1514886 (Refugee)

1514886 (Refugee) [2018] AATA 3849 (24 August 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  [Applicants’ names deleted][1]
[1] [Details deleted].
CASE NUMBER:  1514886
COUNTRY OF REFERENCE:                  Fiji
MEMBER:James Silva
DATE:24 August 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 24 August 2018 at 6:28pm
CATCHWORDS
REFUGEE – Protection visa – Fiji – particular social group – homosexual men – employment – accommodation – Catholic Church – physical and sexual assault – home invasion – migration history – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J-5LA, 36, 65, 499
Migration Regulations 1994, 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
APPLICATION FOR REVIEW

The applicant is a man in his [age range] from Fiji.
The applicant most recently arrived in Australia on 14 February 2015, as the holder of a visitor visa. He applied for a protection (class XA) visa on 13 May 2015. On 15 October 2015, the delegate refused the application pursuant to s.65 of the Act.
This is an application for review of that decision.
The applicant attended a Tribunal hearing on 24 January 2018.
For the reasons set out below, the Tribunal has concluded that the decision under review should be affirmed. In brief, the Tribunal finds that the applicant is an openly gay man who has had mainly positive family, community and professional experiences, although he has also suffered some social discrimination and some harassment. However, it is not satisfied that this harm, even considered cumulatively, has amounted to persecution or significant harm. Having regard to the applicant’s personal circumstances and country information, the Tribunal is not satisfied that he has a well-founded fear of persecution for one or more of the reasons set out in s.5J of the Act, or that he faces a real risk of significant harm. Australia therefore does not have protection obligations in respect of him.
Criteria for a protection visa
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. A summary of the relevant law is set out in Attachment A.
CLAIMS AND EVIDENCE
Protection claims
The applicant is a gay man who claims to have suffered physical and psychological harm in Fiji, including assaults and social discrimination. He claims to fear further mistreatment if he returns to Fiji, including the inability to live openly as a gay man.
Background
The applicant is [an age] year old man from Suva. He is an ethnic Fijian, and a Catholic. Although he stated on his protection visa application form that his only language is Fijian, he is also fluent in English.
The applicant grew up in Suva, and completed his [education] there. In [year], he attended [an educational institute], completing the first year. He resumed his studies for a few months in [year], but did not complete the course.
The applicant was born and lived in Suva until 1985. From then, he lived in different [locations], usually in rented homes close to the [workplaces] where he was working. These included [Town 1] ([specified years]), [Town 2] ([specified years]), [Town 3] ([specified years]), [Town 4] ([specified years]) and [Town 5] ([specified years]). From 1990, he worked in various [workplaces], initially as a [role] but later in [another occupation], and in management positions. The [workplaces] were [in one region: two employers and years specified], and [in a different region: employer and years specified].
The applicant is unmarried. His parents are deceased. He has [siblings], [specified] (the applicant indicated that [one] died several years ago); and several nephews and nieces.
The applicant holds a Fiji passport issued in [2014], which is valid for ten years. He also presented to the Tribunal his previous passport, issued in [2004].
The applicant first visited in Australia on 7 April 2004, when he was [age] years old. He most recently arrived on 14 February 2015. In between these two dates, he made [multiple] return trips. Of particular note are the following:
§ From 2006 to 2013, most of the applicant’s visits were as the holder of Business Short Stay visas. From 2014, he entered Australia three times on Visitor visas.
§ The applicant spent a year in Australia from November 2008 to November 2009 (on a Business Short Stay visa); and four months from January to May 2007 (on [a business] visa). His other visits were for mostly a month or less, and on several occasions for only a few days.
At hearing, the applicant said that he is living with his friend and witness [Mr A] and [Mr A’s] partner. He works as [an occupation] with [an agency], having previously volunteered with them. The applicant claims to be in a relationship with an Australian citizen, who lives in [Suburb 1].
Evidence
The evidence before the Tribunal includes the following relevant material: -
§ The applicant’s protection visa application form, lodged on 12 May 2015.
§ Identity documents: as noted above, the applicant attached to his application form a photocopy of his previous Fijian passport (valid from 2004 to 2014), and his current Fijian passport, issued in Suva [in] 2014 and valid for ten years. As noted below, these show extensive travel over a prolonged period. The applicant also provided a copy of his birth certificate, and a copy of his most recent Australian visa grant notice.
§ The applicant’s protection claims are set out in handwritten comments on the application form, and an attached statement of claims.
§ Supporting documents:
-   A copy of a Fiji Police Force letter to the applicant, dated [in] February 2015, confirming details of a home invasion and assault on [a date in] May 2006, and the apprehension and punishment of the culprit.
-   Letter of support from [name], [Mr A’s] partner and a close friend of the applicant’s. He lives with them in [Australia].
-   Letter of support from [Rev B], parish pastor of [a named church].
§ Recording of the applicant’s protection visa interview (‘Department interview’) held on 13 October 2015
§ The protection visa assessment (‘delegate’s decision) of 15 October 2015, which is on the Department file and which the applicant also submitted together with his review application.
The applicant appeared before the Tribunal on 24 January 2018, to give evidence and present arguments. The hearing was conducted in English, in which the applicant is proficient. His close friend [Mr A] appeared as a witness.
The applicant submitted to the Tribunal a number of press articles reporting instances of violence and harassment against LGBT people, especially gay men, in Fiji. The Tribunal has before it a large volume of country information, discussed below.
Receiving country
The applicant claims that he is a Fiji national. He speaks Fijian; has provided his Fiji passports and other documentation; and is obviously familiar with that country. The Tribunal is satisfied, for the purpose of this decision, that the applicant is a Fiji national. Fiji is therefore the receiving country for the purpose of assessing his claims for protection.
CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS
Assessment of the applicant’s claims and evidence
The Tribunal has taken into account the AAT’s Migration and Refugee Division Guidelines on the Assessment of Credibility both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole. The Tribunal is mindful of the need for care in assessing claims about sexual orientation. In the present case, the applicant is an articulate witness who gave candid, detailed evidence about his sexuality, and the Tribunal readily accepts that he is a gay man.
The applicant’s claims relate to homophobia in Fiji, including specific instances of physical violence, and more generally the cumulative effect of discrimination and abuse. He emphasised that he has struggled to reconcile his homosexuality with his strong Christian beliefs and his family obligations. Fiji’s conservative values, with social and religious opposition to homosexuality and, at least until recently, legal sanctions, made it more difficult for him. In a similar vein, he expressed concern that Fijian attitudes to homosexuality undermined his dignity and self-worth. These factors provide important context for assessing the applicant’s protection claims as a whole.
As discussed at hearing, the applicant’s migration history significantly weakens his claims to have experienced persecution or significant harm in Fiji, even on a cumulative basis; and to fear such harm if he returns there in the future. The following is relevant:
§ From the time of his first visit in April 2004, the applicant made a total of more than 20 visits to Australia, including a one year stay from 2008 to 2009. He did not seek protection during these visits.
§ As noted in the decision under review, the applicant claimed that he was not aware of the availability of protection in Australia until 2012. It was around that time that he resolved to seek protection at a later date. The applicant confirmed this advice at the Tribunal hearing. The Tribunal finds it difficult to believe that the applicant, who speaks fluent English, was unaware of the availability of protection prior to 2012.
§ Even after (allegedly) learning about the availability in 2012, the applicant made a further five return visits to Australia during 2013 and 2014. His last entry into Australia was in February 2015, and he waited a further three months before lodging an application. At hearing, the applicant explained that he had wanted to stay in Australia in late 2012, but [one] sibling died in early 2013 and his other [sibling] suffered a [health incident]. As a result, he remained in Fiji to look after his mother at home, and to continue paying off his mortgage. After his mother’s death, he stayed in Fiji for some time to make funeral arrangements and tend to family matters.
The applicant’s conduct raises serious questions about the significance of his claimed mistreatment in Fiji, and his need for protection. At the same time, the Tribunal accepts that this is not determinative. For instance, applicants may give priority to family and other contingencies, even when faced with danger; and mistreatment (such as discrimination) may accumulate and reach a ‘tipping point’ over time. The assessment below reflects all these factors.
The applicant’s sexual orientation
The applicant described himself in his protection visa application as a ‘gay person’. He spoke in candid terms about his sexuality, his experiences in Fiji and Australia, and his social contacts. The Tribunal accepts that he identifies as a gay man.
The applicant has claimed that he ‘grew up a gay person in a settlement in Fiji’, and he indicated at the hearing that he has always been openly gay, and recognised as such. The evidence of [Mr A] and the support letters from [Rev B] and [Mr A] support this.
At hearing, the applicant focused very much on the difficulties he experienced as a gay man in Fiji. However, he also indicated that his family, social contacts and employers all knew about his sexual identity. He said that he participated in sports groups (men’s and mixed sex [sport], in which there were also other gay men), the Catholic church, and the church choir; and that he used to visit Suva from time to time to attend family or social gatherings. He mentioned, with evident familiarity, the work of LGBT groups in Fiji (for instance, fundraising and advocacy work); that he knew of nightclubs that gay people went to; and that he sometimes brought male partners back to his accommodation (albeit cautiously, he added). All of these factors support the applicant’s claim to have lived in Fiji as an openly gay man, and, when considered together with his migration and work history, they suggest that he had a reasonably productive, satisfying life there.
The applicant is unmarried, and gave no details of past relationships in Fiji. He claimed at the hearing to be in a relationship with an Australian citizen living elsewhere in [Australia].
The applicant’s adverse experiences in Fiji
The applicant presented broad claims in relation to his adverse experiences in Fiji. They included the general impact on him of growing up in a conservative and often intolerant society (for instance, his poor self-esteem); various forms of verbal abuse and social discrimination; and, according to his statement, he claims to have been ‘assaulted, raped, humiliated and threatened for [his] life’.
There was detailed discussion of these claims at hearing. The Tribunal’s interest was to gauge the frequency, duration, nature and severity of the applicant’s claimed experiences; how these related to his other circumstances (in particular, his family, social and professional life, as well as his migration history); and to help assess whether they involved serious harm or significant harm. The applicant emphasised that he feels that he has suffered homophobia for too long; that he has put the needs of others ahead of his own welfare; and that he now wishes to assert his own rights and ‘freedom of expression’.
Impacts of a living in a conservative society
As noted above, the applicant emphasised that Fijian society’s conservatism and disapproval of homosexuality negatively affected his wellbeing. While he adheres to traditional and Christian values, he struggled to reconcile his sexuality with these. In a similar vein, he expressed concern that he would disappoint his parents and family. [Rev B] echoed these sentiments, in writing that the applicant ‘tried to follow and abide [by] the strict Christian moral codes but made a special effort to maintain a good rapport within his peers and elders in the community.’
The applicant contrasted this with the feeling of acceptance that he has in Australia, stating that he does not want to return to living as a ‘hermit’.
The Tribunal accepts that the applicant has struggled to reconcile his sexuality with his own Christian beliefs, and with Fiji’s social and religious traditions; that he has felt pressure to meet the expectations of his family and [community]; and that he does not feel genuinely accepted in Fiji. It accepts that these emotions are real and complex. However, the Tribunal is not satisfied that they involve serious harm amounting to persecution, as required by s.5J(4)(b) and having regard to the non-exhaustive examples given in s.5J(5). (The Tribunal assesses below the applicant’s claims that he suffered psychological due to ongoing discrimination and specific instances of mistreatment; and that he fears more serious psychological harm in the future, having now experienced the freedom of life in Australia).
Social discrimination
The applicant wrote that he has experienced extensive social discrimination, such as verbal taunts, ostracism and disrespect. In his statement of claims, he referred to the following as examples:
§ Extended family and friends knew about his sexuality and pretended to accept it, but in practice they used to shun him, for instance by walking in the opposite direction when he approached.
§ He ‘often fell prey to […] abuse’.
§ He wrote that, when ‘relocating’ to other parts of Fiji, it was difficult to find accommodation as landlords ‘wouldn’t be supportive’. As a result, the applicant ‘was financially challenged and [his] emotional state worsened’.
At hearing, the applicant referred to the pervasive nature of anti-gay discrimination, both overt and less obvious. He emphasised its cumulative effect on him. In wide-ranging evidence, he referred to the following examples:
§ At work and in public, he was conscious of how he presented himself, in order to avoid problems. Asked for any examples, he said that he took care with his clothing and grooming not to appear effeminate in Fiji; whereas, this was not an issue in Australia.
§ He lived in fear. Like many other gay men, he tended to socialise with women, as heterosexual men were often homophobic.
§ He had to avoid public displays of affection, and exercise caution if he was bringing a man to his accommodation to stay overnight.
§   He said that he had experienced verbal abuse, ridicule and discriminatory treatment. There were some generally ‘safe’ places, such as LGBT-friendly venues, at work or at church. Even so, any disagreement could easily result in anti-gay slurs, and supposed friends did not usually step up to defend a gay person. Even in church, he was asked to sit at the back sometimes.
§ The applicant gave by way of examples that in nightclubs or supermarkets, there was sometimes pushing or swearing, aimed at intimidating gay persons. When going out with friends, he would sometimes be subject to sexual comments aimed at embarrassing him.
The applicant clarified and expanded on these points in his oral evidence.
§ Asked about his claim to have suffered discrimination from landlords, the applicant said that they were ‘not really accommodating’ and were hesitant to let out properties to gays, in case they brought men back to their homes and caused disruption.
§ In a similar vein, the applicant said that even in Suva, gay men had to hire hotel rooms or meet each other furtively, in order to avoid disapproval or aggression. This made it difficult to have long-term relationships. He added that a further problem was that he was attracted to masculine men (he suggested that many other gays in Fiji were like this), and this made it even more difficult to have a relationship, given existing social pressures.
§ Asked about any workplace discrimination (as he appeared to have had long-term, virtually continuous employment in [a particular] sector), the applicant gave as an example that at [Workplace 1], the Acting General Manager, who was an older gay man, had passed over the applicant for promotion. The applicant heard on the grapevine that his supervisor had wanted to avoid the [workplace] being seen as ‘too gay’. The applicant also mentioned that, at [another workplace], he some colleagues had criticised him behind his back for being gay, and he had lost some [business] for that reason.
The Tribunal received a range of country information from the applicant that illustrated these points (and also referred to instances of actual physical violence against gays and other LGBT people). It shared with the applicant advice from the Department of Foreign Affairs and Trade (DFAT) report[2] advising that ‘homosexual men and women experience limited acceptance in Fiji’; and that they are ‘often not accepted when they [come out], particularly when co-habiting’. It noted also DFAT’s overall assessment that LGBTI Fijians are at ‘a moderate risk of societal discrimination’. The articles that the applicant submitted gave examples of social discrimination against LGBT individuals, although they tended to highlight the particular difficulties faced by transgender persons and sex workers (rather than just gay men).
[2] DFAT, Country Information Report – Fiji, 27 September 2017
Consideration: The applicant’s claims to have experienced anti-gay discrimination in Fiji are consistent with country information about conservative attitudes generally, and some overt anti-gay behaviours. The Tribunal accepts the following:
§ There have been occasions when people have shown some hostility towards him, such as abusive language, ostracism and/or petty provocations (such as ‘bumping’ into him at nightclubs).
§ The applicant knows or suspects that people have discriminated against him as a gay man in other ways, for instance, in the work environment or when renting a property.
§ The general anti-gay sentiment in Fiji – particularly prior to 2013, when the Fiji Constitution banned discrimination on the basis of sexual orientation, and social attitudes started to shift, particularly among urban and younger people – led the applicant to exercise some caution, in order to avoid criticism or conflict.

However, the Tribunal is not satisfied that these instances, individually or cumulatively, amount to serious harm (persecution) or significant harm. It notes, in particular, that the applicant has been open to his family, and generally had good relations with them (for instance, he told the Tribunal that he used to travel back to Suva for social and family gatherings). Similarly, he appears to have had a circle of friends (including gay friends and activists), to have been involved with the Catholic church and its choir, and to have participated in sports activities. He has had virtually continuous employment in [a particular] sector, including in management and customer relations. And there is no suggestion that prospective landlords have in fact refused him accommodation, even though the applicant believes they subjected him to greater scrutiny or suspicion.
The applicant’s migration history reinforces the Tribunal’s conclusion. He visited Australia on more than twenty occasions, often on short-term business visas that attest to the opportunities afforded to him through his work. For the reasons stated above, the Tribunal is sceptical of the applicant’s claim that he did not know about the availability of protection before 2012; or that he required protection in Australia, but was that family commitments prevented him from seeking protection until 2015. In sum, the Tribunal does not accept that the applicant suffered social discrimination in Fiji that, even cumulatively by 2015, resulted in persecution or significant harm.
Physical violence
As noted above, the applicant claimed to have been ‘assaulted, raped, humiliated and threatened for [his] life’ while in Fiji. Similarly, [Rev B] mentioned that the applicant ‘quietly suffered from the various sexual assaults and abuse’.
Sexual assault in 1978
The applicant claimed that when he was [age] years old, a [relative] sexually assaulted him. The applicant felt unable to report it, as he thought it would bring his family and tribe into disrepute. He felt that, as [a] boy, he should be seen as a paragon of Christian and Fijian cultural values.
At hearing, the applicant said that his [relative] sexually assaulted him once when they were playing outside. The [relative] tried to perform a sexual act, and assaulted him several times later. The applicant believed that his [relative] singled him out because he was gay, and hence vulnerable. He said that he was unable to tell anyone about it. He has since disclosed this incident to a few friends. He implied that he still has painful memories of it. In further evidence, the applicant said that this [relative] was later in training to become a [priest]. Repulsed at the idea of worshipping with his [relative], the applicant converted to Catholicism. Meanwhile, his [relative] had died.
The Tribunal accepts that [a relative] sexually assaulted the applicant when he was young; that the applicant felt unable to disclose this for many years; and that he may have converted to Catholicism in order to avoid contact with this [relative]. The Tribunal accepts that this may have had a negative impact on the applicant psychologically, although it has no medical or other objective evidence as to the nature or extent of such harm. It is not satisfied on the available material that such an incident results in ongoing serious harm (persecution) or significant harm in Fiji.
Assault and home invasion in 2006
The applicant wrote that in 2006, someone broke into his rented flat. He reported the incident to the [Town 4] Police. The applicant believed that the police did not treat his case seriously. A few days later, the perpetrator returned and physically assaulted the applicant. The applicant claims that he still has the physical scars from this attack.
The applicant produced a copy of a police letter dated [in] February 2015, relating to a home invasion and assault on [a date in] June 2006. It states that the perpetrator was charged with ‘house breaking and assault’, fined $100 and placed on a three-year good behaviour bond.
The applicant provided further details at the Department interview and the Tribunal hearing.
§ In 2006, he was working as [an occupation] at a [workplace], supervising some staff. During the course of his work, he gave an adverse performance review to a female member of staff, concluding that she was not suitable for a permanent position.
§ The following weekend, the applicant was on a secluded part of a local beach, drinking with her brother and his friends. The co-worker’s brother beat him up. The applicant walked to a health centre, where he received medical treatment.
§ The applicant then went to the police, who arrested the brother and eventually released him on bail.
§ The applicant said that he avoided the brother and the entire family from that time on.
One day, someone broke into the applicant’s house while he was at work, and numerous items were stolen. The applicant reported this to the police, and suggested that they investigate the brother who had previously assaulted him. The police followed up, and found one of the applicant’s stolen items ([item specified]) in the suspect’s home.
The Tribunal accepts that the brother of one of the applicant’s subordinates at work assaulted him and was responsible for a home invasion and theft in mid-2006, while he was living in [Town 2]. There is some confusion as to the sequence of events – (a) whether there was a home invasion first, and the assault occurred after the applicant reported the matter to the police[3], (b) whether the house invasion and assault occurred on the same day[4], or (c) whether the assault took place one day, and the home invasion a few days later, as the applicant stated at the Department interview and at the Tribunal hearing. However, the Tribunal is prepared to give the applicant the benefit of the doubt and accept that all these incidents occurred.
[3] As indicated in the statement of 11 May 2015.
[4] As implied in the police record of [February] 2015.
In any event, the Tribunal accepts that a local man assaulted the applicant on the beach in 2006. The Tribunal also accepts that this person broke into the applicant’s home and stole some items (although the timing of this is uncertain). In considering the meaning and significance of this incident, the Tribunal makes the further findings:
§ The applicant and this person evidently had some links (through the man’s sister, and through local acquaintances); they were drinking with or near other on the beach; and the immediate trigger for the fight appears to have been the applicant’s treatment of the man’s sister at work.
§ The Tribunal accepts that the applicant walked to a local health clinic where he received treatment. However, he did not require hospitalisation and he was able to report the matter to the police later the same day. The Tribunal is not satisfied that he suffered ‘serious’ injuries, even if, as claimed, he still has some scars attributable to that day.
At hearing, the Tribunal explored with the applicant any further relevance of this incident to his protection claims. He said that he was ‘vulnerable’, implying that his attacker (and perhaps other Fijian men) saw him as easy prey because he is an openly gay man.
The applicant claimed that he was unhappy that the brother was fined and put on a good behaviour bond, but not imprisoned. At hearing, he said that the police followed correct procedures and he was satisfied that they acted on his complaint. However, he felt that they had displayed anti-gay bias when interviewing him (the applicant). For instance, they asked him whether he had lured or provoked the brother.
The Tribunal finds that the trigger for the dispute between the applicant and the other man was a work-related issue involving the man’s sister, and quite likely, alcohol consumption. The Tribunal is not satisfied on the available evidence that the man targeted the applicant because of his sexuality, although it accepts on the basis that it is plausible that the man used abusive anti-gay language, and the applicant subjectively felt that he was more vulnerable because of his sexuality. In relation to the police response, the Tribunal is satisfied that they provided him with an effective level of State protection, even if the applicant considers that their questions to him showed some anti-gay bias and if considers the penalty to have been lenient.
The incident coincides approximately with the applicant’s move from [Town 2] to [Town 3] (according to the dates set out on his protection visa application), although it also appears that he continued working at [Workplace 1] for another couple of years. The applicant wrote in his statement that he was frustrated after the incident that he ‘was not able to stick up for [his] rights, and […he] chose to run again from the situation.’ His self-esteem suffered as a result. The Tribunal accepts that the applicant felt frustrated that a local man had beaten him up; that he received a three-year good behaviour bond rather than prison time; and that the applicant felt the need to avoid this man and his family in public.
However, the Tribunal is not satisfied that the man attacked the applicant because of his sexuality, or that this is an example of anti-gay violence. It is also not satisfied, taking into account the applicant’s return travel to Australia for one month in late 2006 and three months in the first half of 2007, that he genuinely feared persecution or significant harm at his workplace at [Workplace 1], or more generally in Fiji.
Other incidents
The applicant’s written statement and oral evidence suggested that there had been many instances of assault and abuse, and [Rev B] also mentioned ‘various sexual assaults’. The Tribunal invited the applicant to speak to any other violent incidents, reminding him, for instance, that he had mentioned at the Department interview a break and enter into his home in 2011.
He said that some local men broke into his [home] in [Location 1] (near [Town 4]), in which he was living alone (although sometimes friends stayed with him). They had made menacing sexual advances to him, and demanded money for cigarettes. Later, they broke into his home and took [various] items. He feared for his safety, but did not report it to the police. He said that this influenced his decision to move to [Town 5] (where, according to his protection visa application, he worked at [a new employer] from January 2012).
Once again, the Tribunal has little context within which to consider this claim. The applicant did not mention it in his original statement of claims (although he did not suggest that his statement was exhaustive of all relevant incidents). There is minimal information about the perpetrators, their motives (for instance, whether they were motivated by criminal gain, homophobia or some mix of these or other reasons), or how it affected the applicant. In any event, the applicant appears to have moved to [Town 5] at least in part for work, and he visited Australia numerous times over the following year. There is nothing to suggest that these individuals pursued the applicant to [Town 5], or that he had similar problems there.
The Tribunal finds that the applicant moved to [Town 5] for work, although it accepts that the home invasion in [Location 1] (and his perceptions of the local security environment) may have influenced his decision to move. However, it is not satisfied on the limited available evidence that any such attack was more than a criminal act, or that it involved homophobic violence.
The applicant suggested that there had been other, less significant incidents and provocations, such as being bumped in a nightclub or intimidated, particularly when local men had been drinking. Country information indicates that social discrimination is a concern for gay men (and other LGBT individuals in Fiji). The Tribunal therefore accepts that the applicant may have faced other instances of minor harassment, and it factors these into the assessment below.--
In sum, the Tribunal accepts that an older [relative] sexually assaulted the applicant in about 1978. It accepts also that the brother of a former colleague assaulted him in 2006, and raided his home; and that there was a home theft also in [Location 1] in 2011. In addition, there may have been other occasions of discrimination and harassment. While the applicant may subjectively feel that his attackers in 2006 and 2011 were motivated in large part because of his sexuality, the Tribunal is not satisfied on the limited available evidence – and having regard to the applicant’s conduct and migration history – that these incidents involved homophobic violence targeted towards the applicant.
Summary of findings
The Tribunal makes the following findings of fact:
§ The applicant is an openly gay man.
§ In Fiji, he has experienced some overt discrimination, such as some anti-gay slurs and snide comments, instances of social rejection and some petty provocations. He also believes that there have been more subtle, unspoken discrimination over the years. The Tribunal accepts that the applicant often preferred the company of women, as he felt that many Fijian men were less tolerant and sometimes volatile. For the main part, however, his family, community, church, work colleagues and society were generally accepting. As such, the applicant has had a productive family, social and professional life in Fiji, and the instances of discrimination or minor harassment have not involved serious harm (persecution) or significant harm.
§ The applicant has conducted himself modestly, partly in response to his upbringing in a conservative society; his own Christian and family values, and personality; and also to avoid tension or conflict. The Tribunal is not satisfied, however, that he has modified his conduct to avoid the risk of serious harm (persecution) or significant harm.
§ The applicant was subject to a sexual assault as a child; the perpetrator has since died. He was also subject to an assault and home invasion in 2006, and a robbery in 2011. These were localised incidents, triggered by personal and criminal factors, although the applicant perceives his sexuality may have added to his vulnerability.
§ The applicant sought protection in Australia, after many years of visiting this country, because there is greater acceptance of LGBT people and more favourable lifestyle options compared with Fiji. His family and personal circumstances influenced the timing of this decision. He did not leave Fiji in response to any past persecution or significant harm, or any imminent fear that he would be subject to such harm.
ASSESSMENT: REFUGEE CRITERION
The Tribunal now assesses whether, in light of the above findings of fact, and having regard also to any other relevant factors – in particular, country information about the treatment of gay men in Fiji, as well as the applicant’s future conduct – there is a real chance of him experiencing serious harm amounting to persecution if he returns to Fiji (for reason of his membership of the particular social group of gay men in Fiji, or for any similar reason enumerated in s.5J(1)).
The applicant has expressed a number of broad concerns about his prospects if he returns to Fiji. In his written statement, these were: -
§ He has ‘had enough with the insults, the homophobia and putting the needs and aspirations of others [while] ignoring [his] human right of expression and freedom’. In other words, he implied that the cumulative effect of past discrimination, together with his experience of having lived in Australia, makes it no longer tolerable for him to endure discrimination and the risk of more serious mistreatment.
§ He feels unable to ‘have a relationship, live with a partner or show emotion’, as such conduct is not acceptable to the community.
§ He feels unsafe, and that the authorities will not protect him, as Fijian ‘society […] remains in denial of freedom for gay rights or equality’, and ‘there are no laws or legislation that protects and respects gays entirely’.
Asked about his future conduct if he returns to Fiji, the applicant said that he would probably return to the family home in [a location] (a suburb of [Town 1], one of Fiji’s largest towns). He said that it would be difficult for him to find work, taking into account his sexuality, age and his social media profile. He stressed that most gays in Fiji live in fear, and many are secretive about their sexuality and relationships.
The Tribunal discussed with the applicant a range of country information, which it noted was broadly consistent with DFAT’s recent comments on protection claims concerning sexual orientation and gender identity[5]. The following excerpts were most relevant to the applicant’s circumstances:
3.75 Fiji’s 2013 Constitution bans discrimination on the basis of sexual orientation and gender identity or expression. The interim government repealed a law criminalising homosexuality in 2010. Same-sex marriage is not legal. In January 2016, Prime Minister Bainimarama was quoted by Fiji’s media as saying ‘go and have it [same sex marriage] done in Iceland and stay there and live there. Fiji does not need that rubbish’.
[3.76 - This paragraph relates to transgender individuals.]
3.77 Homosexual men and women experience limited acceptance in Fiji. There are a few NGOs operating in Suva, but these are cautious in undertaking public advocacy because of continued conservative values in society. Gay men and lesbians often do not come out to their families and are often not accepted when they do, particularly when co-habiting. They may find more acceptance in Suva, particularly in wealthier areas. [Comment relating to lesbians.]
3.78 Overall, DFAT assesses that LGBTI Fijians are at a low risk of official discrimination, and a moderate risk of societal discrimination.
[5] DFAT, Country Information Report – Fiji, 27 September 2017, paras. 3.75-3.78.
The applicant provided a number of press articles in support of his claims, and his witness [Mr A] reinforced the message (based on his recent trip to Fiji) that many gays can ‘express’ themselves only in nightclubs or among friends. These reports cover a wide range of LGBT-related matters, sometimes focused on sex workers, transgender persons and lesbians. The Tribunal notes, in particular, the following:
§ There were reports of verbal, sexual and physical abuses of sex workers in Lautoka, and related mental health problems. They noted that this is also relevant for other LGBT individuals, including gay men. The articles demonstrate press coverage of these issues, reflecting in part the efforts of LGBT advocacy groups. Some reports include photographs of public protests and open displays of same-sex affection. They also indicate that LGBT advocates have gained some public profile and support, and forged links with other NGOs.
§ One report covers the alleged gang rape of a 17 year old man by four men in April 2015. The incident involved intoxicated men on the Suva foreshore, but there is no further context (such as whether the victim was singled out for any particular reason).
§ The assault of two gay men in the early hours of Sunday morning in Lautoka was reported in some articles, which noted that gay men are sometimes afraid to seek police help, fearing repercussions from the community.
§ One article gives the life story of a gay activist in Fiji, who describes growing up with some discrimination in Suva, but that those with less accepting families and in more remote communities may face more difficulties.
§ The applicant submitted to the Tribunal a copy of an article which reports that a Suva nightclub bouncer punched and humiliated two LGBTI individuals, on two separate occasions in July 2017. The article reports Ashwin Raj, of the Human Rights and Anti-Discrimination Commission (HRADC) and an outspoken gay rights advocate, expressing appreciation for the Fiji Police Force’s reaction, in bringing assault charges against the bouncer. The applicant later sought to ‘recall’ this message, implying that the Tribunal should disregard it.

The Tribunal noted at hearing that this and similar material acknowledged Fiji’s cultural and religious conservatism; continued disapproval of LGBT rights, particularly in rural areas; and instances of abuse or violence. At the same time, however, there were stronger legal protections than in the past, and greater social acceptance, particularly in urban areas and among younger people. The situation was not uniform throughout Fiji, and the Tribunal would therefore need to consider carefully the applicant’s personal circumstances.
Assessment: The Tribunal appreciates the applicant’s wish to remain in Australia, which offers a more LGBT-friendly environment than Fiji, in terms of protections, social acceptance and facilities. It accepts that, in Fiji, there are instances of anti-gay discrimination and abuse; some violent attacks (which may be under-reported); and a more insidious effect where official and social attitudes lead gay men (and other LGBT individuals) to feel cautious about displays of public affection or seeking police protection.
As noted above, the Tribunal finds that the applicant has not been subject to past harm, as a gay man in Fiji (or for reason of any associated particular social group), that individually or cumulatively amounted to persecution. This reflects in large part his personal circumstances – for instance, his residency in Fiji’s towns or [regional] areas; his employment in [a particular] sector; and his generally accepting family, friends, church and employers. The Tribunal notes that some of the applicant’s circumstances have changed in recent years – for instance, his mother died prior to his departure from Fiji, and he may have become accustomed to life in gay-friendly inner city [location].
The Tribunal is not satisfied that the applicant faces a real chance of serious harm amounting to persecution in Fiji, as a gay man.
§ It accepts that he may face some instances of anti-gay discrimination, overt or suspected; but it is not satisfied that these, individually or cumulatively, involve serious harm amounting to persecution.
§ The applicant also claimed that he ‘cannot have a relationship, live with a partner or show emotion’, if he returns to Fiji. The Tribunal finds this claim problematic.
- The materials before the Tribunal (including the materials that the applicant provided) indicate that there are openly gay men and couples in Fiji. As noted above, the applicant’s failure to seek protection in Australia over many years of visits casts some doubt about the extent to which he feels pressured by such attitudes.
- In other respects, however, the Tribunal considers the applicant’s concerns about his future conduct (or his need to modify it) somewhat exaggerated. Although he is openly gay, he also indicated that he is Christian, and mindful of his family’s and the community’s expectations. This is reflected in his evidence that he sometimes had male visitors to his rented accommodations, but they came and went quietly – although he also observed that heterosexual men would have been able to be more open about such casual encounters. Overall, the Tribunal got the impression that he is a modest person, and not given to public displays of affection or sexuality. It accepts that the applicant exercised some caution when having casual male visitors, due to his modesty and also in part because of his landlord’s or neighbours’ likely sensitivity to such activities. However, it does not accept that he modified his conduct in order to avoid persecutory harm, and it is not satisfied that he would need to do so in the reasonably foreseeable future.
§ The Tribunal is not satisfied that the applicant faces a real chance of being assaulted or seriously harmed as a gay man, taking into account country information about the frequency of such incidents and their (anecdotally reported) occurrence late at night, in or near nightclubs, and involving drunken men; and also having regard to the applicant’s past experiences in Fiji.
§ The applicant also claims that he feels ‘unsafe’ because ‘the authorities can only protect [him] to a certain extent’, as there is no comprehensive protection. The Tribunal accepts that the applicant, like other gay men in Fiji, is sceptical about official policies on LGBT rights (including the Fiji Constitution’s ban on discrimination on the basis of sexual orientation), and often recall derogatory statements such as the Prime Minister’s observations on same sex marriage. Press reports that the applicant provided show that gay men are sometimes wary of seeking police assistance in the case of anti-gay violence, fearing that the police will be dismissive or inappropriate in their responses. In other cases, however, such as the reported police response to the July 2017 assaults by nightclub bouncers and the applicant’s report of the 2011 home invasion, it appears that the police do respond to requests for protection, if made. As noted above, the Tribunal finds that the risk to the applicant of being seriously hurt in homophobic violence does not amount to a ‘real chance’. It follows that the Tribunal also does not accept that the applicant faces a real chance of persecutory harm due to the lack of availability of effective protection measures (from the Fiji authorities, or another party or organisation): s.5LA(1).
Seeking protection in Australia: The applicant also wrote that he also fears he will be harmed for having sought protection in Australia. He added that certain claims that he presented ‘may be used against [him]’. There was extensive discussion at hearing of the applicant’s concerns on his return to Fiji. He stressed his concerns at not being able to live freely as a gay man, the lack of protections, and the likelihood that he will retreat to his shell, and live like a hermit. Despite ample opportunity, the applicant did not express any concerns about people in Fiji learning about either the fact of his protection visa application, or its contents. The Tribunal finds that the applicant does not have a genuine or well-founded fear of being subject to adverse attention of the Fiji authorities or anyone, as a result of having sought protection in Australia.
Christianity: The applicant stated that he converted to Catholicism after learning that his childhood attacker was going to become [a] priest. He indicated that he attends the church, is a member of the choir and that he has been generally accepted in the church. [Rev B’s] letter echoes this. Country information indicates that Christian churches have influenced negative social attitudes towards LGBT individuals. Indeed, the applicant told the Tribunal that, he had sometimes been asked to sit towards the back of the church, presumably as an expression of their disapproval. In light of this evidence, the Tribunal accepts that the applicant is a Christian, and he has suffered ongoing low-level discrimination within the church. However, the Tribunal is not satisfied that he has suffered discrimination amounting to persecution or significant harm, for any reason associated with being a gay man, with his religion or any other reason set out in s.5J.
The Tribunal has considered the applicant’s claims and evidence, individually and cumulatively. It accepts that he is an openly gay man. Having regard to all of his circumstances, however, it is not satisfied that he faces a real risk of discrimination (including social or employment), psychological, physical or other harm that involves serious harm amounting to persecution. It is also not satisfied – again having regard especially to his past conduct – that the applicant ever has, or will need to in the future, modify his conduct or otherwise take measures in order to avoid persecutory harm.
The Tribunal is therefore not satisfied that the applicant has a well-founded fear of persecution for one of the reasons enumerated in s.5J(1), now or in the reasonably foreseeable future, if he returns to Fiji.
The Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
ASSESSMENT: COMPLEMENTARY PROTECTION
The Tribunal has considered whether on the evidence before it, there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Fiji.
The Tribunal takes into account the above findings of fact; its view of the applicant’s future conduct; and country information about the treatment of LGBTI individuals in Fiji. It also factors in its assessment and conclusions regarding his having sought protection in Australia, and his Christian faith. The Tribunal is mindful of the psychological and long-term impacts of social discrimination. Nonetheless, it concludes that there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on him, such as to meet the definition of torture; or to meet the definition of cruel or inhuman treatment or punishment; or to meet the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that he will suffer arbitrary deprivation of their life or the death penalty. In other words, the Tribunal finds no other grounds that suggest he will be subject to significant harm, for any reason, if he returns to Fiji.
Accordingly the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence the applicant being removed from Australia to Fiji, there is a real risk that he will suffer significant harm: s.36(2)(aa).
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.
James Silva
Member

ATTACHMENT A – RELEVANT LAW
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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 themself 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.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
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 them 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.
..
36Protection visas – criteria provided for by this Act
…
(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.

[2018] AATA 3849

24 August 2018

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Immigration

Administrative Law

Statutory Interpretation

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Procedural Fairness

Natural Justice

Statutory Construction

Appeal