1516098 (Refugee)

[2019] AATA 2302

1516098 (Refugee) [2019] AATA 2302 (12 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1516098

COUNTRY OF REFERENCE:                  Fiji

MEMBER:Mila Foster

DATE:12 February 2019

PLACE OF DECISION:  Sydney

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

Statement made on 12 February 2019 at 11:19am

CATCHWORDS

REFUGEE – protection visa – Fiji – particular social group – homosexual women – teacher – disowned by family and community – fear of physical violence – rejection by church community – threats to employment – harassment from police – state protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J-5LA, 36, 65, 424, 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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 26 October 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Fiji arrived in Australia on a visitor visa [in] December 2014 and applied for the protection visa on 24 February 2015. The delegate refused to grant the visa on the basis that she was neither a refugee nor owed complementary protection.

3. The primary issue in this case is whether the applicant faces a real chance of suffering persecution or significant harm for reasons of her sexuality if she returns to Fiji. For reasons I give below in my consideration of the claims and evidence I have concluded that the decision under review should be affirmed.

CRITERIA FOR 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 (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.

2. 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.

3. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

4. 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.   

5. 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

1. 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. DFAT released such a report in relation to Fiji on 27 September 2017.

CLAIMS AND EVIDENCE

1. The following is an outline of the claims and evidence the applicant presented in her protection visa application, during an interview with the delegate,[1] in material submitted to the Department after the interview, in submissions and documents presented to the Tribunal, and at a Tribunal hearing.

   [1] A recording of which I have listened to. The delegate also gave an account of the interview in her decision record, a copy of which the applicant included with her review application.

Protection visa application

1. The applicant’s protection visa application included a protection visa application form completed with the assistance of migration [agent][2] as well as supporting documentation.

   [2] Also the applicant’s friend and her visitor visa sponsor: Department file [number] at ff.62,17.

2. According to information provided on the form:

a.The applicant is [an age] year old Fijian national. She was born in Fiji and has been a national of Fiji since birth. She is not a national of any other country. She had not travelled to any other country prior to entering Australia as a visitor in December 2014.

b.She is a Christian.

c.She completed primary school, high school and teaching college in Fiji. She can speak, read and write Fijian and English, and speak Hindi. She had been employed as a teacher by the Fijian Ministry of Education since [year].

d.Her parents are deceased and she has no siblings. She has been in a de facto relationship with [an age] year old Australian citizen and resident named [Ms A] since [November] 2011. [Ms A] was born in Fiji. The applicant came to Australia to visit [Ms A].

e.The applicant lived at [a location] in [District 1] (on Fiji’s main island of Viti Levu) from [year] until December 2010 except for 2 years [when] she lived at a teachers college hostel in [named town] (about [distance] km away). She lived at the [School 1] Primary School quarters in [District 1] from January 2011 until December 2011 and the [School 2] quarters in [Town 1] (on the Vanua Levu island) from January 2012 until December 2014.

f.In relation to what she thought would happen to her if she returned to Fiji, the applicant stated that her family back home had been suspicious of her discreet relationship with [Ms A] since she had come to Australia. If she returned her family would be ashamed, disown her and even bash her up. The community and church would outcast her.

g.She had not been harmed in the past in Fiji because her lesbian relationship had always been discreet but she had suffered ‘psychological disturbance’ because close family members had been talking about her to the community.

h.The Fijian authorities would not protect her from the harm she would face from her family, friends and communities because lesbian relationships are not permitted in Fiji; she would be made fun of and bashed if she sought protection.

1. She could not relocate within Fiji as she is the only child of her deceased parents and she left her work to settle with [Ms A]. She did not relocate in the past because of the effect it would have had on her students, co-workers, community and herself.

1. The supporting documentation included statements made by the applicant and [Ms A], as well as certified copies of the applicant’s Fijian birth certificate, the biodata page of the applicant’s Fijian passport, the results the applicant achieved at teachers college, written communication between the applicant and [Ms A], and [an Australian] Relationship Certificate. The Relationship Certificate states the applicant’s relationship with [Ms A] was registered [in] February 2015.

Applicant’s written statement

1. According to the applicant’s statement:

   a.The applicant lived with her parents until she left for teachers college and began her teaching career. The applicant’s parents separated in 2010 after which her father remained (in [District 1]) and her mother went to her mother’s parents’ village.

   b.The applicant had not been interested in boys and hid her homosexuality because it would shame her family, family tribe, paternal and maternal villages, church peers and community who would then outcast her and disown her.

   c.The applicant was close to her mother but the secret of her homosexuality would have shocked her mother.

   d.The applicant met [Ms A] via [social media] in mid-2011. They continued to communicate via [social media] and phone calls until [Ms A] came to Fiji [in] November 2011 to meet her. They met at the airport, spent a night at the nearest hotel and left for home the next day. [Ms A] returned to Australia [in] December 2011.

   e.The applicant got a transfer from [School 1] to [School 2] to be closer to her mother after her mother was diagnosed with [a condition] in late 2011.

   f.[Ms A] returned to visit the applicant and her mother [in] February 2012. [Ms A] stayed with the applicant until [May] 2012. Part of the applicant’s mother’s family were suspicious of the relationship but she and [Ms A] remained discreet about their relationship because they feared what may arise in the applicant’s family, the shame they may create in her mother’s family, the humiliation her mother would face, and the shame she (the applicant) would face from her co-workers.

   g.[Ms A] returned to Fiji [in] August 2012. The applicant and [Ms A] spent a night at the hotel nearest the airport and left for the applicant’s home the following day. [Ms A]’s presence was always appreciated at the applicant’s school especially by the students because [Ms A] always had sweets for them. They continued to be discreet about their relationship, that way they were accepted in the family and school. [Ms A] left Fiji [in] November 2012.

   h.Over the course of their relationship, the applicant’s maternal families got close to [Ms A] and the applicant got very close to [Ms A]’s close families in [Town 2] (on Viti Levi island).

   i.[In] July 2013, [Ms A] returned to Fiji with [Ms A]’s mother. The applicant met them at the airport and dropped [Ms A]’s mother off in [Town 2]. Part of [Ms A]’s family knows about their relationship but they are still discreet about their relationship with the elders of [Ms A]’s family because of the shame they would bring on the family since [Ms A]’s uncle is a man of strong Christian faith. After dropping off [Ms A]’s mother, the applicant and [Ms A] returned to the applicant’s home. Later that month, [Ms A]’s mother, a cousin and an aunt visited the applicant and [Ms A]. The family got along because of what they believed was a close friendship between the applicant and [Ms A]. [Ms A] left Fiji [in] November 2013. 

   j.The applicant’s father died at the end of 2013. With financial assistance from [Ms A], she attended her father’s funeral with her mother.

   k.[Ms A] returned to Fiji [in] August 2014 to spend time with the applicant during the school holiday period. They spent some time in [Town 2] before returning to the applicant’s home. [Ms A] left Fiji [in] September 2014.

   l.They applicant’s mother died [in] October 2014. The applicant stopped [Ms A] from attending her mother’s funeral because she didn’t want the family to go through a shameful period. Their relationship was suspicious and it would have been a humiliation for her families to talk at the burial.

   m.The applicant came to Australia [in] December 2014 to visit [Ms A] after the loss of her mother and to spend the holidays here. [Ms A]’s mother was also ill and died in January 2015. Before she died, the applicant and [Ms A] were able to be honest about their relationship. [Ms A]’s mother accepted them and [Ms A]’s family here were all welcoming.

   n.The applicant found that a lesbian relationship is accepted here and everyone is given equal freedom unlike Fiji where they had to live in fear of being exposed, neglected, judged and cursed by their close families. Therefore she wished to stay in Australia with [Ms A].

[Ms A’s] statement

1. In her written statement [Ms A] stated that she moved to Australia from Fiji in 2009. She had [specified siblings] and her parents are deceased. She has been a lesbian since she lived in Fiji but it is taboo because of the close links in Fiji to religious beliefs which do not entertain such relationships. She had a few lesbian relationships and was always silent about them to her family. Her mother never forced her to get married.

2. [Ms A] gave an account of her relationship with the applicant, how they met and her visits to Fiji which was similar to the account the applicant gave in her written statement.

3. [Ms A] also stated that the applicant’s family were suspicious of their relationship but they remained quiet about it because of the impact it would have on them; they would be judged, outcast and the applicant would be disowned by her family. She was close to the school where the applicant worked and they were accepted as friends by the applicant’s colleagues.

4. [Ms A] said they were also quiet about their relationship with her family in Fiji because most of her family are committed Christians with responsible roles in the church. Her family would be totally against the relationship so she and the applicant would be judged and bring humiliation to her family in the village. Thus to her family they were just good friends.

5. [Ms A] stated that gay relationships are not accepted in Fiji “with Law procedures and religion” and her family did not accept gay relationships because it was against their culture and religious beliefs.

Interview with delegate

1. During her interview with the delegate on 12 August 2015 the applicant gave evidence about matters relating to her claim for protection including personal details about [Ms A] and how she met [Ms A], and who in Fiji knew about her sexuality and her relationship with [Ms A]. The applicant stated that the only member of her family to whom she had disclosed her sexuality and her relationship was her mother. She said that members of her family suspected her relationship with [Ms A] and were against it but no one other than her mother knew. She stated that [Ms A]’s uncles and a few cousins and her mother were aware of the relationship. [Ms A]’s uncles and cousins knew their relationship was not right but did not have the guts to voice it to [Ms A] because she is in [Australia] and she financially supports them.

2. Asked about any issues with her work performance, the applicant told the delegate that her job was separate from her personal life and she had a healthy relationship with her students and co-workers but always feared being identified as a lesbian.

3. During the course of the interview the applicant indicated that she had been subjected to the following harm in Fiji due to her suspected sexuality and/or relationship with [Ms A]:

   a.While teaching at the [School 1] School, the village community pointed fingers at her and questioned why her mother was on another island and she was only having visitors from girls and not boys. Her headmaster or head teacher questioned her about all the visitors to her house, called her to the office and questioned her about her relationship with [Ms A]. She told him they were friends.

   b.She felt people at her church suspected her too. She was a youth leader at church and the youth were talking about her behind her back. A friend disclosed to her that there had been rumours in the church about her and [Ms A]. The head teacher also attended the church and had told her at school that there had been questions at the church about her relationship with girls and girls coming to her home.

   c.While visiting her mother at Christmas in 2011 she received a phone call from that the school manager of the [School 1] School. He indicated that when the applicant returned to school there would be a meeting about her relationship with [Ms A] and that the school did not want the applicant back. The applicant could not recall the name of the manager because she had only been at the school for one year.

   d.After moving to her mother’s village, the applicant’s father’s family made no contact with her. They disowned her for who she had become. When she returned for her father’s burial she could see the hatred. A sister who was always in contact told her that maybe they hate her because of her choice.

   e.A cousin (or cousins) who lived in her mother’s village shared with her that there were rumours in the village that she was gay, that jokes were made about her, that her relationship with [Ms A] was made fun of and that she was a bad influence on the girls that came to her school quarters – teaching them to be lesbians.

   f.The applicant heard from a sister and her cousins that her family did not want her to be in a lesbian relationship with [Ms A]; that they said she was an outcast of the family and had brought shame and disgrace on her uncles and cousins.

   g.She was subjected to intimidation through phone calls and harassment by two maternal uncles named [Uncle A] and [Uncle B]. One of the uncles, who was a member of the [School 2] school management committee, told her that they knew what she was doing and he would complain to the Ministry of Education about her being a bad influence on the children. Culturally and religiously the community in her mother’s village did not accept lesbian relationships.

   h.On about 4 four occasions as she walked by police standing at the police post, the police told members of the public that she was a lesbian and teaching at the school. The police usually just looked away in a filthy way, like they did not have respect for her and looked at her like she was doing something wrong against the culture and religion.

4. In relation to the harm she feared if she returned to Fiji, the applicant stated it was her mother’s family that she feared. She said that what she would face would be the look in their eyes, the hatred, and the gossip which is a psychological disturbance. She said she had found it difficult to face them sometimes. And she also feared being bashed by her family if she returned even though she had never been bashed or hit before and there was no history of family violence in her family. She believed they would bash her because they did not want her to be a lesbian or to stop her being involved with [Ms A].

5. The applicant said she could not relocate if she returned to Fiji because she does not have a house or close links with her father’s family and her mother’s family do not accept her as a lesbian. She left her job as a teacher so it would be a problem for her to financially support herself; she could not get her job back because of the exposure of her relationship and she would be labelled a lesbian. She said that having sat and listened to her co-workers she could gauge they were against lesbian ‘cases’.

1. The delegate put to the applicant information about the rights of homosexuals in Fiji and groups in Suva who advocate for the rights of homosexuals and discussed with the applicant the availability of support and redress if she faced harm. The applicant indicated that she did not believe she would be protected by the police because the reality was different to the law, in practice homosexuals were discriminated against, harassed and looked down upon. She had heard of cases in the past of homosexuals being denied protection due to their sexuality and she had a friend who was mistreated in gaol because she was a lesbian.

2. At the end of the interview the applicant requested and was granted 7 days to provide further supporting evidence.

Post-interview material

1. After the interview the applicant submitted information from a number of sources about the situation for lesbians in Fiji including a Country Advice from the former Refugee Review Tribunal (the ‘RRT Country Advice’), two statutory declarations and a copy of a letter dated [in] November 2014 sent to the applicant by the Fijian Ministry of Education (the ‘leave letter’).

RRT Country Advice

1. The RRT Country Advice, dated 26 May 2010, is a response to a request for information regarding discrimination of lesbians in Fiji particularly those of Indian background and Hindu religion.

Leave letter

1. The letter gives approval for the applicant to spend the third term holidays in Australia from [November] 2014 until [January] 2015, and states that if she does not resume her duties on [a date in] January 2015 she would be deemed to have resigned from the Public Service.

Statutory declaration – [Ms B]

1. In a statutory declaration made on 10 August 2015 [Ms B] stated:

   a.She is the applicant’s cousin.

   b.She lived in [named] village when the applicant was transferred to [School 2].

   c.The applicant disclosed to her the relationship between the applicant and [Ms A].  

   d.Even though the applicant disclosed the relationship to her, they kept the relationship a secret because same sex relationships are taboo in Fijian culture. Nevertheless, the villagers gossiped about the applicant being a teacher and a lesbian and said that the applicant might teach students about same sex relationships.

   e.After the applicant left for Australia the village headman said the applicant was not to return to [School 2] because of her relationship. She informed the applicant of that and then the applicant applied for protection.

Statutory declaration – [Ms C]

1. In a statutory declaration statement made on 25 August 2015 [Ms C], an Australia resident, stated:

   a.She is a close friend and has had sisterly bond with the applicant since 2013 when she lived on a short term basis in the school quarters of [School 2].

   b.During her stay in Fiji she came to know from the applicant that she was a lesbian and about her relationship with [Ms A]. Part of the community did not accept the applicant especially her family while the rest did not know she was a lesbian.

   c.Rumours usually passed around because of the applicant’s relationship and the villagers laughed at the applicant. She knew this because most of the villagers worked [for] her ([Ms C]’s) [business].

   d.It was fortunate that the head teacher and the majority of the school committee members were Indian so the applicant had a discreet lesbian relationship in the community. They did not know she was a lesbian but due to the rumours the applicant shared her fear of losing her job at the school and was always disturbed about what the community thought and said about her.

   e.There were times when one of the applicant’s uncles, [Uncle A], was very watchful of the applicant and what she was doing in the school compound. He made life impossible for the applicant by always complaining to the school head teacher about what the applicant did in the school compound in his absence such as partying with [Ms A], cutting coconut leaves from the coconut tree, and picking coconuts from its trees.

   f.Another uncle of the applicant telephoned her one day due to a family misunderstanding and verbally harassed the applicant by saying that they knew she was a lesbian and would make complaints against her to the Ministry of Education. That uncle also walked up to the applicant’s house and warned the applicant about her relationship. The applicant then felt disturbed that a day would come when she would be labelled in the community, bringing shame to the community and her mother’s family.

   g.She never saw the applicant socialise with the villages or families in the community because she was labelled, verbally harassed, discriminated against, intimidated and a laughing stock.

   h.Lesbian relationships are not accepted in the Fijian communities which she had witnessed. Fiji is a small country and it doesn’t take long for rumours of one individual to pass from one community to another. Even though they have LGBT organisation(s) in the country that does not permit an individual to live freely amongst the rest, to be counted as the same as any normal relationship and live a lifestyle they please.

Review application

1. The applicant’s review application included a copy of the delegate’s decision but no other submissions. The applicant was represented on review by [the representative] who had also assisted her with her protection visa application.

Pre-hearing submissions

1. Prior to hearing the Tribunal received written submissions from the applicant’s migration agent as well as other material, some of which was requested by the Tribunal, including the following:

   a.Copies of money transfers made by [Ms A] to the applicant in Fiji.

   b.Copies of email communication between the applicant and [Ms A] between 2012 and 2014.

   c.Documentary evidence of the applicant’s continuing relationship with [Ms A] in Australia such as a rental agreement, banks records, and life insurance policy.

   d.News reports relating to homosexuals and same sex relationships in Fiji.

   e.Additional copies of the RRT Country Advice.

Tribunal hearing

1. The applicant appeared before me at a Tribunal hearing held on 27 April 2018 to present further evidence and arguments about the issues in the review. She also presented documents including online comments about same-sex marriage and a news report about the decision of a New Zealand tribunal not to deport a lesbian Fijian Indian woman. At the applicant’s request I also took oral evidence from [Ms A] and her migration agent made oral submissions at the end of the hearing.

2. Oral evidence and arguments were presented about matters which included the following:

   a.The development of the applicant’s awareness of her sexuality.

   b.The same sex relationships the applicant had prior to her relationship with [Ms A]. The applicant testified that she had two previous same sex relationships – one with a girl she met at a friend’s function and another with a girl she met through a website.

   c.The location of the applicant’s parents’ villages and [School 1] and [School 2]. The applicant testified her father’s village and [School 1] were located in [District 1] and her mother’s village and [School 2] were located in [Town 1].

   d.The applicant’s living arrangements in Fiji. The applicant testified that while teaching at [School 1] and [School 2] she lived in subsidised accommodation or quarters provided by the schools. In both cases the accommodation was part of a small compound. Three teachers including the head teacher and the applicant lived in the [School 1] compound while a fourth teacher travelled from home. Four teachers including the applicant and the head teacher lived in the [School 2] compound. The applicant’s accommodation in both compounds contained 2 bedrooms. The applicant’s mother lived with the applicant in the [School 2] accommodation – they each had their own bedroom. [Ms A] shared the applicant’s bedroom when she visited the applicant. Teachers were permitted to have family and friends stay with them in their school quarters, they just had to notify the head teacher of any guests staying for a longer period of time.

   e.How the applicant met [Ms A] and [Ms A]’s visits to Fiji.

   f.The applicant’s past and current relationship with [Ms A].

   g.Who is aware of the applicant’s sexuality and/or her relationship with [Ms A], who has presumed the applicant is a lesbian and/or in a lesbian relationship with [Ms A], and the attitudes of those people to the applicant’s actual or presumed sexuality and/or relationship with [Ms A].

   h.The applicant’s reasons for not including in her protection visa application claims she subsequently made.

   i.Past harm the applicant experienced in Fiji due to her actual or presumed sexuality and/or relationship with [Ms A].

   j.The harm the applicant may face if she returned to Fiji due to her actual or presumed sexuality and/or relationship with [Ms A].

   k.The harm the applicant may face in Fiji because she sought protection in Australia.

   l.Whether the harm the applicant experienced in Fiji in the past and may experience if she returns to Fiji involves serious harm or amounts to significant harm.

   m.Whether there is a real chance the applicant will face serious harm or significant harm if she returns to Fiji.  

   n.The legal provisions in Fiji relating to homosexuality.

   o.Attitudes towards and treatment of lesbians and same sex couples in Fiji – by the Fijian authorities and society in general.

   p.Whether the applicant could relocate within Fiji so that she would not face future harm.

Post-hearing submission

1. At the hearing the applicant’s migration agent stated that there was an article which reported that the Fijian prime minister had declared he would ensure that any Fijian returning to Fiji who had applied for protection overseas would be deprived of employment. The migration agent submitted that the applicant would thus certainly be reduced to a life of poverty if she returned to Fiji. The migration agent believed he had already submitted the article to the Tribunal. I informed him that I did not believe that was the case. The migration agent agreed that, after the hearing, he would inform the Tribunal when the article had been submitted or provide a copy of the article to the Tribunal.

2. Following the hearing the migration agent informed the Tribunal that he had been unable to locate the article but had found a reference to it in ‘an unrelated AAT reasons for judgment’. He presented what was a page of a 2017 Federal Circuit Court judgment referring to an affidavit filed by the applicant in that matter in which that had applicant stated:

   The Fijian Prime Minister has made it abundantly clear in the public media that asylum seekers on return to Fiji will be banished into a life of poverty and despair, with no hope of gaining meaningful employment. This is supported by the recent attached newspaper article that the AAT would not accept.

3. I have reviewed the documents submitted to the Tribunal. There is no article of the kind the migration agent has referred to before me. I accessed the above judgment online and found that it did not contain any further details about the article that would enable me to locate it.

CONSIDERATION OF THE CLAIMS AND EVIDENCE

1. There are inconsistencies in the evidence presented by the applicant and her claims have significantly developed and changed over time. I have concluded that the applicant has been untruthful about important aspects of her claims and that she has tailored her evidence to support her claim for protection. I thus do not accept all the claims she has made.

Country of reference

1. I sighted the applicant’s Fijian passport at the hearing. On the basis of the passport and in the absence of any evidence to the contrary, I find that the applicant is a national of Fiji and no other country as she claims. Fiji is thus the country of reference for the purposes of assessing her claims for protection.

The applicant’s sexuality and relationship with [Ms A]

1. The testimony the applicant gave at hearing about her sexuality, [Ms A], her relationship with [Ms A], and [Ms A]’s visits to Fiji was generally precise, forthright, consistent with the applicant’s earlier claims and evidence, and supported by the additional documentary evidence provided on review.

2. I thus accept that the applicant is a lesbian, that she and [Ms A] have been in a lesbian relationship since November 2011, that [Ms A] visited the applicant in Fiji on 5 occasions as they claimed in their written statements, that [Ms A] lived with the applicant in her school quarters at [School 1] and [School 2] during those visits, and that they view their relationship as a long term one.

3. Having accepted that the applicant and [Ms A] lived together in Fiji when [Ms A] visited the applicant, I find that the applicant and [Ms A] lived together in Fiji as a couple in the applicant’s school quarters for about 10½ months over a period of about 2 years and 10 months.[3]

   [3] The period of 2 years and 10 months began in about [November] 2011 when the applicant and [Ms A] first met in person in Fiji and ended in about [September] 2014 when [Ms A] departed Fiji on her last visit with the applicant.

4. The applicant testified that she and [Ms A] discussed whether [Ms A] would return to Fiji with the applicant if she was not granted a protection visa. The applicant testified that [Ms A] would not do so due to a medical condition. There is no evidence before me of [Ms A]’s medical condition, however as the applicant had given a consistent account of their relationship I accept that is true.

Past circumstances and events in Fiji

1. While I accept the applicant is a lesbian who has been in a lesbian relationship with [Ms A] since November 2011, I have concluded that the applicant has not been entirely truthful about other matters related to her sexuality and the relationship - in particular, to whom the applicant disclosed her sexuality and the relationship, the extent to which people speculated and/or made assumptions about her sexuality and relationship with [Ms A], and the past harm the applicant suffered in Fiji due to her actual or presumed sexuality and same-sex relationships.

Disclosure to mother, [Ms B] and [Ms C]  

1. The applicant indicated in her protection visa application that she hid her homosexuality and was discreet about her relationship with [Ms A] in Fiji because she feared the consequences of disclosing her sexuality and relationship particularly the shame it would bring to her mother and her mother’s family. She stated that by remaining discreet she and [Ms A] were accepted by her family and school but nevertheless some members of her mother’s family were suspicious of the relationship and some close family members talked about her in the community.

2. In contrast the applicant told the delegate that she had disclosed her relationship with [Ms A] to her mother but her mother was the only person and family member in Fiji to whom she had revealed the true nature of the relationship. Asked at the hearing why she had not mentioned disclosing the relationship to her mother in her protection visa application and instead gave the impression that she was so discreet about the relationship that she had not disclosed it to anyone, the applicant responded that she must have forgotten to mention it in her statement and repeated that her mother was the only family member she told. I do not believe the applicant could forget to mention in her protection visa application that she disclosed her sexuality and relationship with [Ms A] to her mother given that according to her written statement the applicant was close to her mother, she testified she had shared a bedroom with [Ms A] in the same house she lived in with her mother during 4 out of 5 of [Ms A]’s visits, and she remembered to mention in her written statement that she and [Ms A] told [Ms A]’s mother about their relationship. I have thus concluded that the applicant intentionally sought to give the impression in her protection visa application that she had not disclosed her sexuality and relationship with [Ms A] to her mother or anyone else in Fiji.

3. The applicant testified that two women sharing a bedroom would be considered highly unusual in Fiji even if they were just friends and that she told her mother about her sexuality when [Ms A] came to stay at her [School 2] accommodation for the first time. Given the applicant lived with and shared a bedroom with [Ms A] for about 10 months between 2012 and 2014 in the home she lived in with her mother I find it credible and thus accept that the applicant disclosed her sexuality and the true nature of the relationship to her mother when [Ms A] first came to stay in her [School 2] quarters.

4. Both [Ms B] and [Ms C] have stated in their statutory declarations that the applicant disclosed the nature of her relationship with [Ms A] to them in Fiji. Further, [Ms B] states that she is the applicant’s cousin which is inconsistent with the applicant’s evidence that her mother was the only family member she told about her sexuality. The applicant offered no explanation when I asked at the hearing why she gave the impression in her protection visa application that she had not disclosed her sexuality and relationship with [Ms A] to anyone in Fiji and then told the delegate she had only told her mother if she had also told her cousin, [Ms B], and her friend, [Ms C]. The applicant responded that they were her close friends and that she happened to tell them (after telling her mother) but did not mention that in her statement. That does not explain why the applicant indicated she had not disclosed her sexuality and relationship with [Ms A] to anyone in Fiji if she had told [Ms B] and [Ms C] and contradicted her testimony that her mother was the only family she told. Further, the applicant seemed vague and evasive upon being subsequently asked when she told [Ms B] and [Ms C]. The applicant replied that they became suspicious and she eventually had the guts to tell them slowly. The applicant was also hesitant on further questioning and only revealed that she told them some time after [Ms A]’s second visit.

5. The applicant has consistently claimed since she lodged her protection visa application that at least some members of her family suspected her sexuality and the true nature of her relationship with [Ms A]. Further, it seems plausible given the considerable amount of time the applicant and [Ms A] lived together in Fiji in what the applicant indicated were small village communities that there was such speculation and that some people close to the applicant would have questioned her directly about her relationship. I thus accept that the applicant disclosed her homosexuality and her lesbian relationship with [Ms A] to [Ms B] and [Ms C].

6. In light of the above issues with the applicant’s evidence I have also concluded that the applicant intentionally failed to mention in her protection visa application that she had revealed her sexuality and relationship with [Ms A] to some people in Fiji to give the impression that her sexuality and relationship was a complete secret and thus she had not faced any harm in the past other than ‘psychological disturbance’ because close family members talked about her in the community. This indicates that rather than give a truthful account of her circumstances in Fiji in her protection visa application the applicant presented claims which she thought would best support her application. 

Speculation in [District 1] and action taken by the [School 1] School

1. Asked at the hearing how she met [Ms A] via [social media] the applicant testified in an unforthcoming manner that she thought she (the applicant) was getting to be known as a lesbian in [District 1], that a cousin must have told [Ms A] about her because [Ms A] ‘was wanting someone as a lesbian’, that she did not know about that at the time but when she began talking to [Ms A] she discovered that [Ms A] was advised by the friend of a cousin to search for the applicant on [social media]. This indicates that there were rumours and assumptions about the applicant’s homosexuality before she began her relationship with [Ms A] and before she moved to [Town 1] and began teaching at [School 2].

1. Further, the applicant told the delegate that questions about her sexuality were raised during the time she taught at [School 1]. She said the village community questioned why she was having visitors from girls and not boys. She also said she was the youth leader at the church and had the feeling people were talking behind her back, that a friend disclosed to her that there had been rumours at the church about her, and that the [School 1] head teacher who also attended the church said questions had arisen at church about her, her relationship with girls, and girls coming to her house.

2. The applicant did not specifically mention in her protection visa application that members of her family or her church in [District 1] had speculated about her sexuality. However, given the applicant stated in her protection visa application that she was a Christian and that close family members had been talking about her to the community I will accept that there was talk and speculation about her sexuality within her family, community, church and school in [District 1].

3. The applicant told the delegate that the [School 1] head teacher called her to his office and questioned her about girls visiting her house and her relationship with [Ms A]. She also told the delegate that while on leave at Christmas time in 2011 she received a call from the [School 1] manager informing her that the school wanted to have a meeting with her about her suspected lesbian relationship with [Ms A] and that the school did not want her back. The applicant stated that she did not attend the meeting or return the [School 1] because she obtained a transfer to [School 2] to be closer to her ill mother but that as a result of her experience at [School 1] she feared losing her job if her sexuality was revealed. I do not accept those claims for the following reasons.  

4. When I noted at the hearing that the applicant had raised employment issues during her interview with the delegate and questioned why she had not mentioned them in her protection visa application she seemed unsure about the employment issues I was referring to. After I recounted the claims outlined in the preceding paragraph to the applicant and she confirmed that they were true, I asked why then the applicant had not made those claims in her protection visa application if they gave rise to a fear that her sexuality would affect her employment. The applicant replied that she had characterised those matters as harassment. However, the applicant did not indicate in her protection visa application that she had been exposed to such harassment or problems. If these incidents had occurred at [School 1] and they led her to fear the consequences on her employment of her sexuality and relationship being revealed then I expect the applicant would have referred to the incidents in her protection visa application particularly as the protection visa application form asks what past harm she had experienced.

5. Secondly, in subsequent testimony the applicant contradicted what she had told the delegate and had confirmed earlier in the hearing - that [School 1] had questioned her about her relationship with [Ms A] and testified instead that [School 1] questioned her about a previous relationship not her relationship [Ms A].

6. Thirdly, if the applicant was questioned by her head teacher about her relationship with a previous girlfriend I do not believe the applicant would then have [Ms A] come and stay with her in her [School 1] school quarters ([Ms A]’s first visit) especially given the head teacher resided in the same compound.

7. Finally, I do not find it credible that having taught at the school for a year the applicant would be unable to recall, as she told the delegate, the name of the school manager who made the call informing her that there would be a meeting about her relationship.  

8. I thus do not accept that the head teacher of [School 1] questioned the applicant about girls coming to her school quarters, a past relationship, or her relationship with [Ms A]. Nor do I accept that the school manager telephoned the applicant to say that a meeting would be held about her suspected lesbian relationship and that she was not wanted back at [School 1].

Speculation in [Town 1] and complaints to [School 2]

1. [Ms B] states that after the applicant was transferred to [School 2] the villagers gossiped about the applicant being a teacher and a lesbian, and that she might teach the children about same sex relationships. [Ms C] declared that rumours were usually passed around because of the applicant’s relationship with [Ms A]. The applicant speculated at the hearing that it was not just her mother’s village that was suspicious about her sexuality and relationship with [Ms A] but a neighbouring village as well. The applicant agreed with my proposition that there appeared to have been a lot of talk and speculation about her relationship with [Ms A]. Given the number and length of [Ms A]’s visits to the applicant during the time the applicant taught at [School 2] and as the applicant stated in her protection visa application that members of her maternal family were suspicious about her relationship and close family members had talked about her in the community, I find there was widespread talk, speculation and/or a presumption within the applicant’s maternal family, her mother’s village and the community in and around [Town 1] that the applicant was a lesbian and that she was in a lesbian relationship with [Ms A] even though the applicant conducted her relationship with [Ms A] in what she and [Ms A] characterised as a discreet manner.

2. The applicant told the delegate and the Tribunal that during the time she taught at [School 2] she was subjected to intimidating phone calls, harassment and complaints due to suspicions about her relationship with [Ms A] by two maternal uncles, one of whom was a member of the school management committee. Asked at the hearing to describe the occasions on which her uncles confronted her directly, personally or by telephone about her relationship, the applicant outlined just one conversation she had with her uncle, [Uncle B]. She testified that after she confronted [Uncle B]’s daughter for talking about a drinking party at the applicant’s house, the uncle telephoned the applicant during which he asked the applicant what gave her the right to talk to his daughter as she did and that he then questioned the applicant’s relationship with [Ms A]. The applicant told the uncle that as it was her relationship it was not his problem. The uncle responded that she was a disgrace and humiliation to the family, that he said ‘you think we are stupid, that we don’t know what you are doing’ and that he would take up with matter with the Ministry of Education to get her sacked.

3. Despite claiming she was subject complaints, the testimony the applicant gave about how [School 2] viewed her relationship with [Ms A] was vague, evasive and shifted as she testified. Asked whether [School 2] acted on any of her uncles’ complaints, the applicant replied that they made a rule that fruit within the school compound could only be picked with prior approval from the head teacher. When I put to the applicant that it thus did not seem that the school had subjected her to serious harm or significant harm as a result of her uncles’ complaints, the applicant replied that was because her uncles and the school had different views about her relationship with [Ms A]. She said that while her uncles were suspicious about the relationship, the school believed her relationship was a good friendship. Yet when I questioned why the true nature of the relationship would not have been apparent to the head teacher and school manager given that according to the applicant’s testimony the head teacher lived in the school’s small quarters, [Ms A] was a frequent visitor who stayed with the applicant for long periods of time in the 2 bedroom accommodation she shared with her mother, and the rumours about their relationship in the small community, the applicant responded vaguely and hesitantly that they were different races, that they were Indian.

4. When I questioned the relevance of the ethnicity of the head teacher and school manager, the applicant’s response did not clarify the matter. Instead she stated that they had their own issues and referred to the land and the school, and that the teachers did not mingle with the villagers especially her uncles because her uncles thought they owned the school because the uncles owned the land on which the school was located. But, the applicant continued, that was not how it was. She said the school leased the land and the government funded the school. That response did not explain the relevance of the ethnicity of the head teacher and school manager and appeared intentionally evasive as it concerned a land issue unrelated to [Ms A]’s visits and the head teacher living in the compound. I asked the applicant again why the school would not have suspected the nature of her relationship with [Ms A] given the accommodation arrangements, the head teacher lived in the small compound, and the frequency and length of [Ms A]’s visits. In response the applicant seemed to modify her earlier testimony, replying that ‘they must have suspected’ although, she said, she had no knowledge of that.

5. Questioned further about the significance of the ethnicity of the head teacher and school manager the applicant stated that the head teacher and school manager did not mingle with the villagers to know the gossip, the school was like an Indian settlement although some of her uncles were close to the settlement, 75% of the school students were Indian (ethnicity) and she was the only Fijian (which I understand to mean indigenous Fijian) teacher.

6. It appeared to me that rather than give direct and clear responses based on the actual circumstances at [School 2] the applicant attempted to tailor her evidence to indicate that the head teacher and school manager did not and could not have suspected she was in a lesbian relationship with [Ms A] to explain why she had not been treated adversely by the school as a result of her uncles’ complaints. I note that [Ms C] indicated in her statutory declaration that the applicant was able to pursue a discreet relationship with [Ms A] because the head teacher and the majority of the committee members at [School 2] were Indian and did not know the applicant was a lesbian. While I will accept that the applicant did not tell anyone at the school directly about her sexuality and relationship with [Ms A] given there was no need for her to do so, for the following reasons I do not consider it plausible that the head teacher and school manager did not suspect the applicant was having a lesbian relationship with [Ms A] because of their Indian ethnicity.

7. Firstly, the evasive nature of the applicant’s testimony which I have described above. Secondly, the evidence presented by the applicant which indicates that at least some members of the school committee members were indigenous Fijians including one of her uncle’s, two of her uncles complained to the school about her, and at least 25% of the children were indigenous Fijians many of whom the applicant testified were related to her. That indicates there were ample opportunities for interaction between the head teacher and/or school manager and members of the local indigenous Fijian community and hence for rumours to be heard. Thirdly, I believe it is likely that the head teacher had suspicions about the true nature of the applicant’s relationship given the head teacher lived in the same small quarters as the applicant, [Ms A] visited the applicant 4 times over a period of less than 3 years and lived with [Ms A] in the school quarters for a total of about 10 months. Fourthly, the applicant’s own eventual acknowledgment at the hearing that [School 2] must have suspected the true nature of her relationship with [Ms A]. I thus find that even though the applicant did not declare her homosexuality or lesbian relationship with [Ms A] to the head teacher, school manager or other teachers at [School 2], that they presumed the applicant was a lesbian who was in a lesbian relationship with [Ms A]. 

Complaints by uncles

1. I have concluded that the applicant and [Ms C] have exaggerated the treatment the applicant was subjected to by two of her maternal uncles because of her relationship with [Ms A].  If the applicant was subjected to repeated intimidating phone calls and harassment by two maternal uncles who made complaints about her to [School 2] and Ministry of Education to get her sacked then I expect the applicant would have made some reference to the intimidating calls, harassment or complaints in her protection visa application. But she did not. Instead she merely claimed in her protection visa application that while some members of her maternal family were suspicious about her relationship and some close family members talked about her in the community she was accepted by her family and the school because she was discreet about her relationship.

2. Secondly, when I asked the applicant at the hearing to recount the instances in which her uncles confronted her directly about her relationship, the applicant described only one; the telephone call she said was made in early 2014 by her uncle [Uncle B] during which he threatened to complain to the Ministry of Education. Further, the catalyst for the call was the applicant’s call to his daughter rather that the applicant’s sexuality or relationship with [Ms A]. That indicates the applicant’s sexuality and relationship was a less significant issue for the uncle.

3. Thirdly, if the applicant’s uncle [Uncle A] was ‘always’ making complaints to the head teacher about what the applicant did in his absence such as partying with [Ms A] in the compound, cutting coconut leaves, picking coconuts and ‘many more’ as [Ms C] stated and the applicant feared losing her job if her sexuality was discovered then I expect the applicant would not have repeatedly had [Ms A] come and stay with her in her school quarters. Further, even though [Ms C] stated that she ‘witnessed’ the applicant being ‘disturbed and intimidated’ by members of her family the applicant only described two specific instances  - a complaint by one uncle that resulted in the fruit picking rule and the threat subsequently made by another uncle in early 2014.

4. I thus find that the applicant received one intimidating phone call from a maternal uncle named [Uncle B] in early 2014 during which he threatened to complain to the Ministry of Education about her and that another maternal uncle named [Uncle A] complained to [School 2] about the applicant partying with [Ms A], cutting coconut leaves and picking coconuts. However, I do not accept that the applicant was subjected to repeated intimidating phone calls or to harassment by her uncles because of her relationship with [Ms A] as the applicant and [Ms C] have indicated.

5. Questioned at the hearing about the adverse consequences she was subjected to by [School 2] and the Ministry as a result of her uncles’ complaints, the applicant testified that she had faced none other than the rule about fruit picking. As the applicant mentioned the fruit picking rule during her interview I am prepared to accept that this occurred. It is not apparent on the evidence whether her uncle [Uncle B] carried out his threat to complain to the Ministry of Education. However, even if he did, I find on the evidence before me that the only harm the applicant faced from [School 2] or Ministry of Education as a result of her uncles’ complaints was the introduction of the fruit picking rule.  

Fear of loss of employment

1. I find that applicant’s own conduct indicates that she did not fear her sexuality and relationship with [Ms A] would jeopardise her employment at [School 2] or the Ministry of Education. The applicant repeatedly had [Ms A] stay with her for significant periods of time in small quarters in which her head teacher also lived even though there was considerable speculation about her sexuality and the relationship. Further, despite testifying that in early 2014 her uncle [Uncle B] threatened to complain to the Ministry of Education to get her sacked the applicant had [Ms A] return for a month long visit after that in August 2014. I thus do not accept that the applicant genuinely feared or expressed a genuinely held fear to [Ms C] that her sexuality or relationship with [Ms A] could result her losing her employment.

2. [Ms B] asserted that when the applicant left for Australia the village headman said she was not to return to [School 2] due to her relationship and when she informed the applicant of that the applicant applied for protection. The applicant has made no such claim and gave no indication in her protection visa application that she applied due to such a threat. The applicant’s written statement indicates that she decided she wanted to stay in Australia because she found that a lesbian relationship is accepted here and she can live without fear of exposure, neglect, judgment and being cursed by close family. Further, the applicant’s testimony indicated that while school committee members believed they could dictate certain matters to the school they could not do so and when I questioned the applicant directly about her fear of losing her job she made no mention of the village head stating she was not to return to [School 2]. I thus do not accept [Ms B]’s assertion that a village headman stated that the applicant should not return to [School 2].  

Treatment by local police

1. During her interview with the delegate the applicant claimed that on about four occasions police officers posted near [School 2] pointed her out to members of the public as a lesbian teaching at the school. Asked for further details about the incidents at the hearing the applicant claimed that the police would use a derogatory Fijian word for lesbian as she walked past them to go to the small town centre where the post office was located. She collected money [Ms A] sent her from the post office. She said the police were stationed there from another area. Asked how they would know or why they would suspect she was a lesbian, the applicant replied that it was a small community and that it was not just her mother’s village that was suspicious, and that a neighbouring village as well as Fijians from all over went to that town centre. The applicant speculated that suspicion had spread from her mother’s villages to other villages because the post mistress must have revealed the applicant was receiving money from [Ms A].

2. However, the applicant made no such claims about the local police in her protection visa application. Asked at the hearing why she had not done so the applicant responded that like the harassment she was subjected to at [School 1] she characterised it as harassment. I do not accept that explanation. The applicant did not mention being subjected to harassment of that kind in her protection visa application. The only harm she specifically referred to was psychological disturbance as a result of close family members talking about her in the community.

3. Further, the protection visa application form asked the applicant to explain why she had not sought help in the past and did not think the authorities would protect her if she returned. She made no mention of being called derogatory names by the local police or being pointed out as a lesbian by the local police. If she had been subjected to such treatment in the past then I expect those questions on the form would have prompted her to recount that treatment in her protection visa application.

4. I thus do not accept that the applicant was subjected to derogatory name calling or that she was pointed out as a lesbian by the police in Fiji.

Rejection

1. The applicant stated in her protection visa application that she was accepted by her family and the ([School 2]) school because she was discreet about her relationship with [Ms A]. This was supported by [Ms A]’s written statement. However, the applicant subsequently presented statutory declarations from [Ms B] and [Ms C] which contradicted that. [Ms B] stated that the applicant hardly visited her and her family because of the comments about the applicant’s relationship, and that the community did not socialise with the applicant. [Ms C] stated that part of the community did not accept the applicant particularly her family and that villagers laughed at the applicant, that she never saw the applicant socialising with the villagers of families in the community because she was labelled, verbally harassed, discriminated against, ‘intimated’  and a laughing stock. I find that the statements of [Ms B] and [Ms C] are inconsistent with the applicant’s statement that she was accepted by her family by being discreet about her relationship and hence are significantly exaggerated.

1. Given [Ms A] lived with the applicant in Fiji for about 10 months over a period of almost 3 years and the applicant was the subject of considerable gossip, rumour, and speculation about her sexuality and relationship with [Ms A] and other women by members of her family, community and church in the [District 1] and [Town 1] areas, I find that it is was widely presumed that the applicant was a lesbian and in a lesbian relationship with [Ms A]. In light of that and the information before me that homosexuals experience limited societal acceptance in Fiji especially when they co-habit,[4] I find that there were members of the applicant’s family including two of her maternal uncles, her former church and local community who did not approve of her sexuality and relationships and that the applicant thus felt rejected by them. I thus consider it plausible that the applicant chose not to socialise or interact with some members of her family and community. 

Conclusions about past harm in Fiji

[4] DFAT Report, [3.77].

1. The applicant has consistently claimed that she was discreet about her sexuality and relationship with [Ms A] in that she did not widely and openly disclose her sexuality and lesbian relationship to her family, church, community and the schools she taught in. I thus accept that is true. However, I find that the applicant’s sexuality and relationship with [Ms A] was not entirely hidden or secret and had become an open secret. From at least [Ms A]’s second visit the applicant did reveal her sexuality and relationship to some people who were close to her and accepted her and the relationship - her mother, [Ms B] and [Ms C]. Further, the applicant’s sexuality and/or relationship with [Ms A] was widely speculated about during the time she taught at [School 1] and [School 2] in particular. The applicant was nevertheless able to live and work as a teacher in the [District 1] and [Town 1] areas, have a long term relationship with [Ms A], and have 5 visits from and live with [Ms A] for significant periods of times over a period almost 3 years. Hence I find that while there was a general lack of welcoming and open acceptance of the applicant’s presumed sexuality and relationship with [Ms A] by her family, church and community, there was also a general degree of tolerance. I therefore find that in the applicant’s circumstances the gossip, speculation, disapproval, and general lack of acceptance she experienced does not rise to the level of serious harm nor amount to significant harm as defined in s.36(2A).

2. In relation to the two complaints and one telephone call threatening to have the applicant sacked which were made by the applicant’s maternal uncles, I find that those incidents of themselves do not rise to the level of serious harm or amount to significant harm. Further, that the complaints did result in harm which rises to the level of serious harm or amounts to significant harm as defined in s.36(2A).

3. Finally, I find that even when considered cumulatively the abovementioned harm which the applicant experienced in Fiji in the past for reasons of her presumed sexuality and/or relationship with [Ms A] does not amount to persecution involving serious harm or significant harm.   

Risk of future harm

Risk for reasons related to sexuality

1. The applicant repeatedly claimed to fear being ‘labelled’ as a lesbian if she returned to Fiji – primarily by her family but also others including members of the community in which she settled if she moved away from her family and students she would teach. She said her family would be disgraced and she would feel shame; she would be rejected and an outcast. She also claims she feared bring bashed by members of her family particularly her maternal uncles and testified that if she married [Ms A] the law would not accept her and she would not be able to teach.

2. I accept that if the applicant returns to Fiji she will continue her relationship with [Ms A] for the reasonably foreseeable future given the length of their relationship and because they regard their relationship as a long term one. I thus find that even though [Ms A] will not return to Fiji with the applicant she will visit the applicant in Fiji as she has in the past to the extent possible given her medical condition. The applicant has not presented any evidence that she and [Ms A] have made plans to marry in the reasonably foreseeable future. I thus find that while they view their relationship as a long term one they will not marry in the reasonably foreseeable future. The applicant will therefore not suffer harm for marrying [Ms A] in the reasonably foreseeable future in Fiji and not being able to legally marry [Ms A] in Fiji.

3. At the hearing I noted the applicant’s claim that she had lived discreetly in Fiji and asked how would prefer to live. The applicant replied that she wished to live as she does in Australia - exposing her life with [Ms A] to close friends and to [Ms A]’s sons, grandchildren and parents who love them for who they are as a couple. Questioned about her life in Australia the applicant testified that she has been working as [an occupation 1]. She said that when she is not working she spends her time at home with [Ms A], their friends and [Ms A’s] three grandchildren, or she and [Ms A] visit friends in [a suburb] or go to the [specified] pub. Asked whether she had disclosed her sexuality or relationship to friends or her employers, the applicant replied that it had not come up at work and they had not asked about her personal life.

4. On the basis of the applicant’s testimony I find that the applicant has lived her life and conducted her relationship with [Ms A] in Australia much as she did in Fiji, that is, privately and discreetly. As was the case in Fiji the applicant has not disclosed her sexuality or relationship with [Ms A] widely. As was the case in Fiji the applicant has revealed her relationship with [Ms A] to a few people close to her but has not disclosed her relationship at her work. I thus find that if the applicant returned to Fiji she would continue to live and conduct her relationship with [Ms A] as she prefers and as she has done in Australia, privately and discreetly, rather than to avoid persecutory harm.

5. In determining whether there is a real chance the applicant will experience serious harm or significant harm if she returns to Fiji and lives and conducts her relationship with [Ms A] as she wishes I have had regard to the following information from sources I have consulted about the legal status, attitudes towards and treatment of homosexuals in Fiji:

   a.Fiji is only one of 5 countries that give LGBT people equal constitutional rights.[5] A Fijian law criminalising homosexuality was repealed in 2010 and Fiji’s 2013 Constitution bans discrimination on the basis of sexual orientation.[6] Employment relations law prohibits discrimination on the basis of sexual orientation.[7]

   b.Speaking about the constitution in December 2014 the Fijian Attorney General called for change in societal attitudes towards minorities including homosexuals.[8] Fijian government representatives were represented at the 2015 launch of the United Nations Free and Equal Campaign, a regional campaign against homosexuality phobia and transphobia.[9]

   c.Same sex marriage is not legal in Fiji. In January 2016 the Prime Minister of Fiji was reported to have said same-sex marriage would not occur in his lifetime, that Fiji did not ‘need that rubbish’ and that two women who wanted to marry should go to Iceland to do so and stay there.[10] After some from the LGBTI community expressed a fear of backlash, the Police Commissioner assured the LGBTI community that the police would protect the community in line with the bill of rights in the constitution.[11] In May 2016 the Police Commissioner also offered to meet the LGBTI community, in contrast to his predecessors.[12]

   d.There is some societal discrimination against persons based on sexual orientation although no systematic discrimination.[13] The Fiji Human Rights and Anti-Discrimination Commission reported complaints of discrimination against LGBTI persons in area such as employment, housing and access to health care.[14]

   e.Homosexual men and women experience limited acceptance in Fiji; do not often come out to their families and where they do, especially when they cohabit, they are often not accepted.[15] They may find more acceptance in (the capital) Suva especially in wealthier areas.[16]  

   f.DFAT reports that a belief in the efficacy of ‘corrective rape’ of lesbians is prevalent in the indigenous Fijian community but it is not aware of such cases in recent years.[17]

   g.While some with deeply held religious beliefs found same-sex sexual conduct objectionable, in general attitudes toward LGBTI individuals continued to become more accepting.[18]

   h.DFAT reports that a few NGOs operate in Suva but they are cautious about undertaking public advocacy due to the conservative values of Fijian society.[19]  However, other sources indicate various communities held public events to promote and celebrate LGBTI people and rights such as the International Day against Homophobia, Transphobia, and Biphobia.[20] NGOs include DIVA for Equality, a collective and support group for lesbians and other marginalised women[21] and the Drodrolagi Movement, a movement founded in 2010 to create and celebrate a culture of equality, respect, dignity and pride for the LGBTQI community in Fiji.[22]

   i.DFAT assesses that LGBTI Fijians are at low risk of official discrimination and moderate risk of societal discrimination.[23]

   [5] Taylor, L., ‘Only five countries give LGBT people equal constitutional rights: research’, Reuters, 29 June 2016,

   [6] DFAT Report, [3.75].

   [7] United States Department of State, ‘Fiji 2017 Human Rights Report', 20 April 2018, p.20,

   [8] Fiji Sun, ‘Accept Minority groups, says A-G’, 8 December 2014,

   [9] RNZ [Radio New Zealand], ‘pacific campaign launched against homophobia and transphobia’, 11 August 2015,

   [10] RNS, ‘Fiji PM’s gay marriage comment shock’, 6 January 2016, pacific/293597/fiji-pm's-gay-marriage-comments-shock.

   [11] United States Department of State, ‘Fiji 2016 Human Rights Report', 3 March 2017, p.23,

   [12] ABC [Australian Broadcasting Corporation] News, ‘Fiji police reaches out to LGBTI community’, 10 May 2016,

   [13] United States Department of State, ‘Fiji 2016 Human Rights Report', 3 March 2017, p.23,

   [14] United States Department of State, ‘Fiji 2017 Human Rights Report', 20 April 2018, p.20, DFAT Report, [3.77].

   [16] DFAT Report, [3.77].

   [17] DFAT Report, [3.77].

   [18] United States Department of State, ‘Fiji 2016 Human Rights Report', 3 March 2017, p.23,

   [19] DFAT Report, [3.77].

   [20] United States Department of State, ‘Fiji 2016 Human Rights Report', 3 March 2017, p.23, Fiji Sun, ‘Activists March Through Capital City to promote Human Rights’, 10 December 2017, See DIVA for Equality website at

   [22] See Drodrolagi Movement Facebook page at about/?ref=page_internal.

   [23] DFAT Report, [3.78].

I discussed the independent evidence with the applicant at the hearing and the issue of whether she faces a real chance serious harm or significant harm in Fiji for reasons of her sexuality and relationship with [Ms A]. In response the applicant gave examples of homosexuals who had been harmed in Fiji. She said that when she taught at the [School 1] School a lesbian in a neighbouring village was bashed after being caught in bed with another woman and her case was not taken seriously. Questioned further about this incident, the applicant stated that the woman was assaulted by members of her family and that the incident occurred in 2005. I suggested that circumstances had changed since 2005 particularly given the anti-discrimination provisions in 2013 constitution. The applicant did not agree and then raised what seemed an unrelated matter about a fourth or fifth maternal cousin making a report to the police in 2013 about her taking too much leave when she took leave for one of [Ms A’s] visits. The applicant said she raised the matter with her head teacher who informed the applicant that her leave had nothing to do with the relative and was a matter for the school. The applicant also referred to two gay men who could not make a police report because they feared how the police would treat them. Asked whether she was referring to the news report regarding the assault of two gay men that had submitted to the Tribunal[24] and whether the men feared the police (as indicated in the article) or their attackers, the applicant indicated that they feared being labelled and those who attacked them if they made a report. The applicant referred to people expressing their adverse opinions about homosexuality and same sex relationships and referred to the remarks of the Fijian prime minister about same sex marriage as indicative of the discrimination she would face harm if she returned to Fiji despite the constitution. Her migration agent submitted that the articles presented to the Tribunal and many others readily available indicate that despite the legislation in Fiji the applicant would face enormous significant harm, primarily the deprivation of employment and eviction from family relationships.

[24] Tribunal file 1516098 at f.53.

I have considered the evidence, arguments and submissions made by the applicant and her migration agent including the material submitted regarding the treatment of homosexuals in Fiji. I have given very little weight to the RRT Country Advice given it was prepared almost 9 years ago, before the 2013 Constitution and focusses on the circumstances of Hindu Indo-Fijian lesbians. The other remaining material indicates that instances of discrimination and acts of violence have occurred against homosexual persons in Fiji. While such instances of harm are a relevant consideration, they do not necessarily indicate the applicant faces a real chance of serious harm or significant harm.

I find that the totality of the independent evidence before me indicates that the law in Fiji protects the rights of homosexuals and the Fijian authorities generally uphold those rights. I find that the reported remarks of the Fijian Prime Minister in 2016 about same-sex marriage are not indicative of systematic discrimination or harm amounting to serious harm or significant harm by the government or the authorities in Fiji against homosexuals or homosexual couples. The independent evidence indicates that while there is not widespread approval or acceptance of homosexuality within Fijian society and that unsupportive opinions about same sex marriage have been publically expressed,[25] there is a general degree of societal tolerance of homosexuals particularly in the capital and that discrimination is not systematic. The information shows that LGBTQI organisations exist and public events occur which celebrate and support LGBTQI people. While instances of discrimination and violence against homosexuals occurs in Fiji, mainly by non-state parties, the evidence before me does not indicate that instances of serious harm or significant harm against homosexuals and particularly lesbians occurs with such frequency as to give rise to a real chance of serious harm of significant harm for reasons of homosexuality.

[25] Such as those in the online chat records the applicant produced at the hearing: Tribunal file 1516098 at ff.119-122.

In addition to the preceding assessment about the general situation in Fiji I have had regard to the applicant’s particular circumstances in assessing whether she faces a real chance of serious harm or significant harm if she returns to Fiji. I accept that some members of the applicant’s family and community will ‘label’ her a lesbian and will not accept her, and that she will consequently rejected and outcast by them. However I find that such harm does not rise to the level of serious harm nor amount to significant harm in the applicant’s case. The applicant’s past conduct in continuing her relationship with [Ms A] in Fiji and having lengthy visits from [Ms A] even though she was the subject of considerable gossip and widely presumed to be a lesbian and/or in a lesbian relationship with [Ms A] leads me to conclude that family and community attitudes towards her sexuality and relationship with [Ms A] are not as significant a concern for the applicant has she has sought to portray.

Further, I find that the applicant does not genuinely believe nor is there a real chance that members of her family will bash her or subject her to any other form of physical harm, serious harm or significant harm if she returns to Fiji. The applicant had to be prompted at the hearing to recount the claim she made in her protection visa application that she feared being bashed by her family if she returned to Fiji. If she genuinely believed her family would physically harm her then I expect she would have been more forthcoming about that fear at the hearing. The applicant told the delegate that her family had never harmed her in the past and there was no history of family violence. Questioned at the hearing about why she feared being physically assaulted by her family when they had not physically harmed her in the past despite widespread speculation about her relationship with [Ms A], the applicant replied that she was the only lesbian in the family, they were Christians, they did not want her to curse the family or give the family a bad name so they would bash her or correct her or marry her to a man. If those factors would lead members of the applicant’s family to physically harm her in the future then I expect that they would have led her family to physically harm her in the past. The fact the applicant’s family has not physically harmed her in the past and has no history of family violence indicates there is not a real chance they will bash her in the future. Further the applicant had not previously claimed she would be ‘corrected’ or forcibly married to a man. If she genuinely feared such harm I expect she would have made that claim earlier. I thus find there is not a real chance that the applicant’s family will physically harm, ‘correct’ her or force her to marry a man if she returns to Fiji.

I do not accept that the applicant will be unable to return to teaching due to her sexuality or relationship with [Ms A] as she and [Ms A] testified. The applicant has considerable experience as a teacher and, as indicated above, the law would make such discrimination unlawful, there is no systematic discrimination and the applicant’s past indicates she was able to teach despite the widespread assumption that she was a lesbian and in a lesbian relationship with [Ms A]. I find that the applicant will be able to find employment as a teacher if she returns to Fiji and hence will be able to afford a place to live or live in school provided accommodation as she has done in the past. 

1. On the basis of my assessment of the independent evidence, my findings about the applicant’s particular circumstances, the harm she has faced in the past and considering the risk of harm the applicant would face if she returns to Fiji, individually and cumulatively, I find there is not a real chance that the applicant will be subjected to serious harm or significant harm as defined in s.36(2A) for reasons of her (actual or resumed) sexuality and/or relationship with [Ms A] in the reasonably foreseeable future in Fiji by any state and/or non-state parties.

Protection visa applicant

1. The applicant and her migration agent claimed towards the end of the hearing that the applicant will be denied employment if she returns to Fiji on the basis of an article said to have reported that the Fijian prime minister has declared he will ensure that anyone who has applied for a protection visa overseas will be deprived of any employment opportunities. No such article has been produced to the Tribunal. Nor do I consider the mere reference to such an article in the affidavit of another applicant to be credible evidence that the prime minister has made such a declaration. Further, I have found no evidence that the Fijian prime minister has made such a statement or that failed protection visa applicants who return to Fiji are deprived of employment. I thus do not accept that the applicant will be deprived of employment if she returns to Fiji because she applied for a protection visa.

Religious practice

1. The applicant testified that she ceased attending church in Fiji after [Ms A] visited her for the first time in 2011. She testified that she permitted a church minister to visit her mother at her school quarters in [School 2] but that she (the applicant) did no longer attended church. The applicant testified that her faith in Christ has not been affected by her interest in girls and that in Australia she practices her Christian religion by doing devotions at home with [Ms A]. The applicant has not claimed that she would wish to resume attending church if she returned to Fiji or engage in any other religious activities. The applicant has not claimed nor does the evidence before me indicate that the applicant would be unable to continue practising her religion by doing devotions at home if she returned to Fiji.

Conclusions on protection visa criteria

1. Having found that there is not a real chance that the applicant will face persecution involving serious harm for reasons of her sexuality and/or relationship with [Ms A] if she returns to Fiji and that she will not be deprived of employment in Fiji because she has applied for a protection visa, I conclude that the applicant does not have a well-founded fear of persecution with the meaning of s.5J(1). She is consequently not a refugee as defined in s.5H(1) and I am therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

2. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa). I have found there is not a real chance the applicant will suffer significant harm as defined in s.36(2A) for reasons of her sexuality and/or relationship with [Ms A] if she returns to Fiji and that she will not be deprived of employment in Fiji because she has applied for a protection visa. I thus find that there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country (namely, Fiji), there is a real risk that she will suffer significant harm. Therefore I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

3. 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

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

Mila Foster
Member

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.

…