2439854 (Refugee) - [2025] ARTA 2169

2439854 (Refugee) [2025] ARTA 2169 (22 September 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship

Tribunal Number: 2439854
Tribunal:General Member M Hanna
Date:22 September 2025

Place:Melbourne
Decision:The Tribunal affirms the decision under review.

Statement made on 22 September 2025 at 11:23am
CATCHWORDS
REFUGEE – protection visa – Fiji – economic hardship due to natural disasters – devastation caused by cyclone – came to Australia to earn a living, support family, and ensure children are educated – lengthy delay in applying for protection – erroneous claims – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 5AAA, 5H, 5J–5LA, 36, 56, 65, 369, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
BBK15 v MIBP [2016] FCA 680
BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184
CQG15 v MIBP [2016] FCAFC 146
DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2
GLD18 v MHA [2020] FCAFC 2
Guo v MIEA (1996) 64 FCR 151
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam (1999) 93 FCR 220
MIMIA v VFAY [2003] FCAFC 191 at [60]
Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1
Randhawa v MILGEA (1994) 52 FCR 437
Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60
Selvadurai v MIEA (1994) 34 ALD 347
SZTAL v Minister for Immigration [2016] FCAFC 69
WAKK v MIMIA [2005] FCAFC 225
Any 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 22 October 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 6 August 2024. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations and on 22 October 2024 the applicant sought a review of that decision from the Administrative Review Tribunal (ART).
The applicant appeared before the Tribunal on 30 July 2025 to give evidence and present arguments. The applicant was unrepresented in respect of the review. The Tribunal also received oral evidence from one witness, [Friend A], a friend of the applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages. The Tribunal is satisfied that the applicant had a reasonable opportunity to present his case.
BACKGROUND
The applicant is [an age]-year-old citizen of Fiji who was born in [Island 1], Fiji. He is of Melanesian iTaukei ethnicity and of Christian faith.
The applicant’s family consists of his parents and [siblings] with the applicant being the [eldest] male of five children. The applicant’s father is deceased having passed away sometime in 2023 and his mother is [an age] year old homemaker living in [Island 1], Fiji. The applicant’s siblings [all] live in [Island 1], Fiji.
The applicant is in a de facto relationship with his Fijian partner who lives in [Island 1] and together they have [children] ranging in [ages]. The applicant’s eldest [child] works [on] the family farm whilst the younger children are attending school. Following his arrival in Australia, the applicant maintains daily contact with his family members by telephone.
Prior to his arrival in Australia, the applicant had lived in [Island 1], Fiji from birth ([year]) until his travel to Australia in October 21017. In Australia, the applicant has at all times lived in Queensland.
The applicant completed his secondary school education to the equivalent level of grade 10 sometime in [year] following which he worked [on] cultivating his own family farm land. In Australia, the applicant has undertaken [Occupation 1] from 2017 – June 2023. Since June 2023 he has been working full time in [Workplace 1].
By way of immigration history, the applicant has travelled to Australia three times during the period of October 2017 to date. The applicant has held numerous [visas] during that period of time with his most recent arrival as the holder of a 403 visa [in] November 2019. [His last visa ceased] on 7 August 2024. The applicant lodged his application for a protection visa on 6 August 2024 and was subsequently granted a Subclass 010 Bridging Visa A with no conditions on 10 August 2024. The applicant has not departed Australia since his last arrival [in] November 2019.
The applicant has never travelled anywhere else outside of Fiji.
The Tribunal accepts the above matters to be true.
Evidence before the Department
In his protection visa application, the applicant claimed in summary that:
·He left Fiji as he wanted to start a new life in a safe country with a good economy.
·He did not experience harm in Fiji.
·He did not move, or try to move, to another part of Fiji to seek safety as he will face the same issues.
·He cannot return to Fiji as the economy is very bad, there are political issues and crime is increasing. His life is somewhat affected by the rising cost of living as basic necessities are very expensive yet his earnings remain the same.
·If he were to return to Fiji he will have a hard life due to the rising cost of living, lack of financial support and increasing crime rates.
·The authorities will not protect him and many people are complaining about government bodies.
·He does think that he would be able to relocate within Fiji but did not provide any further information.
Supporting documents
In support of his primary protection visa application, the applicant submitted the following to the Department of Home Affairs:
i.Completed online Application for a protection visa form dated 6 August 2024; and
ii.Copies of his Fijian passport.
The interview
Departmental records indicate that the applicant was not invited to attend a protection visa interview.
Request for further information
On 14 September 2024, the applicant was sent correspondence inviting him to provide additional information about his claims under s56 of the Migration Act 1958 (the Act).
In response the applicant provided a written statement which, in summary, stated as follows:
·The applicant moved to Australia in search of safety and better opportunities, as Fiji’s weak economy, political instability, frequent natural disasters such as cyclones, high cost of living, and rising crime made it nearly impossible to sustain a decent life or provide for his family. Employment opportunities in Fiji were scarce, wages were low, and prices for basic goods were inflated, leaving him struggling to stay afloat financially and to ensure his family’s safety.
·The pressure of surviving under such conditions had a significant personal impact on him, and with no financial support or assistance, he was left with no choice but to leave Fiji and come to Australia, seeking a better life.
The applicant also submitted two unmarked and unidentifiable photographs which he stated depicted the damage caused by cyclone Winston in 2016 on the island of [Island 1].
The delegate’s decision
On 18 October 2024, the delegate refused to grant the applicant a protection visa as the delegate was not satisfied that he was owed protection as a refugee or under the complementary protection provisions.
Evidence before the Tribunal
On 22 October 2024, the applicant applied to the Tribunal for a review of the delegate’s decision.
Supporting documents – pre-hearing submissions
In support of his review application, the applicant provided the Tribunal with a copy of the delegate’s decision. No further information was provided.
Evidence at hearing
On 30 July 2025, the applicant appeared before the Tribunal to give evidence and present arguments in support of his application.
The Tribunal discussed with the applicant his immigration history and the preparation of his primary protection visa application. The applicant gave evidence that he paid an agent in Queensland to prepare and lodge his protection visa application on his behalf. The applicant confirmed that his claims as set out in his primary application were correct but he also wished to add and/or change some information as set out below.
The Tribunal asked the applicant why he left Fiji. The applicant gave evidence that his primary reason was to earn enough money to support his family back home. The applicant stated that in 2016, his island and village were devastated by Cyclone Winston. His family home and farm were destroyed, and his family, along with the wider community, were left without proper shelter. He gave evidence that his family initially lived in a tent in the aftermath of the cyclone. Later he travelled to Australia, where he found work and was able to send money to assist with the rebuilding of his home. The applicant went on to state that his home has since been rebuilt, with completion expected by the end of 2025. His farm has also recovered, and is once again able to grow crops. His eldest [child] now works on the farm.
The applicant further explained that his village and community received assistance in the rebuilding of infrastructure. The first responders at the time of the cyclone were the Fijian and Australian authorities, who provided tents and food to sustain families in the immediate aftermath. The applicant noted that the same assistance was provided to all members of his village and to others on the island.
The Tribunal discussed with the applicant country information which indicated that, following Cyclone Winston, [Island 1 was assisted by] disaster resilience efforts led by numerous organisations such as the Fiji National Disaster Management Office (NDMO)[1], Red Cross Fiji[2], UNDP’s Pacific Resilience Program[3], and Habitat for Humanity Fiji[4]. The Tribunal noted that country information indicated, whilst Cyclone Winston caused devastating damage, key measures were introduced to strengthen resilience. These included the establishment of village disaster committees, the development of early warning systems, and training on emergency preparedness. Community based adaptation plans were also developed through workshops and consultations with various stakeholders including the community.[5]
[1] Home – NDMO
[2] Fiji Red Cross Society
[3] pacific-risk-resilience-program-mid-term-review-report.pdf
[4] Home - Habitat Fiji
[5] National Adaptation Plan 2018 - Climate Change Laws of the World
The Tribunal further put to the applicant that, in addition to government assistance, country information indicated that NGO’s supported rebuild efforts,[6] including the construction of cyclone- resistant housing, and that some villages were relocated to higher ground. Country information also records Fiji's National Adaptation Plan identifies Fiji’s islands such as [Island 1] and the broader [Province 1] as vulnerable to rising sea levels, saltwater intrusion, and stronger cyclones. Long-term government measures included planned relocation, climate-resilient agriculture, and flood-resistant infrastructure.[7] The Tribunal noted that, whilst the remoteness of [Island 1] delayed the restoration of infrastructure such as schools and clinics, effective assistance was provided in response to Cyclone Winston, and Fiji is considered to have functioning state systems capable of responding to environmental crises.[8]
[6] Fiji: Tropical Cyclone Winston – Response & Flash Appeal – Final Summary, 13 June 2016 - Fiji | ReliefWeb
[7] National Adaptation Plan 2018 - Climate Change Laws of the World
[8] Department of Foreign Affairs and Trade DFAT Country Information Report: Fiji 20 May 2022 at 5.1 – 5.3.
When asked to comment on this information, the applicant confirmed that such country information was accurate. He gave evidence that he had experienced what everyone else on the island experienced and that he and his family received equivalent assistance to that provided to others on the island. He went on to state that the rehabilitation and reconstruction efforts have progressed well and that many houses and community buildings have since been restored or reconstructed.
When asked whether he had experienced any other harm in Fiji, the applicant stated that he had not. In response to questions regarding his primary claims that he could not return to Fiji because of political issues and increasing crime, the applicant gave evidence that he had never been the victim of any crime and did not feel at risk of any harm for any political reason. He stated that he did not know how such a claim came to be included in his application and that it must have been an error.
When asked whether he could return to Fiji now, the applicant stated that he does not wish to return as he wants to continue working in Australia in order to earn money to support his family, particularly to fund his children’s education. The applicant confirmed that he had never attempted to live elsewhere in Fiji, stating that [Island 1] is his home village. He reiterated once again that his primary purpose in coming to Australia was to earn a living so that he could provide for his family and ensure that his children are able to attend school.
Delay in lodgement
Finally the Tribunal discussed with the applicant the lengthy delay in lodging his protection visa application. It was noted that although the applicant last arrived in Australia [in] November 2019, his protection visa application was not lodged until August 2024, almost 5 years later. The Tribunal put to the applicant that, given his immigration and visa history, the delay in the lodgement of his application suggested that it was lodged primarily as a means to extend his stay in Australia after he had exhausted all other visa options available to him. In response, the applicant gave evidence that his intention, then and now, is to remain in Australia where his is working in a stable environment and earning a good income, which allows him to support his family.
CONSIDERATION OF CLAIMS AND EVIDENCE
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.
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.
REASONS AND FINDINGS
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or they are a member of the same family unit as such a person and that person holds a protection visa of the same class. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity and country of nationality
The applicant’s nationality is not in issue. The applicant is [an age]-year-old citizen of Fiji who was born in [Island 1], Fiji. The applicant travelled to Australia on a valid Fijian passport and states that he is a national of Fiji. In support of his protection visa application, the applicant provided a copy of his Fijian passport. The delegate accepted that the applicant had provided sufficient evidence of his identity and nationality and accepted the applicant’s identity. On the evidence before it, the Tribunal is satisfied that the applicant is a national of Fiji and has assessed his claims against Fiji as his country of reference and ‘receiving country’ respectively.
Credibility
The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility.[9] The mere fact that a person claims to fear 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, the fact that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm.’ It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
[9] Summaries of the principles relating to credibility findings are provided by the Federal Court in the following decisions: BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32]–[34] per Rangiah, Perry and Bromwich JJ; CQG15 v MIBP [2016] FCAFC 146 at [36]–[38] per McKerracher, Griffiths and Rangiah JJ; DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2 at [30] per Kenny, Kerr and Perry JJ.
Section 5AAA of the Act clarifies that it is the responsibility of an applicant to specify all particulars of their claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. Applying this section, the Tribunal does not have any responsibility or obligation to specify or assist in specifying particulars of the claim or to establish or assist in establishing a claim. This is consistent with the well-settled proposition that it is for an applicant to make their own case.[10]
[10] Re Ruddock; Ex parte ApplicantS154/2002 [2003] HCA 60 (Gleeson CJ, Gummow , Kirby, Callinan and Heydon JJ, 8 October 2003) at [57] and [1]; WAKK v MIMIA [2005] FCAFC 225 (Marshall, Mansfield and Siopis JJ, 1 November 2005) at [73].

The Tribunal acknowledges however the importance of adopting a reasonable approach when making findings of credibility.[11] It is important to bear in mind the difficulties often faced by asylum seekers. The benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims.
[11] Guo v MIEA (1996) 64 FCR 151, per Foster J at 194 (Full Federal Court).
If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[12] However, the Tribunal is not required to accept uncritically any, or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[13]
[12] MIMA v Rajalingam (1999) 93 FCR 220.
[13] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.
Does the applicant satisfy the refugee criterion for protection?
Findings
The Tribunal records at the outset that it found the applicant gave his evidence in a credible, candid, honest and forthright manner. The Tribunal accepts the applicant’s evidence as to his background as detailed in paragraph 4 – 10 above. The Tribunal further accepts that the applicant left Fiji following the devastation caused to his family home, farm and community in the wake of Cyclone Winston and that his decision to travel to Australia was motivated by the search for better economic opportunities in Australia, enabling him to work and provide financial support to his family. The Tribunal accepts the applicant’s consistent evidence that his primary reason for coming to Australia was to earn sufficient income to support his family in Fiji, that he did not experience harm in Fiji, and that he did not attempt to relocate within Fiji for safety or other reasons. The Tribunal also accepts the applicants evidence that he was never the victim of any crime or subjected to any harm as a result of rising crime in Fiji. The Tribunal further accepts the applicant’s evidence that he does not fear any harm for any political reason, and that such a claim was included in his primary visa application in error. Finally the Tribunal accepts that the applicant does not wish to return to Fiji as he wants to continue working in Australia in order to continue earning money to support his family in Fiji
Fear of harm as a result of natural disasters.
Having accepted the applicant’s evidence as set out above, the Tribunal has now turned its mind to consideration of the applicant’s claim that he will face economic hardship because of the impact of natural disasters in Fiji.
The Tribunal accepts that Fiji, with population of approximately 930,000 people, is highly vulnerable to the impacts of climate change. That this vulnerability arises from its geographical location as a small island country and the concentration of much of its population and assets in low-lying coastal areas. The Tribunal accepts that Fiji is particularly exposed to natural disasters such as cyclones, flooding, and sea-level rise, which continue to pose significant risks to its communities and infrastructure, and key industries, including agriculture, which is especially vulnerable to cyclonic events.[14].
[14] Department of Foreign Affairs and Trade DFAT Country Information Report: Fiji 20 May 2022 at 2.8.
The Tribunal explained to the applicant however that its task is to consider whether he satisfies the refugee criterion or is otherwise entitled to complimentary protection. The Tribunal explained the relevant legal tests and that to meet the refugee criterion the harm feared needed to be for the essential or significant reason of one of the five reasons set out in the refugee definition. The Tribunal questioned the applicant about his circumstances and claims, including whether he believed he was more affected than other people in Fiji by the increasing severity and frequency of natural disasters to which the applicant gave evidence that he experienced what everyone else experienced. The applicant gave evidence that whilst his family home and farm on [Island 1] had been devastated in the wake of Cyclone Winston so had everyone else’s home. He received assistance from the Fijian authorities and other organisations including various NGO’s who assisted with the immediate needs of the applicant and his family in the aftermath of the cyclone and later with the rebuild of his home and farm. The applicant gave evidence that he received the same assistance as every one else did and that with the remittances he has been able to send from his work in Australia, he has now been able to rebuild his home and farm and his farm is now cultivating crops with his [child] responsible for tending to the farm in his absence. The applicant confirmed that he and others in his village and on the island of [Island 1] received effective state and other assistance as set out in paragraphs 24 – 27 above with rehabilitation, restoration and reconstruction efforts such that his family home and farm, as well as many other homes and community buildings have since been restored or rebuilt.
The applicant’s evidence was that prior to coming to Australia he was a subsistence farmer who cultivated his family farm and that he has never worked or lived elsewhere outside of [Island 1]. Consequently, and having regard to the applicant’s evidence, the Tribunal accepts the impacts of climate change, and in particular the increasing frequency and intensity of natural disasters, may affect the applicant’s ability to obtain regular work in Fiji in the future. However, the Tribunal is not satisfied that these circumstances prevent the applicant from re-establishing himself in Fiji. On the basis of the applicant’s evidence that his home and farm have been rebuilt and restored, the Tribunal finds that he is able to return to his property and continue to earn a livelihood.
The Tribunal finds that the applicant’s claimed fear of harms as a result of the increasing frequency of natural disasters or the economic harm and consequences of such disasters or any other harm caused by climate change related events, do not relate to any of the reasons in s 5J(1)(a). The Tribunal further finds that, having regard to the applicant’s particular profile as a subsistence farmer of working age with strong family networks in [Island 1], that there is no real chance that any economic hardship he may face as a consequence of natural disasters will rise to the level of serious harm for the purposes of the refugee criterion.
The Tribunal is not satisfied that the applicant’s claims that he will face harm due to the increasing prevalence of natural disasters relate to any reasons in s 5J(1)(a) or that, as a consequence of natural disasters, he will experience discrimination or economic hardship for one or more of these reasons in s 5J(1)(a). As a result, the Tribunal is not satisfied that the applicant’s genuine concerns about the increasing prevalence and intensity of natural disasters in Fiji give rise to a well-founded fear of persecution for the purpose of s 5J.
Fear of harm on basis of generalised economic hardship.
The Tribunal has now turned its mind to consideration of the applicant’s claim to fear harm on return on account of general economic circumstances in Fiji. The Tribunal finds that the applicant has not articulated any claims which satisfy the thresholds for protection in this regard. The Tribunal notes that in his evidence at hearing, the applicant stated that whilst his family home and farm were destroyed in the wake of Cyclone Winston in 2016, he has since been able to rebuild them. The applicant gave evidence that, with remittances from his earnings in Australia since 2017, together with the assistance provided by the Fijian authorities and other organisations, his home and farm have now been restored. The family farm is now cultivating crops, and the applicant’s [child] is working on the farm. On the basis of this evidence, and as set out in the Tribunal’s findings above, the Tribunal is satisfied that the applicant is able to return to his property and continue to maintain a livelihood in Fiji.
The Tribunal notes that, absent other considerations, economic circumstances are circumstances of general application in a country and lack the degree of particularity required to give rise to protection obligations under the refugee[15] or complementary protection criteria.[16] The applicant has not provided any evidence regarding his personal circumstances or outlined his claims in sufficient detail for the Tribunal to be satisfied that his particular circumstances would lead him to face a real chance of serious or significant harm on return to Fiji for reasons of the prevailing economic circumstances in Fiji as a whole.
[15] Minister for Immigration and Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1 (at [99] per McHugh J); and SZTAL v Minister for Immigration [2016] FCAFC 69.
[16] MIMIA v VFAY [2003] FCAFC 191 at [60]; and BBK15 v MIBP [2016] FCA 680 (Buchannan J, 8 June 2016) at [32].
The Tribunal accepts the applicant’s evidence with respect to his lesser economic circumstances in Fiji relative to Australia, however, there is no information before the Tribunal to suggest that the applicant will be subjected to harm on his return to Fiji for one or more of the reasons mentioned in s 5J(1)(a) of the Act. Further, the Tribunal refers specifically to s 5J of the Act relating to a well-founded fear of persecution in a country, particularly the requirement that the persecution must involve systematic and discriminatory conduct. Generalised economic circumstances in a country do not meet the requirements of systematic and discriminatory conduct in the absence of other considerations and do not constitute persecution or discrimination within the meaning of s 5J(4). The Tribunal finds that the applicant has not provided any evidence that the economic circumstances which he referred to in his claims amount to systematic and discriminatory conduct with respect to him.
Whilst the Tribunal accepts that the applicant may face some difficulty upon return to Fiji in re-establishing himself given that he has now been in Australia for almost six years, nonetheless the applicant has given evidence that his home and farm in [Island 1] have now been rebuilt, that his farm is actively cultivating crops, that his [child] is working on the family farm and that he has significant family support in Fiji with his partner, adult [child] and [adult] siblings who are able to assist the applicant in re-establishing himself. Accordingly, the Tribunal is satisfied that the applicant would be able to subsist on return to Fiji and that any initial economic difficulty the applicant may face upon re-establishing himself would not amount to serious harm.
Given these considerations the Tribunal finds there is no real chance the applicant would suffer significant economic hardship that threatens his capacity to subsist; and/or be denied access to basic services, where the denial threatens his capacity to subsist; and/or be denied the capacity to earn a livelihood of any kind, where the denial threatens his capacity to subsist (as per the non-exclusive examples of serious harm mentioned at s 5J(5)(d) – (f) of the Act), for one or more of the reasons mentioned at s 5J(1)(a) of the Act, should he return to Fiji.
Accordingly, and having regard to the applicant’s circumstances and the evidence presented, the Tribunal finds that there is no real chance the applicant would suffer serious harm should he return to Fiji now or in the reasonably foreseeable future on the basis of this claim.
Fear of harm on the basis of political issues and/or crime.
The Tribunal has considered the applicant’s claims in his initial protection visa application to fear harm upon return to Fiji on the basis of political issues and increasing crime. Having accepted the applicants oral evidence at hearing that he was never the victim of any crime or subjected to any harm as a result of rising crime in Fiji, and that he does not fear any harm for any political reason, and that such a claim was included in his primary visa application in error, the Tribunal finds that the applicant does not fear harm upon return to Fiji on the basis of political issues and/or crime.
Summary of findings
Having taken into account all of the above matters, the oral and written evidence before the Tribunal, the country information referred to in this decision and the evidence as a whole, the Tribunal is not satisfied that if the applicant returns to Fiji now or in the reasonably foreseeable future he faces a real chance of serious harm on the bases of natural disasters, economic hardship, political issues or crime.
Having considered the applicant’s circumstances individually and cumulatively, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution as required for the purposes of the definition of a “refugee” as contained in s5H of the Act and is not a person in respect of whom Australia has protection obligations under s36(2)(a).
Does the applicant satisfy the complementary protection criterion for protection?
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).
In considering whether the applicant meets the complementary protection criterion under s 36(2)(aa), the Tribunal has considered whether it has substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to his receiving country, there is a real risk that he will suffer significant harm. In this case, the Tribunal accepts that the applicant is a national of Fiji and that Fiji is his ‘receiving country’ for the purposes of s 5(1).
For the reasons set out above, the Tribunal has found there is no real chance of the applicant suffering serious harm if returned to Fiji on the basis of natural disasters, economic hardship, political issues or crime. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[17] The Tribunal notes that this applies equally to the assessment of ‘well-founded fear’ for the purposes of s 5J. Accordingly, for the same reasons, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal to Fiji, there is a real risk the applicant will suffer significant harm on these bases.
[17] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297], Flick J at [342].
The Tribunal does not accept there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that he would be arbitrarily deprived of his life or subjected to the death penalty. The Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant would be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons set out in paragraphs (a) – (e) of the definition of ‘torture’ in s5(1) of the Act. Nor is the Tribunal satisfied that there are substantial grounds for believing that there is a real risk that the applicant would be subjected to harm involving the intentional infliction of severe pain or suffering, or pain or suffering, whether physical or mental, such that it meets the definition of ‘cruel or inhumane treatment or punishment’ as set out in s5(1) of the Act. The Tribunal is also not satisfied that there are substantial grounds for believing that there is a real risk that the applicant would be subjected to any form of harm that would be the result of an act or omission that causes, or is intended to cause, extreme humiliation which is unreasonable such that it meets the definition of ‘degrading treatment or punishment’ as set out in s5(1) of the Act, now or in the reasonably foreseeable future
Economic hardship
The Tribunal accepts that it may be difficult to some degree for the applicant to re-establish himself if he returns to Fiji, given he has been in Australia for almost six years. However, the Tribunal does not accept that any economic hardship the applicant may face as a necessary and foreseeable consequence of being returned to Fiji would arise from the intentional or deliberate act or omission of another person or persons such that it would be of a severity as to constitute significant harm as set out in s36(2A)(a)-(e). Australian courts have held complementary protection obligations are concerned with intentional acts or omissions occurring in the relevant country and how a visa applicant might be treated by another person.[18] Accordingly, the Tribunal finds that any economic hardship the applicant might experience if removed to Fiji would not amount to significant harm for the purposes of the Act, because the harm would not be as a result of any deliberate act or omission of any group or person done with the intention of causing him to suffer significant harm.
[18] GLD18 v MHA [2020] FCAFC 2.
For all these reasons, the Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk the applicant will face significant harm, as defined in s 36(2A) of the Act if he is removed from Australia and returned to Fiji. The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is 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.
Date of hearing: 30 July 2025
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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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.
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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.
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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.
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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.
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36     Protection visas – criteria provided for by this Act
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(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.
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