AFZ23 v Minister for Immigration and Citizenship [2025] FedCFamC2G 823

FedCFamC2G|2025-06-04

The application for extension of time and the hearing of the substantive application by way of review were both heard together. That necessarily involved a consideration of the merits of the substantive application for review.
Grounds 1 and 2 of the application for review respectively concerned [36] and [37] of the reasons of the Tribunal. Relevantly, [36] - [39] of the reasons of the Tribunal were as follows:
1. However, I have considered that the applicant lived in Fiji from 2006-2017, was able to work and care for his family and apart from the two incidences nothing else happened to him for the remainder of his time in Fiji. He departed Fiji in 2017 and left his children behind and there has been no repercussions or incidents since he left.
2. The applicant does not have a political profile that would cause him issues upon return to Fiji. Country information suggests that while some people are sceptical about the military given the coup in 2006 many respect the military and there are no day-to-day issues with the military or police for most citizens of Fiji.
3. For these reasons, while I accept his claims about past events, it was a long time ago, and the applicant continued to live in Fiji unencumbered for many years. I do not accept that if the applicant returns to Fiji, he faces a real chance of persecution from the military or the police or anyone associated with them. I find that the applicant does not face a well-founded fear of persecution as per s.5J(1) of the Act and therefore the applicant is not a refugee within the meaning of s.5H(1).
4. Nor do I accept that there are grounds for believing that as a necessary and foreseeable consequence of being returned to Fiji, there is a real risk that the applicant will suffer significant harm from the Military, the police or their associates. I am therefore not satisfied that the applicant meets the alternative provisions in s. 36(2).
Whether or not the Tribunal took into account an irrelevant consideration depended upon a consideration of the factual matrix before it. As has been held by Mortimer J (as Her Honour then was) in at :

[21] In performing a review function of this kind, the usual principle is that the decision-maker should consider current information or material most likely to give the decision-maker an indication of what the situation is likely to be in the country to which a visa applicant may be forced to return: see Minister for Immigration & Border Protection v MZYTS [2013] FCAFC 114; 230 FCR 431 at [38] and [45]. Consideration of up-to-date material is a core aspect of the review function where the task is to determine whether a person has a well-founded fear of persecution on return (in the foreseeable future) to a country, or faces a real risk of significant harm (in the foreseeable future) in that country. The task is predictive, and while each case will turn on its facts, in general terms it can be said that a decision-maker should, in order to perform her or his task, base that prediction on the most recent and reasonably available information about the situation in a particular country.

The Court finds that it was relevant and reasonable for the Tribunal to look at whether there had been any repercussions or incidents involving the applicants before they left Fiji, and whether there had been any repercussions or incidents involving members of the family after the first applicant and second applicant had moved to Australia. The Tribunal was entitled to look at past events for the purpose of considering whether there was a real chance that the applicants would suffer harm if they were returned to Fiji in the foreseeable future. The Court further finds, for the same reasons, that it was relevant and reasonable for the Tribunal to look at whether, in the light of the applicants not having any adverse political profile, country information before the Tribunal was suggestive of the Fiji military constituting a dangerous armed force likely to cause harm to the applicants.
The Tribunal duly had regard to country information going to the question as to how the Fiji military responded to those people in the community who were not supporters of the government of the day. At [30] of its reasons, the Tribunal specifically referred to a DFAT Country Information Report on Fiji dated 20 May 2022 relating to the military, and to policing throughout Fiji. That report was relevantly recorded by the Tribunal as follows:

30. I read the following country information to the applicant:

Military 5.1

The Republic of Fiji Military Forces (RFMF) play an influential role in Fijian society. They have played a central role in Fiji's recent history and Prime Minister Bainimarama was a RFMF Commander at the time of the 2006 coup. 5.2 The RFMF have a visible presence. Media reporting on RFMF activities is common and having served in the military or having a family member who did can be a source of pride for many Fijians. The military often plays a role in disaster relief efforts. During the COVID-19 crisis the military was active in enforcing quarantine regulations before the police took on that role. Fijian police are unarmed and, in cases where weapons are required, the military may assist police.

5.3 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'etat (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.

5.6 The Fiji Police Force (FPF) is a national police force that covers the whole country. The US Department of State Overseas Security Advisory Service 2020 Crime and Safety Report assesses Fiji police as 'professional' and notes recent improvements in training and accountability. It notes that police may not be based in vehicles and may not arrive in time to disrupt crimes in progress but assesses that 'victims of crime can expect fair treatment with dignity'. DFAT Country Information Report FIJI May 2022 23

5.7 Police are generally well-resourced by the Government and receive funding and training from overseas aid partners. The police are, in general, disciplined (but see comments on violence below) Policing is conducted on a community policing model and police are generally actively engaged with the communities they serve.

5.8 Corruption in the FPF is reported, but DFAT understands that it is not widespread. There are some allegations of corruption and DFAT is aware of pockets of corruption that have later been exposed and investigated. Complaints about the FPF are made to the Human Rights and Anti- Discrimination Commission.

5.9 Policing in outer islands and more remote places is more difficult because of the greater influence that the chief-based hierarchy has in the outer regions. Police are generally not deployed to their home communities to avoid conflict with traditional hierarchies.

5.10 The Fiji Police Force overall has the capacity to protect individuals from societal harassment, discrimination, and violence, and police are usually effective in carrying out their role in day-to-day crime detection, investigation and prevention.

There is no merit to the applicants' claims that the Tribunal erred by making the findings it did at [36] - [37] of its reasons. It carefully considered the evidence before it and made findings which were open to it based upon such evidence. It did not err.
As to Ground 3 of the Application for Review, it was submitted on behalf of the applicants that the Tribunal had failed to accept, or consider, that because the first applicant acted as the driver for a Barrister of some prominence who had represented the former Fiji Prime Minister, that necessarily meant that the first applicant was a political supporter of the Prime Minister. There was no evidence to that effect. Nor would such a tenuous connection give rise to any reasonable inference that there might be any such connection, or that what connection there was would give rise to some imputed or perceived political affiliation warranting the first applicant being considered as having an adverse political profile of note.
Further, it was pointed out by the Tribunal in its reasons that though the first applicant was accused of having committed a crime of sexual assault in 2006, he was nonetheless acquitted of that charge in 2009 when he had been represented by the Barrister in question. [1] At [28] of its reasons, the Tribunal found as follows:
1. I asked him if after 2009 he had any more trouble with the police or the military and he said no but that he lived in fear. I asked him why it took him so long to leave and he said he was struggling financially. He said he knew he wanted protection when he came to Australia and his wife came four months later.
The Tribunal in its reasons appropriately dealt with the question as to whether the applicant had a well-founded fear of persecution under s. 5J(1) of the Act, and whether the first applicant was a refugee under s. 5H(1) of the Act.
The Tribunal did not err when it found that the first applicant did not have an adverse political profile that would cause him to reasonably have a well-founded fear of persecution if returned to Fiji. It was open for the Tribunal to make such finding based upon the evidence before it. Accordingly, the Tribunal did not err when it found that the first applicant was not owed protection obligations pursuant to the provisions of s. 36(2)(a) of the Act, or that he was not owed complementary protection obligations pursuant to the provisions of s. 36(2)(aa) of the Act. Ground 3 is without merit.
The applicants have failed to establish jurisdictional error on the part of the Tribunal.
The second applicant's Application for Review could not succeed unless the first applicant's Application for Review was successful.
The Grounds of Review are without merit and are dismissed.
The Court will hear the parties as to costs.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Egan.

[1] [24] and [27] of the reasons of the Tribunal.

Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021

Decisions (Judicial Review) Act 1977

As to the extension of time application, in Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 403 ALR 604 at [11] - [16], Kiefel CJ, Gageler, Keane and Gleeson JJ held as follows:

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