Home | Databases | WorldLII | Search | Feedback Administrative Appeals Tribunal of Australia

You are here: 

2010994 (Refugee) [2024] AATA 1139 (4 January 2024)

Last Updated: 20 May 2024

2010994 (Refugee) [2024] AATA 1139 (4 January 2024)

DECISION RECORD

DIVISION: Migration & Refugee Division

CASE NUMBER: 2010994

COUNTRY OF REFERENCE: Fiji

MEMBER: Fraser Robertson

DATE: 4 January 2024

PLACE OF DECISION: Perth

DECISION: The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 04 January 2024 at 9:03am

CATCHWORDS
REFUGEE – protection visa – Fiji – mental health – victim of sexual abuse – anxiety about coups d’état – inconsistent evidence – credibility issues – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 424AA, 423A, 499
Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS
INTRODUCTION

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 June 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2. For these reasons, the decision under review should be affirmed.

BACKGROUND

3. The applicant is a [age]-year-old male, who last arrived in Australia in October 2013 as the holder of a visitor visa. The applicant applied for a protection visa on 18 February 2020 (PV Application).
4. The PV Application claimed, in summary, that:

(a) the applicant left Fiji because in Australia, he was able to openly discuss matters of national concern with others and criticise the Fijian Government openly without fear of someone reporting him to the Fijian Government;

(b) he was greatly affected by the military coup in 2006 and did not want to be a victim of the political upheaval that was happening in Fiji, which he claims had harmed him psychologically and mentally;

(c) if returned to Fiji, the applicant's basic human rights would be deprived, which would adversely affect his mental and physical health. He claimed that returning to Fiji would expose him to suicide;

(d) he had hoped that the "November election last year" (i.e. 2019) would have resulted in a change in government, but it was not the case and contributed to his depression and psychological problems;

(e) that he could not seek help or protection in Fiji because it was the government that was persecuting him, and non-governmental organisations could not help because they did not want to risk a bad relationship with the government;

(f) that he could not relocate to avoid harm and could not seek assistance from his relatives because if he did, "they [would] also be implicated";

(g) that the Fijian Government is taking away the rights of indigenous Fijians, which has a negative effect on them; and

(h) that whilst living in Australia his "aggression" is slowly going away and he is less stressed compared to his time in Fiji when he wanted to take his own life.

5. The applicant was not invited to attend an interview.

DELEGATE'S DECISION

6. On 23 June 2020, a delegate of the Minister for Home Affairs refused to grant the applicant a protection visa.
7. In refusing the applicant a protection visa, the delegate considered that:

(a) whilst the applicant claimed to hold views opposed to the (then) current Fijian Government, he did not indicate that he had a political or anti-government profile. The delegate noted that there was no evidence to suggest that the applicant was a high-profile public figure or a senior member of the opposition who would face a chance of harm from the Fijian Government;

(b) country information suggested that there was no official discrimination against indigenous Fijians and that the overwhelming majority of government services are centralised and provided on a non-discriminatory basis;

(c) they were not satisfied that the applicant would suffer harm because of his ethnicity (indigenous Fijian);

(d) largely free and generally effective health care was generally available in Fiji, including access to a free medicine scheme for low-income individuals under which antidepressant, anxiolytic, antipsychotic (for schizophrenia and related disorders) and bipolar disorder and mood stabilising drugs are available;

(e) the country information suggested that healthcare services would be available to the applicant on return to Fiji if he required them; and

(f) The applicant was not a person in respect to whom Australia owed protection obligations by reason of either ss 36(2)(a) or 36(2)(aa) of the Act.

REVIEW APPLICATION

8. The applicant applied to the Tribunal for review of the delegate's decision on 2 July 2020. The applicant provided a copy of the delegate's decision record and a copy of the notification of the refusal to the Tribunal.
9. The applicant was unrepresented in respect of the review application.

Hearing invitation and response

10. The applicant was invited to attend a hearing before the Tribunal on 13 December 2023 to give evidence and present arguments. The applicant was invited to provide any documents he intended to rely on to support his review application by 6 December 2023.
11. The applicant responded to the hearing invitation on 6 December 2023:

(a) providing a copy of his mother's death certificate; and

(b) requesting that the Tribunal take oral evidence from his father and his father's wife^[1].

Hearing

12. The applicant appeared before the Tribunal on 13 December 2023. A Fijian interpreter was available to assist the applicant. The applicant indicated that he intended only to use the interpreter if necessary. The hearing was conducted in English. The applicant did not require an interpreter during the hearing. From my observations, the applicant had no difficulty participating in the hearing without assistance from the interpreter.

RELEVANT LAW

13. A summary of the relevant law and an extract of key provisions of the Act is attached to this decision.
14. I have had regard to the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines' prepared by the Department of Home Affairs and the 20222 DFAT Report^[2] as directed.^[3]

ANALYSIS, FINDINGS AND REASONS

15. The issue in this application is whether the applicant meets the refugee criterion for protection contained in s 36(2)(a) or the complementary protection criterion contained in s 36(2)(aa) of the Act.

Consideration of the applicant's claims

16. Section 5AAA of the Act makes clear that it is the applicant's responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim.^[4] The Tribunal does not have any responsibility or obligation to specify, or assist an applicant in specifying, any particulars of their claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, their claims.
17. When assessing the claims made by an applicant, I am not required to uncritically accept any or all of the allegations made by an applicant.^[5] I do not need rebutting evidence before I can find that a particular factual assertion is not made out.^[6]

Assessment of credibility

18. In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of fact on relevant matters. The task of fact-finding may involve an assessment of an applicant's credibility.
19. Assessment of credibility is an inherently difficult task.^[7] Assessing the credibility and reliability of evidence given by asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably.^[8] Inconsistencies in an applicant's account may or may not be significant.^[9] I must assess the significance of any inconsistency found to exist, the weight to be given to it, and carefully consider whether there is an acceptable explanation for the inconsistency such that it should attract little if any weight.^[10]
20. I must be cautious when an account is given through an interpreter and in circumstances where a person may be distressed as they are fleeing persecution or facing the prospect of being returned to a country they fled to avoid persecution.^[11] I should give the benefit of the doubt to those who are generally credible but are unable to substantiate all of their claims.^[12] I am not required to uncritically accept any or all of the allegations made by an applicant.^[13] Any assessment of credibility I make must be legally reasonable.^[14]
21. I accept that the applicant gave truthful evidence about many uncontentious and independently verifiable matters. But for reasons I will expand on below, I did not regard the applicant's evidence as it related to his claims to be credible.
22. I regarded the applicant's father to be a generally credible witness. He was responsive to questions, answering them directly and without undue hesitation. He did not attempt to hide that his primary motivation is to ensure his son can stay in Australia.
23. The applicant’s second mother was generally credible, although I got a firm impression that she was quite a poor historian. It was unclear whether that was because she was nervous giving evidence. In those circumstances, I have some hesitation in considering her evidence to be reliable.

Country of nationality

24. The applicant claimed to be a national of the Republic of Fiji. The applicant travelled to Australia on a passport which appears to have been regularly issued by that country.
25. I am satisfied that the applicant is a Fijian national, as claimed. I find that Fiji is the applicant's country of nationality and the receiving country.

The applicant's personal background, evidence and claims

26. The applicant was born in [location] in Fiji, in [year]. He attended both primary and secondary school.
27. Shortly after finishing school, he worked as a [cashier]. The applicant left that role to work as a [Occupation 1], a position he undertook for two or three years. Around this time, the applicant started enquiring about travelling to Australia. He was 'let go' from that job because his employer considered he was taking too much time off from work to attend to matters relating to his visa application to Australia. The applicant explained that this visa application was refused, although he could not remember why. The applicant remains good friends with this person.
28. The applicant subsequently obtained employment in [Employer 1]. He worked in this role for a few months, leaving because he did not consider the job to be the right fit for him.
29. After departing [Employer 1], the applicant assisted his aunties working for an Australian family in Fiji. This led to the applicant being employed by the family as a caretaker. It was a full-time role. He was employed in this role for three years, losing the job because the family left Fiji when their work contract was not renewed.
30. The applicant then worked [in a factory] for a year before leaving that job to engage in subsistence farming on land owned by his Church, which his family were looking after. Whilst engaging in subsistence farming, the applicant completed [studies]. The applicant was later employed as a [manager].^[15]
31. The applicant left Fiji [in] October 2013. He claims that he "came to visit parents and sibling". He claims that his family paid for his airfare.
32. His PV Application claimed that he was unemployed between [October] 2013 and when he lodged his PV Application. He claims that his father supported him during this period.
33. The applicant lodged his protection visa application on 18 February 2020.

Applicant's relationship with his father

34. The applicant claims he grew up without his mother or father "in the picture". The applicant was named after his maternal grandfather's brother. The applicant claims that he had been told that his "namesake" told his mother to abort him, but she did not listen.
35. The applicant claimed that he understands that his mother took him to a different village when he was around two years old. He claims that his mother spent most of her life trying to ensure that he did not know who his father was and generally concealing their life from his father and his father's family. He claims that growing up, he did not know who his dad was, something which the applicant claims that his mother apologised for on her death bed. The applicant's mother died on 4 July 2008.
36. I asked the applicant about his contact with his father growing up. He claimed he had no contact with his father until receiving an unexpected phone call from a phone number starting "+614", which the applicant says he recognised as an Australian phone number. The person who had called was his second mum.
37. The applicant claimed that the Australian family that he was working for had managed to locate his father in Australia and provided him with the applicant's contact details. The applicant did not know how the family contacted his father.

Travel to Australia

38. The applicant travelled to Brisbane in 2008 on a tourist visa. He claimed that his Church pastor had arranged the travel for him and arranged for him to stay with a family in Australia. That family paid for the applicant's airfare. He claims that he went sightseeing, to Church gatherings and meetings and did a road trip to Sydney. He travelled back to Fiji from Sydney. The applicant said he returned to Fiji because he didn't know anybody. His clear evidence was that he did not know his father when he travelled to Australia in 2008.
39. A copy of the applicant's travel history was before the Tribunal. That travel history did not indicate that the applicant travelled to Australia before 2013. During the hearing, I put that information to the applicant as required by s 424AA of the Act. The applicant indicated he understood the information and why it was relevant to the review. The applicant claimed he travelled to Australia in 2008 under a different name, "[Alias 1, comprised of the applicant’s first and second name only]”. He claimed that he changed his name to include “[the applicant’s family name]" after establishing contact with his father.
40. I asked the applicant whether, before he travelled to Australia in 2013, he had applied for and been refused a visa under his former name, and he claimed that he had not. I am prepared to accept this as being true.
41. The applicant's travel to Australia in 2013 was paid for by his father and his second mum.

Time in Australia

42. When the applicant arrived in Australia in 2013, he arrived on a tourist visa. He obtained a 1-month extension to that visa. During this time, he saw a migration agent who advised him that he couldn't apply under his family's visa. The applicant claims that he went home and thought that was the end of the road. He claims that he mentally shut down for a bit but did not want to return to Fiji, so he continued to stay here.
43. The applicant claims that his father supported him but also undertook cash work as a labourer. He claims he would be paid between $500 and $800 per week, depending on whether he worked two or three days per week. He wasn't paying any bills at home, so his income was sufficient. He worked as a labourer until after he applied for his protection visa and got a bridging visa.
44. Following being granted a bridging visa, the applicant has worked as a [Occupation 2]. He works casually but usually 8 hours a day, five days a week. He presently has about $8,000 in savings.

Protection visa application

45. The applicant claims that around early 2020, he wanted an opportunity to "make things legal". He claims he spoke with [Ms A], who the applicant understood was a lawyer. He claims he contacted her through a family friend and paid her a couple of hundred dollars to file his protection visa application. The applicant claims that she said to him words to the effect of 'give me all the information, and I will fill it in'. The applicant claims he provided a copy of his CV, birth certificate, mother's death certificate and passport to [Ms A]. He claims that she also asked him about growing up in Fiji.
46. The protection visa application claimed that the applicant had not ever used another name.
47. The applicant claims that he spoke with her more than ten times, usually for a short time. I asked the applicant what he told [Ms A]. He told her he was scared about returning; he would go from one house to another and that people kept using him when he was in Fiji.
48. At the hearing, the applicant raised a new claim. The applicant claimed that when he was six years old, he was molested by a close family member. I asked the applicant who it was. He said one of his uncles. I asked the applicant for the uncle's name, and eventually, he nominated "[name]" or "[Mr B]" in Fijian. I asked the applicant what [Mr B] did. The applicant responded that he was "touching him in a certain way", and it involved "sexually". He claims that he thought it was normal because he was six years old. He claims that he later found out it was wrong in high school. I asked the applicant how he reacted when he found out it was wrong. He said he didn't know. He said that he didn't feel good under his skin and that when people tried to touch him, he felt disgusted with himself.
49. The applicant did not make this claim in his protection visa application.
50. The applicant did not report the abuse to the police. He claims that is because nobody listened to him, that there was no father figure in the house, and he didn't want to be an embarrassment. The applicant did not claim that [Mr B] would sexually abuse him if he were to be returned to Fiji.
51. The applicant claimed that he told his Pastor shortly after his mother passed away. The applicant claimed that at 3 AM one night, he was looking for something to use to end his own life when he heard a noise outside. When he went outside to check what the noise was, he discovered his Pastor outside. He claims that he broke down and told his Pastor about how he was feeling and that he had been "molested" when he was 6. The applicant claims that the Pastor did not ask for all the details but did ask who had abused him. The applicant claims he responded, "I am sorry, I can't. That person has a family and kids".
52. The applicant otherwise remembers that the night ended with the Pastor telling him, "Goodnight, I will see you in the morning" which gave him peace.
53. The applicant claims that he still has a good relationship with that Pastor and sends him money from time to time. He sent $150FJD shortly before the hearing, indicating it was about AUD$100. I asked the applicant why he had not sought that the Tribunal take evidence from his Pastor, and he claimed that he didn't think of that. I suggested to the applicant that I might conclude that the Pastor would not have corroborated his story. The applicant claimed that his Pastor did not know he was applying for a protection visa and was too scared to tell his Pastor that he was applying for a protection visa.
54. The applicant claims that [Ms A] was difficult to contact. He claims that she submitted his protection visa application, but he did not see the content of that application before it was lodged and has not seen the content of that application since.
55. In those circumstances, I discussed the content of the applicant's protection visa application with him. I asked the applicant what he expected would be included in his protection visa. He responded that he expected that what had happened back at home, including that he could not live comfortably, would be included. He claimed his experience of being bullied and pushed around would be included. He also indicated that he expected that seeing the person who sexually molested him would have been included.
56. I asked the applicant why he expected those things to be in his protection visa application, and he said that because there were the things that he was comfortable with, they represented "a genuine side of me" and were the main reasons that he couldn't go back to Fiji.
57. The applicant claimed that he did not tell [Ms A] about being sexually abused in Fiji. He explained that this was because he did not want to disclose this abuse in front of his father and his second mum, who were present when he was explaining his claims to [Ms A].
58. When I asked the applicant why it was that he expected that his claims about seeing the person who had sexually abused him would have been included in his protection visa application when he also claimed that he did not tell [Ms A] about those claims, the applicant became unsettled and fumbled over his words before avoiding the question and referring to having received an approval for his bridging visa.
59. I discussed the claims made in the protection visa application with the applicant. The applicant indicated, relevantly, that:

(a) he did not, and does not, claim to fear harm in Fiji from the government or on account of his political opinion;

(b) he did not, and does not, claim to fear harm in Fiji because of his ethnicity or because he is an indigenous Fijian;

(c) he did not, and does not, make any claims to fear harm based on suppression of indigenous land rights in Fiji;

(d) he did not, and does not, claim that his "Basic Human Rights" would be infringed. He claimed that he did not even know what the phrase "Basic Human Rights" was as it was used in his protection visa application;

(e) he was previously harmed financially and mentally by the coup in 2006. The financial harm was because his employer closed his workplace for a couple of weeks or a month. The mental harm was because he was "on edge" and "fearful" whilst the coup was occuring;

(f) he agreed that the prospect of any further coup was remote, and that Fiji had been stable since 2006;

(g) he did claim that his mental health improved when he arrived in Australia and that if he were returned to Fiji, his mental health would deteriorate;

(h) he did claim that his mental health would suffer because he would be reminded of being mistreated by his relatives, the sexual abuse he suffered and because life in Fiji is depressing;

(i) he is worried about starting from "square one", and the cost of living in Fiji has gone up; and

(j) he has not been to counselling either in Fiji or Australia, the reference to having obtained and benefited from counselling in his protection visa application was not accurate.

Lodgement of the protection visa application

60. The protection visa application indicates that it was submitted by the username "[Alias 1 Year 1]". As to this account, the applicant's evidence was in substance that:

(a) he had created an account with the username "[Alias 1 Year 1]";

(b) the account was linked to his email address;

(c) he had not provided his password to anyone else;

(d) he received an email on 18 February 2020 acknowledging that he had lodged a protection visa application; and

(e) he received a copy of the delegate's decision at his email address.

61. I also note that [Alias 1] is the name the applicant formerly used to travel to Australia, and [Year 1] is the year of his birth. In those circumstances, I asked the applicant to explain to me how it was that [Ms A] managed to lodge a protection visa application using his Immigration account. The applicant responded that he didn't know.
62. I consider that, in all the circumstances, it is implausible that [Ms A] lodged the applicant's protection visa application using the applicant's account. It is much more plausible, and I find, that the applicant lodged his protection visa application, although he perhaps had assistance from [Ms A] in that regard. I am not satisfied that [Ms A] lodged the application or that she concealed the content of that application from the applicant.
63. I note, however, that the applicant did not claim that [Mr B] would sexually abuse him if he were to be returned to Fiji. The applicant did not claim to fear any future harm from [Mr B], other than the mental harm that he would suffer from being reminded of his past mistreatment by [Mr B].

Sexual abuse claims

64. I explained to the applicant the effect of s 423A of the Act and asked the applicant whether he had a reasonable explanation for not advancing his claims in relation to [Mr B] earlier.
65. The explanation offered by the applicant was that he did not submit his protection visa application and was fearful of telling [Ms A] of that part of his claims because his father and second mum were present when he was discussing his claims with [Ms A].
66. For the reasons which I set out below, I am satisfied that the applicant does not have a reasonable explanation for why this claim was not raised and the associated evidence was not presented before the delegate made their decision. As such, I am required to – and do – draw an inference adverse to the credibility of this claim.

Bridging visa

67. As required by s 424AA of the Act, I put to the applicant that his bridging visa application claimed that he was financially supported by his father and did not mention having worked in Australia. That was inconsistent with his evidence about having worked in Australia. I explained that his apparent willingness to make false statements in his bridging visa application may cause me to doubt that he is truthful in his visa applications. I explained that he could seek additional time to respond.
68. The applicant indicated that he understood this information and why it was relevant to the review. He did not seek additional time to respond to this information. The applicant did not directly respond to the representation made in his bridging visa application. That was, perhaps, unsurprising because earlier in the hearing the applicant had conceded that he had worked unlawfully and knowingly doing so. In the circumstances, I don't propose to attach any weight to the misrepresentation in the bridging visa application.

Request to obtain evidence from witnesses

69. The applicant requested that the Tribunal take evidence from his father and his second mum. After hearing from the applicant, I acceded to that request. The applicant remained in the hearing room when both his father and his second mum gave evidence.

The applicant's father

70. The applicant's father gave evidence that he met the applicant's mother early in his life. He left for Australia around 1989. The father claimed that he heard that his son was being pushed from house to house, and when his mother passed away, he intended to bring him to Australia so that he could have a better life.
71. The father's evidence was that he would speak to his son by phone when he was in Fiji. That started a long time before he came to Australia. When I asked the father about his contact with his son throughout his life, he claimed that he had always been in touch, but it was hard because before mobile phones were common, he would have to arrange to call on a public telephone. He claimed that he would make those arrangements and speak to his son about once a month. I asked whether he was speaking to his son whilst he was in high school, and the father emphatically answered "Yes". He also claimed that he sent money to the applicant.
72. The father's evidence was that he communicated with his son even when he travelled to Australia in 2008. His evidence was that his son had attended a religious "seminar or something". I asked the father about his son's return to Fiji, and the father's evidence was that he told his son that he had to go back and that he, the father, would try to bring the applicant to Australia himself.
73. The applicant's father claimed that the applicant couldn't go back to Fiji because he would be pushed from one house to another and be homeless. The father claimed that he had adapted to Australia's lifestyle and the income he receives here. He was worried that if his son no longer had the same income, he would turn to crime and end up in prison.
74. The applicant's father claimed that he was skinny when he arrived in Australia. The applicant's father says he gave him a bed, and his son claimed he had never slept in a bed for a long time.
75. The applicant's father indicated that his son had not spoken to her about wanting to obtain medical treatment here in Australia. I asked the applicant's father whether he had ever been with the applicant when he had talked to [Ms A]. The father's evidence was that he was not present. He explained that he usually worked "up north" on "the mines".
76. The applicant's father claimed he was [age] now and needed his son in Australia to look after him.

The father's wife

77. The applicant’s second mum gives evidence that they commenced their relationship when they both lived in Sydney during the 90s. She could not be more specific than that the relationship started in the 90s. She first learned about the applicant's existence after her children were born.
78. She claims that the contact between the applicant and his father began when the applicant attended a conference in Brisbane. She claimed that the conference involved people from their Church, and at that conference, people involved in their Church gave the applicant his father's phone number.
79. The applicant’s second mum could not tell me when she first spoke to the applicant. Her evidence was that the applicant had not spoken to her about why he could not return to Fiji. Her evidence was that he did tell her about his life in Fiji and gave evidence that he had told her that "jobs there are not good," adding that she didn't know how he would survive there.
80. The applicant’s second mum gave evidence that she was not present when the applicant was discussing his protection visa application with [Ms A].

Consequence of the witness evidence

81. I put the evidence of the applicant's father and his second mum to the applicant as required by s 424AA of the Act. The applicant indicated that he understood the information being put to him and why it was relevant to the review application. I explained that he could seek additional time to respond. He did not seek additional time to respond and was prepared to respond immediately.
82. The applicant claimed that his father was confused. He claimed that his father was confusing him with another half-brother. The applicant submitted that the evidence given by his second mum was accurate. The applicant did not address their evidence that they were not present whilst the applicant discussed his claims with [Ms A].
83. I have difficulty because three narratives were presented surrounding the communication between the applicant and his father. Those narratives are broadly:

(a) the applicant's evidence that he did not know where his father was, it was the family that employed him in Fiji who had located his father and provided a phone number to him, resulting in the applicant receiving, somewhat unexpectedly, the 'first call' from his father;

(b) the applicant's father claimed that they had always been in touch, including during his son's childhood and schooling; and

(c) the applicant’s second mum claimed that a Church event in Brisbane resulted in the applicant being provided with his father's phone number and the applicant calling his father.

84. The time-period involved in the applicant's narrative and the narrative of his second mum is broadly consistent. Otherwise, all accounts are quite markedly different. Having seen all of the witnesses give evidence, I consider that the most credible and reliable account was that of the applicant's father. I accept his evidence in this regard.

CLAIM: ECONOMIC CLAIMS

Country information

85. The World Bank defines Fiji as an upper-middle-income country.^[16] The World Bank's lead economist for the Pacific estimates that GDP growth rates are expected to exceed pre-pandemic levels in 2024.^[17] Most Fijians are employed in the informal sector, particularly in the tourism, agriculture and aquaculture industries.^[18]
86. There is limited social welfare in Fiji.^[19] One social welfare program, the Poverty Benefit Scheme provides a monthly payment of FJD 35 ($23 AUD) per adult and FJD 17 ($11 AUD) per child for up to four household members and a FJD 50 ($430 AUD) food voucher.^[20] Fijian culture places importance on kinship and familial support.^[21]
87. In 2022, the overall unemployment rate was 4.3 per cent (down from a peak of 4.9 per cent in 2021).^[22]
88. In 2022, DFAT reported that the minimum wage was FDJ 2.68 ($1.75 AUD) per hour^[23], which does not typically provide a decent standard of living for a worker and their family.^[24] A significant part of the Fijian population lives in poverty.^[25] However, subsistence farming and kin-based wealth distribution lead to lower rates of extreme poverty than might otherwise be expected.^[26]
89. Country information indicates that Fiji's minimum wage has increased since DFAT reported from FDJ 2.268 to FDJ 4.0.^[27] Credible country information further suggests that there is mounting pressure for the minimum wage to be further increased, between FDJ 6.0 and FDJ 7.0.^[28] The Fiji Trades Union Congress argues that a FJD 7.0 minimum wage will meet the cost of living for Fijians.^[29] The incumbent Prime Minister has described the minimum wage review as "imminent".^[30]
90. Indigenous Fijians are the majority ethnic group in Fiji and enjoy significant social, economic and political capital. DFAT assesses there is no official discrimination against indigenous Fijians.^[31] Some indigenous Fijians feel a sense of economic or political marginalisation.^[32] They are more likely to experience poverty than are Indo-Fijians, but there are rich and poor among both groups.^[33]

Resolution

91. I asked the applicant whether he could get a job in Fiji. He claimed that he did not know. I asked why it would be that he wouldn't be able to get a job. He agreed that it would result from the general economic circumstances in Fiji and not because of his race, religion, nationality, membership of a particular social group or political opinion.
92. The applicant claimed that wages were lower in Fiji. He referred to earning FJD 1.6 an hour as a cashier. I put to the applicant that it was more than 16 years ago, and he agreed. The applicant said he thought he might get paid FJD 3.0^[34] an hour. The applicant agreed that whilst wages are lower in Fiji than in Australia, the cost of living is also lower in Fiji than in Australia.
93. The applicant has been consistently able to obtain employment in Fiji. He was willing and able to leave employment that he did not consider was the 'right fit' for him. He would be returning to Fiji with additional experience in building and construction from Australia. I am satisfied that he could obtain employment commensurate with his skills and experience if he returned to Fiji.
94. Country information also indicates that a labourer will typically earn about FJD 1,240.00 per month,^[35] equating to an hourly rate of about FJD 7.75. As noted above, credible country information suggests that an hourly rate of above FJD 7.0 will be sufficient to meet the cost of living.
95. The applicant has AUD$8,000 in savings. Using the conversion quoted by the applicant, that would be about FJD 12,000, or slightly less than 10 months of a typical labourer's salary. I consider that those funds would help him re-establish himself in Fiji.
96. The applicant claimed that he would be expected to give money to his family if he was in Fiji. I put to the applicant that he could refuse. The applicant resisted that proposition, claiming that he was the sort of person who wanted to help, so it would be hard for him to refuse.
97. I am not satisfied that if the applicant were to provide financial assistance to others in Fiji that it would result in his capacity to subsist being threatened. Further, I find that the applicant could refuse to provide money to family in Fiji and it would be reasonable for him to do so. I am not satisfied that requiring the applicant not to fund others would be a modification that is prohibited by s 5J(3) of the Act.
98. Insofar as the applicant's economic circumstances might be harmed by his provision of financial support to others, the applicant has not satisfied me that such support would mean that he would face a real chance of serious harm, now or in the foreseeable future, in Fiji.
99. I am satisfied that the applicant does not wish to return to Fiji. That desire is motivated, at least in part, because he can earn more money and have a higher standard of living in Australia. However, I am not satisfied that the applicant capacity to subsist would be threatened in any way in Fiji now or in the reasonably foreseeable future. I am not satisfied that the applicant faces a real chance of serious harm on account of the economic circumstances he would experience in Fiji.
100. Moreover, even if I were wrong in that regard, I am satisfied that any harm would not be for the essential and significant reason of his race, religion, nationality, membership of a particular social group or political opinion but for the essential and significant reason of his own decision.
101. I am not satisfied that in all the circumstances that:

(a) the economic circumstances in Fiji or the applicant's personal economic circumstances in Fiji would, on the applicant's return, result in him facing a real chance of serious harm;

(b) the economic circumstances and any harm that they might cause would apply to the applicant for the essential and significant reason of his race, religion, nationality, membership of a particular social group or political opinion; and

(c) the economic circumstances in Fiji would involve systematic and discriminatory conduct.

102. I am not satisfied that the applicant has a well-founded fear of persecution in Fiji based on the economic circumstances of that country. The applicant is not a refugee on the basis of these claims.

Claim: effects of coups d’état

103. The applicant abandoned any claimed fear of harm based on his political opinion. Still, as he claimed to have suffered harm, including psychological harm, because of the coup d’état in 2006, I have considered this claim.

Country Information

104. Fiji has a history of coups d’état. Fiji gained independence from the United Kingdom in 1970.^[36] In 1987, following widespread protests among the indigenous Fijians, there was a coup d’état within weeks of an election.^[37] Another coup d’état in the following weeks resulted in the dismissal of the Governor-General and the declaration that Fiji was a republic.^[38]
105. Another coup d’état occurred in 2000. That resulted in the government being held hostage for 56 days, with various ethnic Indian-Fijian businesses being burned down and looted.^[39] The coup d’état was led in the name of indigenous rights.^[40] The leader of the coup was charged with treason.^[41] He was found guilty and sentenced to death. That sentence was commuted to life imprisonment, which he continues to serve.^[42]
106. The last coup d’état occurred in Fiji in 2006, led by former Frank Bainimarama. Bainimarama was later installed as Prime Minister. Bainimarama's FijiFirst party then won the 2014 and 2018 elections. Both elections were judged credible by the Multinational Observer Group led by Australia.^[43] DFAT reports that it understands that DFAT that the 2006 coup may be a sensitive topic but is unaware of a related pattern of violence or discrimination in relation to it.^[44]
107. Fiji has not had a coup d’état for the last 17 years. DFAT assesses that:

     Although the military is an active and visible presence in Fiji they are unlikely to hinder the day-to-day activities of most Fijians. The various coups d’état (see Recent history) are in the living memory of many Fijians and this contributes to fear and suspicion of the army in some quarters, but DFAT assesses that these fears are not factors in the day-to-day lives of most Fijians. Conversely, many Fijians hold the RFMF in high esteem because of their disaster relief efforts and strong traditions of service within families, for example. There is no conscription in Fiji: people join the military voluntarily.

108. In May 2022, DFAT assessed that politics in Fiji today is no longer characterised by the unrest of the past^[45] and that the 2018 election was calm and orderly. International observers considered the election to be credible and the outcome 'broadly represented the will of Fijian voters'.^[46] While SODELPA leader (and 1987 coup leader) Sitiveni Rabuka was charged with corruption offences in the lead-up to the 2018 election, he was released on bail and later cleared.^[47] Sitiveni Rabuka is the current prime minister.
109. Fiji had a general election in December 2022. As to the present political situation, DFAT reports that:^[48]

(a) following the December 2022 Fijian general election, no political party won a clear majority of seats in Parliament to form government. After ten days of inter-party negotiations, a coalition of three parties (The People's Alliance, National Federation Party and Social Democratic Liberal Party), led by Prime Minister Sitiveni Rabuka, formed government;

(b) it is unaware of any reports of former Prime Minister Bainimarama or those loyal to him or his party pursuing nationals who publicly opposed him or his party since the change of government in December 2022;

(c) it is unaware of any reports of the Republic of Fiji Military Forces pursuing nationals who publicly opposed former Prime Minister Bainimarama or his party since the change of government in December 2022; and

(d) It is not aware of any credible reports that the new government in Fiji has harassed or ill-treated any supporters of former Prime Minister Bainimarama.

110. I note that in May 2023, members of the FijiFirst party were suspended from Parliament and lost their entitlement to vote.^[49] This prompted some concern about the possibility of a coup.^[50] The commander of Fiji's military dismissed the prospect of another coup d’état.^[51] Additionally, once the FijiFirst party had complied with the requirements of the Political Parties (Registration, Conduct, Funding and Disclosures) Act 2013, the suspension was lifted on 9 June 2023.^[52]

Consideration

111. The above country information is consistent with the applicant's concession at the hearing that Fiji is generally stable, and the prospect of a coup d’état is remote. The above country information satisfies me that the possibility of a coup d’état now, or in the reasonably foreseeable future, is remote.
112. The applicant does not claim that he would be targeted during or following any coup d’état. Instead, the harm that he has experienced and the harm that he fears is generalised and result from uncertainty caused by a coup d’état rather than being a direct result of it.
113. In all the circumstances, I am not satisfied that any harm to the applicant, whether physical or mental, on account of a coup d’état or fear of a future or impending coup, now or in the reasonably foreseeable future:

(a) would be for the essential and significant reason of his race, religion, nationality, membership of a particular social group or political opinion;

(b) would involve a real chance of serious harm to the applicant; or

(c) would involve systematic and discriminatory conduct.

114. The applicant does not have a well-founded fear of persecution based on his experience of, and future fear of, coups.

Claim: Mental Health

115. The applicant claims to have suffered from psychological harm and mental illness in Fiji. He claims that he will suffer psychological harm if he were to be returned to Fiji. The basis for that harm has both prospective and historic aspects to it. They can be summarised as follows:

(a) the claimed past mistreatment by family and feared future mistreatment by family;

(b) the claimed sexual abuse perpetrated against the applicant and the feared future contact with the perpetrator;

(c) the claimed depressing nature of life in Fiji, including uncertainty of living arrangements and financial difficulties, and the fear of being returned to that life;

(d) the separation from his immediate family living in Australia;

(e) being accustomed to life in Australia; and

(f) the claimed psychological effect of being returned to a place that reminds the applicant of a time when his psychological state was poor, and he contemplated taking his own life.

Country Information – health care

116. Country information suggests that mental health care is available through the public health system, although most people are cared for at home.^[53] Mental health care through the public system is free.^[54] Patients usually pay nothing at the point of service for care or medications.^[55] Care availability varies between locations, and mental health services are lacking in more remote areas.^[56] Fiji has a psychiatric facility (St. Giles Psychiatric Hospital in Suva) and four mental health outpatient facilities attached to other hospitals.^[57] Three units in general hospitals provide inpatient mental health care.^[58] Even so, facilities and treatment options at St. Giles are basic, and medication may not be available.^[59]
117. In August 2023, the Fijian Ministry of Health reported that almost 75 per cent of people with mental illness report that they experience stigma.^[60] That stigma appears to have developed from Fiji's past model of care involving psychiatric hospitalisation and a notion that mental health conditions could not be managed within the community.^[61] Steps have been taken to shift that historical approach, with mental health now included in a holistic, population-based health care delivery.^[62] Doctors in Fiji are working to fight the stigma surrounding mental health.^[63]
118. DFAT further assesses that Fiji has a vibrant human rights NGO scene relative to its small size. NGOs include those linked to women's rights, trade unions, environmental activism, religious organisations and health services.^[64] DFAT understands that those NGOs generally operate freely without political inference.^[65]

Consideration

119. The applicant did not put any medical evidence before the Tribunal. The applicant has never sought treatment for his psychological condition, either in Fiji or Australia. He claimed that mental health was not talked about in Fiji, which was why he didn't seek treatment. That claim generally reflects country information, and I accept it is plausible. He also claimed that he is reluctant to talk to people who are of the same ethnicity as him about mental health.
120. The applicant claimed he did not access services in Australia because he was not entitled to Medicare. He claims he went to the doctor previously but had to pay because he didn't have a Medicare card. I suggested he could have sought a Medicare letter from the Tribunal but had not. He claimed that he did not know that was possible.
121. I put to him that he could have sought counselling and paid for it himself. I asked the applicant why he hadn't accessed online counselling. He responded that he would listen to podcasts. I asked which podcasts, and he cited a podcast by "Jordan Petersen" and referred to having learned about the importance of making your bed in the morning from that podcast.
122. The applicant claimed that he would seek counselling if granted a protection visa.
123. Other than referring to suicidal ideation, the applicant did not present a credible account of a person who had suffered or was suffering, from psychological harm and of whom there would be a real chance that, if returned to Fiji, would suffer serious harm in the form of psychological harm.
124. When I asked who would cause him psychological harm, he claimed that his family would say things to him, for example, that he had been born on a roadside. The applicant said those statements would affect him. When pressed, the applicant accepted that his family would not intentionally seek to cause him psychological harm. He also agreed that no person would seek to cause him psychological harm intentionally. He did not claim that [Mr B] would seek to harm him either sexually or mentally if he were to return to Fiji.
125. I asked the applicant how he knew that he was experiencing psychological harm and that he wasn't just experiencing strong emotions. He did not directly respond but claimed that he would just shut himself off and build up a wall around himself. He described that as his method of self-defending to feel safe.
126. I am not satisfied that the applicant would face any harm having become 'accustomed' to life in Australia. I do not doubt that being unable to live in Australia will likely be upsetting and perhaps distressing for the applicant.
127. I also note that country information suggests that treatment is available for the applicant if he were to suffer from a deterioration in his psychological condition if he were returned to Fiji. I am not satisfied that the applicant could not access that treatment. The general reluctance by the applicant to access mental health care provided by people of the same ethnicity as him does not mean that treatment is not available or that he cannot access it.
128. The applicant claims that he was sexually abused as a child by an uncle, whose conduct psychologically harmed him as a result. For reasons that I have already explained, I am required to draw an inference unfavourable to the credibility of the sexual abuse claim and the evidence, and I do so.
129. That said, it is not strictly necessary to resolve whether the applicant was sexually abused, as he claims, to determine this application. That is because, even if I were to assume that it occurred as claimed, I am not satisfied that:

(a) the applicant faces a real chance of serious harm now or in the reasonably foreseeable future from [Mr B];

(b) assuming there were a real chance that the applicant would suffer mental harm in Fiji, now or in the reasonably foreseeable future, because of his past experiences, the effects of returning to Fiji (including if he were to see [Mr B]), that harm would not:

(i) be for the essential and significant reason of his race, religion, nationality, membership of a particular social group or political opinion; or

(ii) involve systematic and discriminatory conduct.^[66]

130. In those circumstances, the applicant does not, and cannot, have a well-founded fear of persecution within the meaning of s 5J of the Act.

Does the applicant meet the refugee criterion?

131. For the above reasons, I am not satisfied that the applicant has a well-founded fear of persecution within the meaning of s 5J(1) of the Act. In those circumstances, I need not determine whether s 5J(2) or (3) applies to the applicant.^[67]
132. I have also considered the applicant's claims cumulatively. The applicant did not claim that his psychological condition had ever prevented him from participating in employment. I do not consider that the applicant's economic claims, considered with his mental health claims, would lead me to be satisfied that the applicant has a well-founded fear of persecution within the meaning of s 5J. Otherwise, there is no feature of any of the above claims that, when considered cumulatively with one or more or all the other claims, would lead me to be satisfied that the applicant has a well-founded fear of persecution within the meaning of s 5J.
133. For the above reasons, I am not satisfied that the applicant is a refugee within the meaning of s 5H(1) of the Act. The applicant does not meet the criterion in s 36(2)(a) of the Act.

Does the applicant meet the complementary protection criterion?

134. Having determined that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, I have considered the alternative criterion in s 36(2)(aa).
135. To be entitled to complimentary protection, there must be 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 they will suffer significant harm.^[68] The 'real risk' test imposes the same standard as the 'real chance' test applicable to the assessment of 'well-founded fear'.^[69]
136. Section 36(2A) of the Act exhaustively defines 'significant harm'.^[70] Sections 36(2A)(d) and (e) deal with significant harm comprised of "cruel or inhuman treatment or punishment" or "degrading treatment or punishment". In that regard, "cruel or inhuman treatment or punishment" means:

(a) an act or omission by which, among other things, "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".

137. The remaining type of significant harm, "degrading treatment or punishment", is defined as "an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable".
138. The removal of an applicant from Australia cannot itself be significant harm, nor can removal be the act against which an applicant is to be protected.^[71] Significant harm does not include self-harm or harm the applicant suffers arising from a mental illness where such harm arises because of the applicant's removal to their home country and not due to harm intentionally inflicted on an applicant by 'others'.^[72]
139. I have already made relevant findings above, which I do not propose to repeat.^[73]
140. The applicant is not entitled to complimentary protection. The short reasons for that are I am not satisfied that there are substantial grounds for believing that there is a real risk that:

(a) [Mr B] would seek to harm the applicant if he were to return to Fiji;

(b) the economic conditions and circumstances in Fiji that the applicant will, or might, experience would constitute significant harm^[74] or would otherwise involve an act or omission by another person;^[75]

(c) any mental or psychological harm which the applicant might experience on return to Fiji, for any reason, would constitute significant harm^[76], would result from the "necessary and foreseeable consequence" of the applicant's removal to Fiji or would be caused by an intentional act or omission by another person;

(d) the applicant would suffer significant harm if there were a future coup d’état or that such harm would be a "necessary and foreseeable consequence" of the applicant's removal to Fiji.

Conclusion: complimentary protection criterion

141. For these reasons, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that he will suffer significant harm.
142. The applicant is not a person in respect of whom Australia has protection obligations pursuant to s 36(2)(aa) of the Act.

CONCLUSION

143. The applicant is not a person in respect of whom Australia has protection obligations under the refugee criterion in s 36(2)(a).
144. I have considered the alternative criterion in s 36(2)(aa). The applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa).
145. There is no suggestion that the applicant satisfies s 36(2) based on 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. The applicant therefore does not satisfy the criterion in s 36(2).

DECISION

146. I affirm the decision not to grant the applicant a protection visa.

Fraser Robertson
Member

ATTACHMENT - RELEVANT LAW

Criteria for the grant of a protection visa

1. 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).
2. An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, they are a person in respect of whom Australia has protection obligations either:

(a) under the ‘refugee’ criterion in s 36(2)(a);

(b) on other ‘complementary protection’ grounds; or

(c) because they are a member of the same family unit as such a person and that person holds a protection visa of the same class.

3. 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.
4. 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.^[77]
5. A person has a well-founded fear of persecution if:^[78]

(a) they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion (refugee nexus);

(b) on return to the country of their nationality, there is a real chance they would be persecuted for one or more of those reasons; and

(c) the real chance of persecution relates to all areas of the relevant country.

6. A ‘real chance’ is one that is not ‘remote’ or ‘far-fetched’ and can arise even when the probability of harm occurring is less than 50%.^[79]
7. If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a),^[80] that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution.^[81] Further, the persecution must involve serious harm to the person^[82] and systematic and discriminatory conduct.^[83]
8. 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–5LA, which are extracted in the attachment to this decision.
9. If a person is found not to meet the ‘refugee criterion’ in s 36(2)(a), they may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (the ‘complementary protection criterion’).^[84]
10. The ‘real risk’ test imposes the same standard as the ‘real chance’ test.^[85]
11. 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.
12. Relevantly, ‘significant harm’ for these purposes is exhaustively defined in s 36(2A).^[86] A person will suffer significant harm if they will:

(a) be arbitrarily deprived of their life;

(b) have the death penalty carried out on them;

(c) be subjected to torture;

(d) be subjected to cruel or inhuman treatment or punishment; or

(e) be subjected to degrading treatment or punishment.

13. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’ and ‘torture’ are defined in s 5(1) of the Act. Those definitions are set out in full in the attachment to this decision.
14. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country.^[87] These arise where:

(a) it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm;

(b) the applicant could obtain, from an authority of the country, protection such that there would not be a real risk^[88] that the applicant 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 applicant personally.

15. The term ‘population of the country generally’ refers to the commonly understood concept of the general population, such that there is no requirement that the risk be faced by all members or every citizen of a country’s population for s 36(2B)(c) to apply.^[89]
16. Section 36(2B)(c) will apply where a real risk is faced by an individual applicant, but is the same as the risk faced by the general population. However, s 36(2B)(c) requires a decision-maker to determine whether the risk faced by an applicant is a risk faced by the population of the country generally, not to the population in a particular area of the country such as a particular city or province.

Mandatory considerations

17. I must take 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.^[90]

^[1] The applicant referred to his father’s wife as his “second mum”. For clarity, I will refer to her the same way or as his 'second mother'.

^[2] 'DFAT Country Information Report Fiji', Department of Foreign Affairs and Trade, 20 May 2022, 20220520095336 (2022 DFAT Report).

^[3] See Migration Act 1958 (Cth), s 499, together with Ministerial Direction No.84 made under that section.

^[4] AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227, [43] (Kenny, Griffiths and Mortimer JJ); EIG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 804 at [148] (Ladhams J).

^[5] SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816 (Middleton J).

^[6] CQG15 v Minister for Immigration and Border Protection [2016] FCAFC 146; 253 FCR 496 at [65] (McKerracher, Griffiths and Rangiah JJ); Selvadurai v Minister of Immigration and Ethnic Affairs and J Good (Member of the Refugee Review Tribunal) [1994] FCA 301; 34 ALR 347 at [7] (Heerey J).

^[7] See Fox v Percy [2003] HCA 22; 214 CLR 118 at [31] citing with approval the reasons of Samuels JA in Trawl Industries v Effem Foods Pty Ltd (1992) 27 NSWLR 326 at 348 and the material there cited.

^[8] See AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 at [22]–[28] (Kenny, Griffiths and Mortimer JJ).

^[9] ASB17 v Minister for Home Affairs [2019] FCAFC 38; (2019) 268 FCR 271 at [39]–[45] (Griffiths, Mortimer and Steward JJ).

^[10] AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 361 ALR 227 at [28] (Kenny, Griffiths and Mortimer JJ); approved in Kaur v Minister for Immigration and Border Protection [2019] FCAFC 53; 269 FCR 464 at [180] (Murphy, Mortimer and O’Callaghan JJ).

^[11] See, for example, Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76 at [5] (Burchett J), W375/01A v Minister for Immigration and Multicultural Affairs [2002] FCAFC 89; 67 ALD 757 at [15]–[19] (Lee, Carr and Finkelstein JJ); AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133; 266 FCR 83 at [22]–[28] (Kenny, Griffiths and Mortimer JJ) and ASB17 v Minister for Home Affairs [2019] FCAFC 38; 268 FCR 271 at [39]–[45] (Griffiths, Mortimer and Steward JJ).

^[12] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437; see also Department of Home Affairs, ‘Policy – Refugee and Humanitarian – The Protection Visa Processing Guidelines’, section 15.6, as re-issued 1 January 2023 (Protection Visa Processing Guidelines); UN High Commissioner for Refugees (UNHCR), Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, April 2019, HCR/1P/4/ENG/REV. 4 at [203]–[204].

^[13] SZLVZ v Minister for Immigration and Citizenship [2008] FCA 1816 (Middleton J).

^[14] BEH15 v Minister for Immigration and Border Protection [2019] FCAFC 184 at [32]–[34] (Rangiah, Perry and Bromwich JJ); see also the discussion in SZVAP and Minister for Immigration and Border Protection [2015] FCA 1089 (Flick J).

^[15] PV Application, page 13.

^[16] 2022 DFAT Report, [2.7].

^[17] ‘COVID-19’s impact on Fiji’, The Borgen Project, 26 March 2023, 20230712121717.

^[18] 2022 DFAT Report, [2.18].

^[19] See generally, ‘Social assistance policy: protecting the poor and vulnerable’, United Nations Women, undated, 20230712122715.

^[20] Social assistance policy: protecting the poor and vulnerable’, United Nations Women, undated, accessed 9 June 2023, p.9, 20230712122715.

^[21] 2022 DFAT Report, [2.23].

^[22] ‘Unemployment, total (% of total labor force)’, The World Bank, undated, 20230712125355.

^[23] 2022 DFAT Report, [2.19].

^[24] ‘Country Reports on Human Rights Practices for 2022 - Fiji', US Department of State, 20 March 2023, pg 25, 20230322095436.

^[25] 2019-20 Household Income and Expenditure Survey', Fiji Bureau of Statistics, August 2021 pgs IX & 8, 20210916140700; 'FY2021-FY2024 Country Partnership Framework for Republic of Fiji', World Bank Group, 17 December 2020, pg18 at [27] and fig. 1, 20220131073347; ‘World Bank Statement: Update on Fiji 2019-2020 Household Income and Expenditure Survey’, The World Bank, 20230712122405.

^[26] 2022 DFAT Report, [2.9].

^[27] See ‘Calls made for minimum wage review’, FBC News, 21 April 2013 https://www.fbcnews.com.fj/news/calls-made-for-minimum-wage-review/

^[28] See ‘We are looking at anywhere between $6 to $7/hr for minimum wage’, 23 September 2023, FijiVillage, https://www.fijivillage.com/feature/We-are-looking-at-anywhere-between-6-to-7hr-for-minimum-wage-Felix-Anthony-8x5f4r/ ;

^[29] See ‘7 dollars minimum wage rate will meet cost of living’, FijiOne News, 23 September 2023, https://fijionenews.com.fj/7-dollars-minimum-wage-rate-will-meet-cost-of-living/

^[30] See ‘PM: Review of minimum wage rate imminent’, The Fiji Times, 3 November 2023, https://www.fijitimes.com.fj/pm-review-of-minimum-wage-rate-imminent/

^[31] 2022 DFAT Report, [3.10].

^[32] 2022 DFAT Report, [3.9].

^[33] 2022 DFAT Report, [3.9].

^[34] About AUD$2 per hour, based on the rate quoted by the applicant in relation to the money sent to his Pastor shortly before the hearing.

^[35] See https://www.salaryexplorer.com/average-salary-wage-comparison-fiji-labourer-c72j10604.

^[36] 2022 DFAT Report, [2.1].

^[37] 2022 DFAT Report, [2.2].

^[38] 2022 DFAT Report, [2.3].

^[39] 2022 DFAT Report, [2.3].

^[40] See 'Fijian soldiers arrest Speight.', 27 July 2000, CX43775.

^[41] See 'Speight charged with treason', 12 August 2000, CX43777.

^[42] See 'History’s Shadow Looms Over Fiji', Diplomat, The, 02 February 2023, 20230605132913.

^[43] 2022 DFAT Report, [2.4].

^[44] 2022 DFAT Report, [3.41].

^[45] 2022 DFAT Report, [3.32].

^[46] 2022 DFAT Report, [3.32].

^[47] 2022 DFAT Report, [3.34].

^[48] See 'Fiji 20230621135833 - Country Information - Political Update', Department of Foreign Affairs and Trade, 02 August 2023, 20230803112036.

^[49] See https://www.parliament.gov.fj/advisory-fijifirst-party-suspension/

^[50] See https://www.aspistrategist.org.au/coups-and-rumours-of-coups-in-fiji/

^[51] See ‘Fiji military chief dismisses suggestions of a coup’, RNZ Pacific, 20 July 2023, accessible at https://www.rnz.co.nz/international/pacific-news/494112/fiji-military-chief-dismisses-suggestions-of-a-coup

^[52] Lifting of suspension of the registration of the FijiFirst Party - Parliament of the Republic of Fiji https://www.parliament.gov.fj/lifting-of-suspension-of-the-registration-of-the-fijifirst-party/

^[53] 2022 DFAT Report, [2.14].

^[54] ‘Mental health in Fiji’, The Borgen Project, 30 March 2023, 20230621103639.

^[55] Mental Health Atlas 2020 Country Profile: Fiji’, The World Health Organization, 15 April 2022, 20230621103534; 'Visit to Fiji. Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, Dainius Pūras (A/HRC/47/28/Add.1)', Dainius Pūras, United Nations General Assembly, 12 April 2021, 20210811100914 (Special Rapporteur 2021 Report) pg 7.

^[56] 2022 DFAT Report, [2.15].

^[57] ‘Mental Health Atlas 2020 Country Profile: Fiji’, The World Health Organization, 15 April 2022, 20230621103534; ‘Mental health in Fiji’, The Borgen Project, 30 March 2023, 20230621103639

^[58] ‘Mental Health Atlas 2020 Country Profile: Fiji’, The World Health Organization, 15 April 2022, 20230621103534

^[59] 2022 DFAT Report, [2.13].

^[60] ‘Almost 75 per cent of persons with mental illness experience stigma – Health Ministry’, Fiji Village, 6 August 2023, 20230807115513.

^[61] Special Rapporteur 2021 Report, pg10-11.

^[62] Special Rapporteur 2021 Report, pg10.

^[63] ‘Mental health in Fiji’, The Borgen Project, 30 March 2023, 20230621103639.

^[64] 2022 DFAT Report, [3.42].

^[65] 2022 DFAT Report, [3.42].

^[66] CSV15 v Minister for Immigration and Border Protection [2018] FCA 699 at [30]- [31] (Collier J),

^[67] ESD17 v Minister for Immigration and Border Protection [2018] FCA 1716 at [24]–[25] (Rangiah J).

^[68] Migration Act 1958 (Cth), s 36(2)(aa); DQU16 v Minister for Home Affairs  [2021] HCA 10 ; 273 CLR 1 at  [13]  (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).

^[69] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; 210 FCR 505 at [246] (Lander and Gordon JJ), at [296] (Besanko and Jagot JJ), and at [342] (Flick J).

^[70] DQU16 v Minister for Home Affairs  [2021] HCA 10 ; 273 CLR 1 at  [14]  (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).

^[71] GLD18 v Minister for Home Affairs [2020] FCAFC 2 at [38]–[39] (Allsop CJ and Mortimer J)

^[72] GLD18 v Minister for Home Affairs [2020] FCAFC 2 at [88]–[89] (Allsop CJ and Mortimer J); see also CSV15 v Minister for Immigration and Border Protection [2018] FCA 699 (Collier J); CHB16 v Minister for Immigration and Border Protection [2019] FCA 1089 (Reeves J).

^[73] See DQU16 v Minister for Home Affairs  [2021] HCA 10 ; 273 CLR 1 at  [27]  (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ).

^[74] As exhaustively defined in s 36(2A) of the Act.

^[75] GLD18 v Minister for Home Affairs [2020] FCAFC 2 at [88]–[89] (Allsop CJ and Mortimer J); CSV15 v Minister for Immigration and Border Protection [2018] FCA 699 (Collier J); CHB16 v Minister for Immigration and Border Protection [2019] FCA 1089 (Reeves J).

^[76] As exhaustively defined in s 36(2A) of the Act; GLD18 v Minister for Home Affairs [2020] FCAFC 2 at [84], [89] (Allsop CJ and Mortimer J).

^[77] Migration Act 1958 (Cth) s 5H(1)(a).

^[78] Migration Act 1958 (Cth) s 5J(1).

^[79] Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 389 (Mason CJ), 398 (Dawson J); 407 (Toohey J), 429 (McHugh J).

^[80] Namely, race, religion, nationality, membership of a particular social group or political opinion.

^[81] Migration Act 1958 (Cth), s 5J(4)(a).

^[82] Migration Act 1958 (Cth), s 5J(4)(b). Section 5J(5) of the Act sets out non-exhaustive examples of serious harm.

^[83] Migration Act 1958 (Cth), s 5J(4)(c).

^[84] Migration Act 1958 (Cth) s 36(2)(aa); DQU16 v Minister for Home Affairs  [2021] HCA 10 ; 273 CLR 1 at  [13]  (Kiefel CJ, Keane, Gordon, Edelman and Steward JJ); SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; 262 CLR 362 at [1]–[5] (Kiefel CJ, Nettle, Gordon JJ).

^[85] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 at [242]–[246] (Lander and Gordon JJ) (with whom Besanko and Jagot JJ at [297] and Flick J at [342] agreed).

^[86] Migration Act 1958 (Cth), s 5(1).

^[87] Migration Act 1958 (Cth), s 36(2B).

^[88] The level of protection must be such as to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: Minister for Immigration and Citizenship v MZYYL [2012] FCAFC 147 (Lander, Jessup and Gordon JJ).

^[89] BBK15 v Minister for Immigration and Border Protection [2016] FCA 680; (2016) 241 FCR 150 at [32]; SZSPT v Minister for Immigration and Border Protection [2014] FCA 1245 (Rares J); MZAAJ v Minister for Immigration and Border Protection [2015] FCA 478.

^[90] See Migration Act 1958 (Cth), s 499 together with Ministerial Direction No.84 made under that section.