglers
·provided inconsistent accounts of the circumstances in which the drug smugglers threatened him
·did not explain in any detail why he interpreted a hand gesture by one of the drug smugglers as a threat
·did not state when he made a formal request to Police that he be given protection from the drug smugglers or provide other details of that request
·provided no detail to the Tribunal regarding the identity or ethnicity of the drug smugglers or the fellow [occupation 1s] who allegedly told him the drug smugglers are still looking for him
·provided no information to the Tribunal to establish the drug smugglers were arrested, prosecuted or incarcerated due (wholly or in part) to the report he made to Police
·provided no information to the Tribunal to establish when the drug smugglers were (as claimed) out on bail and threatening him.
The applicant stated at hearing that he had forgotten about the drug smuggler threats when instructing his solicitor at the time of preparing the protection visa application even though the applicant had allegedly been informed (by friends) that they were still looking for him at the time the protection application was submitted.
The applicant arrived in Australia [in] January 2024 and lodged his application for protection on 17 February 2024. The Tribunal considers that, at the time the visa application was submitted, [the applicant] had a somewhat poor recollection of recent events. The applicant told the Tribunal he ‘forgot’ to mention the drug smuggler events to his solicitor and this leads the Tribunal to have significant concerns regarding the applicant’s recollection of those events.
At hearing, the applicant gave inconsistent evidence regarding threats made directly to him by the drug smugglers. Initially he stated that one of them ‘called’ him making threats. When the Tribunal enquired how that person would have known his phone number, the applicant amended his account of events saying that the described threat had occurred while he was in his [work vehicle] driving slowly past one of the drug smugglers who was standing in the street.
As the Tribunal considers the applicant’s claims of events and threats made by drug smugglers to be uncorroborated, lacking in detail and (at times) inconsistent, the Tribunal does not accept his claims in this regard to be reliable.
As discussed with the applicant at hearing, s 367A of the Act (reproduced at para 18 above) governs circumstances where an applicant presents new claims not raised before the primary decision was made or presents evidence on review that was not presented before the primary decision was made. The provision requires the Tribunal to draw an inference unfavourable to the credibility of the claim or evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.
In this case, the Tribunal considers that the applicant has presented new claims and evidence regarding threats of harm made against him by drug smugglers.
At hearing, the applicant indicated to the Tribunal that he had been ably assisted by his solicitor when preparing the protection visa application. [The applicant] explained the delay in advancing the claim of drug smuggler threats by saying that he “forgot”. The Tribunal notes that the drug smuggler claims were also not raised in submissions provided to the Tribunal before the hearing. The Tribunal does not find that the applicant has advanced a reasonable explanation for not putting the drug smuggler claims forward before the primary decision was made. In light of this finding, the Tribunal draws an inference unfavourable to the credibility of the applicant’s drug smuggler claims.
For the reasons stated above, and taking into account the inference to be made by the Tribunal pursuant to s367A, the Tribunal does not accept that the applicant has been threatened with harm by drug smugglers if he returns to Fiji. The Tribunal does not accept that the applicant fears he will suffer retribution at the hands of drug smugglers if he returns to Fiji.
Ineffective police protection
The applicant claims that Police refused him protection when he reported that the drug smugglers made threats against him. As observed above, the Tribunal does not accept that the applicant has been threatened by drug smugglers (or at all). The applicant did not give evidence at hearing that he has been denied police protection (or been supplied with inadequate police protection) on any other occasion. As such, the Tribunal does not find that the applicant has personally experienced ineffective police protection in Fiji because of his ethnicity (or at all).
REASONS FOR DECISION
Based on a copy of the applicant’s passport available on the Department’s file, I find that Fiji is his country of nationality and his receiving country for the purposes of refugee and complementary protection assessments.
The issues in this case are whether there is a real chance that, if the applicant returns to Fiji, he will be persecuted for one or more of the five reasons set out in s 5J(1)(a) for the purpose of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Fiji, there is a real risk that he will suffer significant harm for the purpose of s 36(2)(aa) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Does the applicant satisfy the refugee criterion for protection?
The criterion in s 5J(1)(a) contains a subjective requirement, that the 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 persons applying for protection, 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 though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
In determining the possibility of persecution, the Tribunal is guided by instances of harm that would be considered to be ‘serious harm’. These would include, for example, a threat to a person’s life or liberty, a significant physical harassment or a significant physical ill-treatment of the person, or circumstances that threaten the person’s capacity to subsist.
100. As explained above, the Tribunal has not (based on its assessment of the evidence) accepted that the street violence alleged by the applicant, was inflicted upon him by reason of his race or political opinion. The Tribunal has not accepted that the applicant has been threatened by drug smugglers or that he would suffer violence at their hands if he returns to Fiji because of his race or political opinion (or at all).
101. The Tribunal has considered the applicant’s inter-racial (and politically motivated) violence claims and does not find that, based on the accepted evidence, there is a reasonable possibility he will face persecution or serious harm by reason of his ethnicity or political opinion if he returns to Fiji.
102. Having regard to these findings, the Tribunal concludes that the applicant’s fears of inter-racial (and politically motivated) violence if he returns to Fiji, are not well founded. The Tribunal finds that the applicant does not meet either the subjective requirement [in s 5J(1)(a)] or the objective standard [in s 5J(1)(b)] as regards inter-racial or politically motivated violence.
103. For the reasons given above, and having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that if the applicant returned to Fiji now, or in the reasonably foreseeable future, he would face a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason.
104. The Tribunal concludes that the applicant does not have a well-founded fear of persecution as defined in s 5J of the Act and is not a refugee within the meaning of s 5H(1) of the Act. It follows that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act.
105. The Tribunal now turns to consider the alternative protection criterion in s 36(2)(aa).
Does the applicant satisfy the complementary protection criterion for protection?
106. Having found the applicant does not satisfy the refugee criterion in s 36(2)(a) of the Act, the Tribunal must proceed to consider whether in the alternative, he is able to engage Australia’s protection obligations under the complementary protection criterion in s 36(2)(aa) of the Act because there are substantial grounds for the Tribunal to believe that there is a real risk he would suffer significant harm as a necessary and foreseeable consequence of a removal from Australia to Fiji.
107. In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test as it applies to complementary protection imposes the same standard as the ‘real chance’ test applicable to the assessment of the refugee criterion in s 36(2)(a).
108. When assessing the complementary protection criterion, the Tribunal must consider whether the general crime rate claimed by the applicant (as likely to cause him harm if returned to Fiji) constitutes ‘significant harm’.
109. 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). Instances of ‘significant harm’ are exhaustively defined in the Act to include arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, degrading treatment or punishment.
110. The Tribunal finds that the risk associated with the general crime rate in Fiji involves a risk faced by the population of the applicant’s home country generally. This is not a risk faced by the applicant personally for the purposes of s 36(2B)(c).
111. In light of the findings above, the Tribunal is not satisfied that there is a real risk that the applicant will suffer ‘significant harm’ at the hands of drug smugglers (or at all) if he returns to Fiji.
112. It follows that the Tribunal is not satisfied that it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that he will suffer significant harm.
113. 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 will does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Date of hearing: 26 May 2025
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.
…
0
1
0