1518023 (Refugee)

1518023 (Refugee) [2017] AATA 2995 (4 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1518023
COUNTRY OF REFERENCE:                  Fiji
MEMBER:Ms Christine Long
DATE:4 December 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.
Statement made on 04 December 2017 at 10:27am

CATCHWORDS
Refugee – Protection Visa – Fiji - Particular social group – Indo Fijian woman without male protection – Fear of violence – Sexual assault – Real risk of future harm – Relocation – Future harm limited to local area – Relocation to other areas possible

LEGISLATION
Migration Act 1958, ss 5H, 5J, 5K, 5L, 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration [in] December 2015 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who are citizens of Fiji applied for protection visas [in] May 2015. The second named applicant applied as a member of the same family unit as the first named applicant (the applicant). The delegate refused to grant the visas on the basis that the applicants were not persons in respect of whom Australia has protection obligations under the Act.

CRITERIA FOR A PROTECTION VISA

The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

Mandatory considerations

In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

CLAIMS AND EVIDENCE

The Tribunal has before it the Department’s file in relation to the applicants which includes their applications for protection visa, a CD of the applicant’s interview with the delegate [in] October 2015 and the delegate’s decision record dated [in] December 2015. The Tribunal also has before it the applicant’s application to this Tribunal for review, various printouts of country information provided by the applicant in support of her claims including country information about the high rate of violence/domestic violence against, and sexual abuse of, women in Fiji, a submission dated [in] September 2015 in support of the application for review and further country information documents produced by the applicant’s representative in support of the applicant’s claims at the hearing.

Claims in Application for Protection Visa

In her application for protection visa (Form C) the applicant states that she was born in [City 1] in the Fiji Islands in [birth date]. She states that her ethnic group is Indo Fijian and her religion is Hinduism. She indicates that she is in contact with her family in Fiji via telephone. She states that she began a de facto relationship in January 2004 and was separated from her de facto partner on 10 February 2005. The applicant states that she left her country [in] March 2015 and entered Australia as a visitor on that date. She travelled using a passport in her name; the applicant submitted a copy of her passport and that of the second named applicant to the Department with the application for protection visa and a copy of the passports are on the Departmental file. The passports are noted as issued in Fiji in [2009] and they expire in [2019]. The second named applicant’s passport indicates that he last travelled to Australia after the applicant and entered Australia [in] May 2015. Both passports indicate that the applicants travelled to Australia previously; they arrived in Australia from Fiji [in] February 2010 and departed Australia [in] May 2010. Their visitor visas for that visit to Australia as stamped in their passports show the visas were granted in [City 2] [in] January 2010.
The applicant gives her places of residence in Fiji while she resided there; she indicates that she lived at the same address in [Address 1], [City 1] from 2010 to 2015 prior to coming to Australia. She indicates that in Fiji she has worked variously in [City 1] as [various occupations] in Fiji. In her application she states that she last worked in Fiji as [occupation] in [City 1] from August 2011 until “current”. She gives her education background and indicates that following high school she studied [area of study] and also she studied [another area of study] at [University 1], [in City 1], from April 2014 until July 2014.
The applicant states that she left her country and cannot return there because her life was/will be in serious danger. She said she experienced several incidents in Fiji which she reported to the police and that similar problems will occur wherever she moves. She fears she will be physically harmed and will suffer sexual assaults in Fiji. She said that her experience in the past shows the authorities will not protect her. She states that she cannot relocate to avoid harm as the problem exists throughout Fiji.
In the statutory declaration declared [in] May 2015 in support of the application for protection the applicant states that if she returns to her country her life will be in danger because of her race/religion and because of her membership of a particular social group being an Indian young woman living without the protection of a male. She states that she left Fiji because she could not live there safely. She declares that she was separated from her de facto partner in 2005 and then moved back to [Address 1] area to live with her father. She states that she lived in that area with her father, step mother and her son until her father passed away [in] 2013 and after that she stayed with her step mother and her son. She said that after her father passed away she was harassed by indigenous Fijians. They knocked at her door at night and then ran away. Also they stole her clothes from the line and threw stones on her roof at night. She complained to the [City 1] police about the harassment twice but the police did not come due to lack of transport. Police did come to see her once and asked her if she knew who was harassing her but she did not know; the police told her to let them know if she saw these people. Her step mother who is frail and who was afraid of what was happening went to live sometimes with her brother (the applicant’s step uncle) who lives [a distance] away from the applicant. After the applicant came to Australia [in] March 2015 the applicant’s step mother moved to live with her brother with the applicant’s son.
The applicant continues that from around the middle of July 2014 she was harassed by some Fijian men when she was coming home from work with comments which she describes as of a sexual [nature]; she did not respond to these comments. Also she was frightened by someone jumping out of the bushes at her and trying to hold her hand when she was coming home [in] September 2014. She screamed and told him to leave her alone and he went away.
The applicant continues that [in] October 2014 her purse was snatched by two men and she was pushed to the ground, kicked and abused with a reference to her race. She could not see the faces of these men as it was dark. She reported this incident to the police and the police talked to people in the area and said that they would be in touch with her. Since that time men from the houses around her have been harassing and bullying her. She was called an “Indian bitch”, told to go back to India and has had lemons thrown at her.
[In] November 2014 her dog was killed, its body thrown in the compound with a note saying she would be next. Her step mother was upset with her for reporting the incident to the police and her step mother told her the police would not help her because she was Indian.
[In] November 2014 when she was at the house alone two men broke into her house and one of them [assaulted her] and the other stole items from her; they ran away when they heard her step mother and her son arriving by taxi at her place. She went to the clinic nearby and was given Panadol by a male nurse there. Her step mother took her to her (the step mother’s ) brother’s house but her step uncle only accepted her on condition that she not complain to the police about what happened; he feared his house and family would be attacked. He said she could only stay a few weeks. She did not complain to the police about this incident because she had no choice and also she feared they might come back and kill her.
The applicant said that such incidents happen to Indian young women who have no male to protect them.
In Form B of her application and in her personal particulars form the applicant indicates that her son, born in [birth date] (the second named applicant) is not raising his own claims for protection. She indicates that members of the same family unit who are not in Australia are her step mother (born [birth date]), [various siblings] ([birth dates of siblings]), [a number] of whom are married, and she has [other married siblings] (born [birth dates]). She indicates that her family members live in Fiji apart from one of her sisters who lives in [Country 1]. She indicates that since birth she herself has lived in [City 1] in Fiji.

Claims made in Interview with Delegate [in] October 2015

At the interview with the delegate the applicant confirmed the details of the members of her family unit. She confirmed that her step mother lives in [a location] in [City 1], her [sibling] lives in [Town 1], [another sibling] lives in [Address 1] [City 1], [another sibling] lives in [City 2], [another sibling] lives in [a city] and her other [sibling] lives in [Country 1].
The applicant gave the delegate her passport and information about her siblings. She said that she had to come to Australia previously with her son because she had to come on a [trip]. This trip was sponsored by a family friend whom she knew through her sister in [Country 1]. She does not know him personally and has not spoken to him about her problems. She is not aware of whether her sister told this person about her problems in Fiji. Her sister could not sponsor her to [Country 1] as she lives with her in laws there and her in laws were not happy or supportive about this. The applicant said that she wanted to move from Fiji permanently because of what happened to her there; she told her sister in [Country 1] her problems and her sister wanted to help her. She just told her sister she could not handle what was happening to her in Fiji. Her sister in [Country 1] could not help her from her side so her sister spoke to the person who sponsored her to come to Australia. Her sister did not pay the person money to get the sponsorship for the applicant to come to Australia. It took a while to get him to decide to do it.
The applicant said that her step mother is living in [City 1] with her (the step mother’s) brother in a settlement. The applicant explained that her aunt who lives in Australia is her mother’s sister not her step mother’s sister. Her step mother’s brother with whom her step mother lives resides in a [residence]. His wife lives with him there too. He has lived there for a while. The applicant said that she has siblings in Fiji. [A sibling] lives in the area she herself lived in Fiji, in [Address 1]; he lives [a distance] from where she was living before she came to Australia. He has his own house there; he owns this house and it is in a rural area. He works as [occupation]. He is married with two children. The other brother is in [Town 1]; he is married with one son and his wife works too. The applicant said her sister works in [occupation] and lives in [City 2]. She is married and her husband works as [occupation]; they have one daughter. [Her] half brother is staying in [a city] with his uncle. He works sometimes in whatever job he can get. He has finished school. Her sister in [Country 1] is a citizen there and she is married. The applicant said that her only relative in Australia is her aunt.
In 2008/9 [one of the applicant’s siblings] visited Australia.
The applicant said that she moved back to [Address 1] in 2005 when she was separated from her de facto partner. [Address 1] is rural. It is in [City 1] but away from the city. There is electricity and running water and phone services there.
The applicant said that in her family only her sister in [Country 1] knows she has applied for protection because she is not close to the other siblings. Her step mother knows about her sexual assault; otherwise only her sister in [Country 1] knows about the assault. The son saw that something had happened when he came home that day.
The applicant said that she did her [course] in Fiji in 2014 because she wanted to do work in [a particular occupation]; there was a need for it in Fiji. She intended to remain in Fiji and work there. She did not intend at that time to apply for a [visa] in Australia. She did work experience with [details of work experience]. She found this work herself and it was unpaid; she did not do a [official placement]. She did the study and [experience] outside working hours/part time. She was able to travel to the university because it was located in the city where she was working. She was working in a [business] from 2011 and last worked there before she came to Australia in 2015 [in] February. The store is doing well there in Fiji despite the economy.
The applicant said that her visa application to come to Australia was lodged [in] January; the applicant said she was given two weeks annual leave. The applicant said that she resigned her job after she came to Australia the last time, maybe two weeks after she came to Australia. She agreed this would have been about mid March. The applicant said that she did not explain to her employer what happened to her but she resigned because she only had two weeks leave. She did not ask to extend her stay in Australia. She did not have any employment problems before she came to Australia.
The applicant said that she had problems with local people after her father’s death; her father was fearless when he was alive and no one dared to come when he was there. She had problems after his death [in] 2013 from about late October; stones were thrown at the home (about 5 times) , clothes were taken from the line (two times) and people knocked at her door at night (about 4 times). These events happened at night, at random times. These things initially happened late October and lasted till May 2014. From late October 2013 till May 2014 she complained to police twice. They said they could not come in November 2013 when she complained but the police came in April and talked to local people. The applicant said that she did not call the police after that because nothing happened and the problems continued. She then said the problems stopped in May 2014 but there were problems in mid May 2014 before the problems stopped; at that times there were stones thrown and knocking on the door once.
The applicant said that in July 2014 Fijian men who were drinking started to talk to her when she was coming home from work and making comments of a sexual nature to her. She ignored them but the problem started from there; before that she suffered no sexual harassment. She had no problems coming home from university in [City 1]. The applicant said that it was only when she was alone the problem started; when she got off the bus alone. She finished her course in July 2014. After her father died they threw stones but these people ran away when she looked. The sexual harassment was on going but she did not think it would lead to bigger problems. She started doing regular hours and stopped working late from October 2014. She went to [the] police when her purse was taken and they came to the area and talked to a few people but the police did not get in touch with her after that as they said they would. After this incident she was harassed, insulted and lemons were thrown at her. Her step mother left to stay with her (the step mother’s) brother and the applicant had to ask her to return home to live with her because she was scared. Her step mother’s brother only allowed her a few weeks to live with them.
The applicant said that she and her own brother who lives in the same area are not on good terms because of her earlier de facto relationship. She has not been close with her other siblings after her mother’s and father’s death; they do not visit. Binesh moved away and stayed with his maternal uncle.
The applicant said that in November 2014 she came home and was lying in bed with a headache. Her son and step mother were at her step mother’s brother’s place. Two men entered the house. One held her by the mouth and told her to shut up or he would kill her. [Details deleted]. The other person looked out and stole things from her. When a taxi came home with her step mother and son the men ran away through the back door. Her step mother was shocked to see her condition when she came to get the taxi fare and the applicant told her what had happened. She packed up things and went to a medical centre in [City 1]. She told a male nurse there what had happened and he gave her Panadol. He told her to go to the police but she did not contact the police because the male who assaulted her had said he would kill her if she did so. They went to her step mother’s brother’s (step uncle’s) place. The applicant then said that she told the brother/her step uncle what happened. The step uncle was scared he might suffer harm and he was not happy for her to stay more than a few weeks with them. He said he would not allow her to stay there if she complained to the police. Her step mother was already scared when she complained to police about the dog and the note. Her step mother was not happy for the applicant to complain to the police and said they would not help her because she was Indian. It did not matter if she went to an Indo Fijian police officer; she was scared after she was threatened by the man during the incident. She did not consider going to any other support agency, and did not go to a doctor; she was lost about what to do. She did not go to a counselling service; her problem is an ongoing issue in Fiji and nothing is being done. After the incident her step mother did not return to the house where the applicant lived apart from going there to check it. No one is living at the house.

The applicant named the medical centre she went to after the sexual assault and said that it is [details of medical centre].
The applicant said that she told her sister in [Country 1] by phone about the incident about one week afterwards. She told her sister that she faced this problem and wanted to come to [Country 1] but when her sister talked to her in laws they were not supportive. The applicant said that when she told her sister in [Country 1] about the sexual assault her sister said that she could not help the applicant. The applicant said that she did not tell her other sister in Fiji because she did not visit her and they did not have a bond with each other.
The applicant said that after the incident she stayed with her step uncle until she went to Australia; initially he said she could stay there for a few weeks on condition that she did not complain to the police. He allowed her to stay longer when he knew she was going to Australia because he then knew she would not be staying there at his place for long. The applicant said that she does not think he thought she was going to stay in Australia because there was no guarantee she would stay here forever. When she came to Australia her initial plan was to just get away from the problem and seek shelter. She did not make arrangements to stay anywhere in Fiji after a return from Australia to Fiji even though she only had two weeks leave from work. She said that “Anywhere I go I will face the same problem”; Indian women when they are alone are targeted by Fijian men.
When she was contacted by Immigration in Fiji about her application for her visa to come to Australia she was at work. She gave [Address 1] to the Department as her address on that occasion because that was her place. Although she was staying with her step uncle at that time she preferred to give her own address because she had just moved to her step uncle’s address to stay. She was not in any state to think about what address she should give.
The applicant said that after the assault which took place on [a day of the week] she did not go to work for two days. She had to get clothes from home. She told work she was not feeling well. She did not give the employer the address where she had moved to stay with her step uncle.
The applicant said that she will face the same problem if she returns to live in Fiji; she will be targeted by Fijian men because she is without any protection. She cannot live anywhere else in Fiji because there will be the same problem. She has no male protection and no one to look after her. Her brothers will not step in to help her. The brother in the same area as she lived has had no relationship with her after her de facto relationship. [One sibling] lives with his in laws and cannot help her. She said that she cannot board with another Indo Fijian family in a settlement because they will not be with her all the time and she cannot stay in a shelter in an urban area which is Indo Fijian (eg female share household) because her son was aware of the problems she had. She said that it is not easy to change places. In any event the communities are mixed. She agreed with country information put to her that about 30% of the community are Indo Fijian but she repeated that she would face the same problems wherever she went. She has heard of a few cases like her. The applicant said that when her father was there she was not scared. Her family, including her step uncle, cannot/will not help her move to another Indo Fijian community to board.
Claims Made in Application for Review
In her application for review lodged 28 December 2015 the applicant makes no new claims. The applicant sent the Tribunal a copy of the delegate’s decision record refusing her application for protection visa.
On 29 May 2017 the applicant sent the Tribunal further information about violence against, and harassment of women, in Fiji in support of her claims. This information comprises an article from Asia and Pacific Edition dated 5 August 2016; a print out from The Fiji Times Online dated 24 August 2015 (a contribution from the Fiji Women’s Crisis Centre); a print out from World Travel Pacific dated 5 December 2016 referring to an Amnesty International Report about Fiji; and a print out of a document headed Breaking News referring to the high rate of domestic violence in Fiji.
On 6 September 2017 the Tribunal received a further submission dated [in] September 2015 from the applicant in support of her application for review. It is submitted that the applicant has suffered harm in the past in Fiji and would suffer the same types of harm if she returned there. It is submitted that “her case is based on the Convention reason of membership of a particular social group” being “young women without male protection in Fiji”, “young Indian women without male protection in Fiji” and or Indo Fijian women in Fiji”. The submission addresses the issue and prevalence of sexual violence against women in Fiji and notes that victims do not get the full support from family networks who fear problems from the local community; it is submitted that neither the police nor family and/or relatives are fully sympathetic or supportive. It is submitted that the Fijian system is driven towards reconciliation. It is submitted that the applicant will not be safe in Fiji as she is an Indo Fijian woman outside the protection of a male-headed household. Indo Fijian women are marginalised and vulnerable to domestic and other violence.
It is submitted that the applicant wants to live on her own with her son and not be forced to live with some other family and there is no one in Fiji who can provide protection for her. It is submitted that the delegate made only general propositions about her family members’ support of her and did not look at each relative’s situation nor examine why her relatives did not support her in the past.

Tribunal Hearing

The applicant appeared before the Tribunal on 15 September 2017 to give evidence and present arguments in support of her claims. The hearing was conducted with the assistance of an interpreter in the Hindi (Fijian) language. The applicant’s representative was present at the hearing.
The applicant produced her Fijian passport and that of the second named applicant to the Tribunal at the hearing; both passports were issued in [City 1], Fiji [in] 2009. Copies of the passports are placed on the Tribunal file.
The applicant spoke to the Tribunal about her background, her application for protection visa and her claims. Her evidence was essentially consistent with what she had set out in her visa application and what she had told the delegate at interview.
At the hearing the Tribunal asked the applicant whether she feared harm in her country because of her race and /or religion as she had included these claims in her statutory declaration declared [in] May 2015. She confirmed at the Tribunal hearing that what she feared in Fiji was being an Indo Fijian woman who is alone; she said the same thing would happen to her as happened before, if she were to return to live in Fiji. The applicant’s adviser also confirmed that her being Indo Fijian was not a separate claim. The applicant made no claims before the delegate or the Tribunal that she feared harm in Fiji because of her religion.
At the hearing the applicant’s adviser gave the Tribunal further independent country information in support of the applicant’s claims being a print out of an article from New Zealand Family Violence Clearinghouse dated December 2013 stating that new research finds that Fiji’s rates of Violence against women and girls are among the highest in the world; a print out of an article written by journalist Sonia Narang, published in May 2017, entitled “Climate Change Drives Domestic Violence in Fiji” which highlights the work done by the Fiji Women’s Crisis Centre to assist women who suffer from domestic violence and abuse during disasters.

Country Information

In addition to the country information produced by the applicant in support of her claims the Tribunal also consulted ‘DFAT Country Information Report - Fiji’, DFAT, 27 September 2017; Country Report on Human Rights Practices 2016-Fiji US Department of State, 3 March 2017; Gender Violence & Human Rights: Seeking Justice in Fiji, Papua New Guinea & Vanuatu, Biersack, A, Jolly, M & Macintyre, M (eds), Australian National University, 2016.

FINDINGS AND REASONS

Essentially the applicant claims that she left her country and cannot return there because she feared, and continues to fear, harm from Fijian men, in particular indigenous Fijian men, because she is an Indo Fijian young woman without male protection and living alone in Fiji /a young woman without male protection in Fiji /a young Indian women without male protection in Fiji. As noted above the applicant clarified before the Tribunal that that what she feared in Fiji was being an Indo Fijian woman who is alone; she confirmed that her being Indo Fijian was not a separate claim.
The Tribunal accepts that the social groups nominated by the applicant/applicant’s adviser amount to a social group/social groups for the purpose of the Act.
The Tribunal accepts that the independent country information available indicates that abuse of, and violence/domestic violence against, women in Fiji, including Indo Fijian women, is high. The Tribunal accepts that a young Indo Fijian woman living alone in Fiji would be more vulnerable to this abuse and violence in Fiji as the applicant claims. The country information consulted by the Tribunal supports in a general way the applicant’s claims that she suffered harassment, abuse, including physical abuse and sexual abuse in Fiji and that the police did/do not always have the capacity to protect her (see for example DFAT Country Information Report, Fiji, 27 September 2017, paragraphs 3.69 to 3.74). Clearly however the Tribunal must determine whether, for the purposes of the ‘refugee’ criterion, the applicant before it has a genuine fear founded upon a real chance of persecution for one or more of the reasons of her race, religion, nationality, membership of a particular social group or political opinion, if she returns to Fiji, or, for the purposes of s.36(2)(aa) (‘the complementary protection criterion’), whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, in this case Fiji, there is a real risk that the applicant will suffer significant harm.
Country of Reference
The Tribunal accepts that the applicant and the second named applicant are who they claim to; the applicant produced their Fijian passports to the Tribunal at the hearing.
Background
The Tribunal accepts the applicant’s evidence to it at the hearing that she lived with her father and her son, the second named applicant, after separating from her partner, who was her son’s [father]. It accepts that after 2005 she lived with her father in [Address 1] about [distance] outside of [City 1]. She told the Tribunal at the hearing that the area was semi rural, away from the town of [City 1] and that she travelled to and from her employment in [City 1] by bus which took about [duration]. She also told the Tribunal that she undertook part time [study] in [City 1] for [a short time] ending July 2014. The Tribunal accepts this evidence is true. The Tribunal also accepts that the applicant’s father died in September 2013. The applicant has been consistent in her evidence about these facts.
Incidents of prior harassment and harm in Fiji
The Tribunal also accepts the applicant’s evidence which she gave to the Tribunal at the hearing that following her father’s death, from about October 2013, she had trouble on several occasions from local Fijians who would take clothes from her line, knock on the door and run away and throw stones on the roof. The Tribunal also accepts the applicant’s evidence to it that she reported these incidents of harassment to the police and although the police could not come the first time because they had no transport they did attempt to talk to her neighbours about the incidents and asked the applicant if she knew or recognised those involved but she did not.
The Tribunal also accepts that on occasions (in July and September 2014) local Fijian men made comments to her of a sexual nature when she was coming home from work alone as she claims in her statutory declaration made [in] May 2015.
The Tribunal also accepts the applicant’s evidence to the Tribunal that her bag was snatched from her in her local area; in her statutory declaration the applicant declares this occurred [in] October 2014 and that during the incident she was pushed to the ground, kicked and verbally abused by reference to her race. The applicant told the Tribunal that she reported this incident the next day to police at [City 1]. The police asked her for her details and asked if she knew those involved in the bag snatch which she did not. She said that the police attempted to help and talked to people in the local area after she reported the incident but nothing came of the police actions.
The applicant also said that after she reported the bag snatch incident to the police her dog was later killed and a note was thrown in to her compound stating that she would be next. When the Tribunal asked her about his incident she said that she did not go to the police about this incident because her step mother believed this happened because she had gone to the police about the bag snatch incident and that the police had questioned people in the area. When the Tribunal queried why she would go to the police about the other more minor incidents and not about this incident which was more serious in that there was a threat made to her she said that it was because of what her step mother said and because nothing had come of her other reports to the police about her earlier harassment.
The applicant told the Tribunal that those she was having trouble from were locals although she did not know them and that her bag was snatched locally although she reported the incident at [City 1] the next day. The Tribunal accepts as true the applicant’s evidence about these local incidents and accepts that they occurred after her father died in [2013].
Not without some doubt about the matter the Tribunal also accepts the applicant’s evidence that [in] November 2014, when the applicant was alone, two men whom the applicant did not know and who were different from the other men who had harassed her, broke into her house [at Address 1] and she was abused and [sexually assaulted by] one of the men who held her and slapped her; the applicant was living in the house with her step mother and her son who were absent from the house at the time of the incident. The Tribunal accepts that the men fled when her step mother and son arrived home about 8.30 pm. The Tribunal has some doubts that the applicant is telling the truth about this claim given that she did not report this very serious incident to the police although she had been to the police about other more minor incidents and also given the account she gave the Tribunal of her visit to [a medical] centre which she attended for treatment after the incident, at about 9.30 pm. She named a local [medical] clinic that she attended and when the Tribunal asked her why she went there she said that the centre also has a clinic. When the Tribunal asked her about her treatment after the incident she said that she did not see a doctor because a male nurse whom she saw there said that it was not necessary because [details of incident]. When the Tribunal asked her about any bruising from being held or from the slapping during the assault she said she was injured when she was slapped and that her bruising was “not too bad”. She said that the male nurse looked at her face and gave her Panadol and said that there was no need for him to examine her. The nurse did not suggest she see a doctor or a counsellor. When the Tribunal asked her about records from the clinic that might substantiate her claims that she attended the clinic for the reasons that she claims she said that the nurse just asked her what happened; she did not think there would be any records and that she did not have to pay or use her card to pay. She said that cards are only used in the main clinic and that most hospitals are free although she agreed that hospitals keep records. She said that you only pay in private hospitals. When the Tribunal asked her again about a record of her attendance at the clinic she said that she did not think there would be a record as no details were taken from her. When the Tribunal queried this further the applicant said that the nurse felt it was not necessary. When the Tribunal asked the applicant why she did not report this very serious incident to the police the applicant said that she was scared to do so as the men threatened to kill her if she did. She also said that her step uncle only allowed her and her son to stay in his house after the incident and before she came to Australia on condition that she did not report the matter to the police. He thought that he would be in trouble from/targeted by these people if she went to the police. She told her step uncle they had said to her that they would kill her. While the Tribunal has some doubt these accounts of events are true, on this occasion it gives the benefit of that doubt to the applicant.
To the extent that she makes the claim, the Tribunal does not accept that the applicant could not get protection from the harm she experienced or fears in Fiji because she is Indo Fijian or an Indo/Fijian woman/a woman alone without male protection in Fiji. She told the Tribunal that police came on all but one occasion when she reported the incidents and talked to her and neighbours about the incidents but no outcome eventuated; she did not know her assailants. To the extent that she makes the claims the Tribunal does not accept that there was no outcome from the police enquiries because the applicant is Indo Fijian or an Indo/Fijian woman/a woman alone without male protection in Fiji.
Does the harm feared amount to Serious Harm or Significant Harm
The Tribunal finds that considered separately some of the difficulties that the applicant experienced in her country and which she fears will happen again if she returns to Fiji amount to harassment and/or general criminal conduct and do not amount to serious harm for the purposes of the refugee criterion or significant harm for the purposes of the complementary protection criterion. In the Tribunal’s view the bag snatch incident which the applicant describes is an incident of general criminal conduct. Although the Tribunal accepts that during the bag snatch incident which the applicant describes the applicant was at one point abused by reference to her race, the Tribunal finds that the applicant was not targeted for harm during this incident for one or more of the reasons of her race, religion, nationality, membership of a particular social group or political opinion during this incident. Nor was this harm faced by her personally; it was a risk faced by the population generally.
The Tribunal finds however that the other incidents that the applicant described, and claims she fears in the reasonably foreseeable future should she return to Fiji, considered cumulatively, and especially considering the sexual assault incident, do amount to serious harm for the purposes of the refugee criterion and significant harm for the purposes of the complementary protection criterion.
Real chance of persecution for the purposes of the refugee criterion.
For the purposes of determining whether the applicant has a well founded fear of persecution under section 5J of the Act however the Tribunal must determine whether there is a real chance that she would be persecuted for reason of her race, religion, nationality, membership of a particular social group or her political opinion and that the real chance of persecution relates to all areas of the receiving country, in this case Fiji.

The Tribunal accepts that there is a real chance that the applicant will have similar experiences/difficulties for the reasons that she claims if she returns to live in her local area in Fiji. All of the incidents of harm and harassment that the applicant has described and claimed occurred in her home/home area and in her local area; the applicant told the Tribunal that although she did not know the persons involved they were local men, describing them on occasions as native Fijians. The applicant has not claimed to have experienced any difficulties in [City 1], for example, when she was working there over at least the last four years before she came to Australia. Also she told the Tribunal that despite her difficulties locally she embarked on her studies part time at university in [City 1] while she was also working in [City 1]. Further the applicant told the Tribunal, and it accepts as true, that the incidents about which she complains all happened after the death of her father, with whom she lived in [Address 1], in September 2013. In her statutory declaration declared [in] May 2015 she states that her father was known as a fearless man so she felt secure with him; the Tribunal accepts that this is true. The Tribunal accepts that when her father died local men became aware of his death. The Tribunal accepts and finds that the applicant came to the attention of local men because the death of her father left her in [Address 1] where she had previously lived with him, without her father as a male head.
While the Tribunal accepts that country information indicates that there is a high rate of domestic violence and other violence against women throughout Fiji the Tribunal finds that if the applicant moved out of her local area where she has come to the attention of local men in her community because of her father’s death and if she lives with a family member, for example in [City 2] or in [Town 1] where she has a family member living according to her evidence to the Tribunal, or if she lives in a share, group or settlement accommodation with others, the chance of the applicant facing the harm she fears in Fiji in the reasonably foreseeable future for the reasons she claims, including because she is a woman/Indo Fijian woman living alone/without male protection, does not amount to a real chance.
The Tribunal does not accept that there is a real chance that the applicant will experience the harm she fears for the reasons that she claims if she returns to Fiji and moves to live outside of her local area and lives in a household with a family member eg in [City 2] or [Town 1] or in a share, group or settlement accommodation with others, including other Indo Fijians. This option was raised with the applicant by the delegate and the Tribunal. In the Tribunal’s view if the applicant took these steps she would avoid a real chance of the harm she fears because she would come within the protection of the family unit or the group/settlement members with whom she shares her accommodation.
In the Tribunal’s view, for the reasons given below, these would be reasonable steps for the applicant to take to modify her behaviour to avoid a real chance of persecution for the purposes of subsection 5J(3) of the Act. In the Tribunal’s view such a modification of her behaviour does not fall within paragraphs 5J(3)(a) to (c) of the Act. The applicant told the Tribunal that she has always been able to find work in her country and has always been employed. She told the Tribunal that she had worked as [occupation] in [City 1] for 4 years before coming to Australia and she sent her resignation to that employer two weeks after coming to Australia. In addition to her work experience she told the Tribunal that in Fiji she did a short course part time in [area of study] in the university in [City 1] for three months which ended in July 2014; her application for visa indicates that she did that course at the [City 1] campus of [University 1]. She said that unless you work as a [volunteer] you cannot get a job in [her field] in Fiji but she told the Tribunal that she did not look for work in [her field] in Fiji although she did do some work for one person during her course. The Tribunal considers that the applicant’s experience and background would enable her to find work, as she has always done according to her evidence, if she returns to Fiji and lives outside her local area, eg in [City 2] or [Town 1]. The applicant also told the Tribunal that although she is not close to them she has relatives in places outside of her local area. The applicant told the Tribunal for example that she has a sister who is living with her husband and family in [City 2] and a brother who is married and living with his family in [Town 1]. The Tribunal accepts the applicant’s evidence that she is not close to her siblings in Fiji, that she has no bond with them and does not want to live with them with her son. It accepts as she indicated that they have families of their own. Having regard to all of the applicant’s circumstances however, including the experiences and difficulties she had previously in her local area in Fiji, the Tribunal considers that it would be reasonable for the applicant, with her son, who is now [age] years old according to her evidence to the Tribunal, to seek to move to live with one of her family members in [City 2] or [Town 1] or alternatively to move to share, group or settlement accommodation with others to avoid the harm she fears if she were to continue to live alone with her son in Fiji. Although the Tribunal accepts the applicant’s evidence that her son become aware to some extent that something happened to her in her local area in Fiji the Tribunal does not consider that it would be unreasonable for the applicant to move with him outside the area where those events took place to live in other accommodation in Fiji. Further, although the applicant told the delegate that her family members will not help her to move to alternate accommodation, the Tribunal considers that as the applicant was able to travel and relocate to Australia and bring her son here she herself will be able to arrange this alternate accommodation outside of her local area in Fiji to avoid the harm she fears there.
Hence for the reasons given above the Tribunal finds that the applicant does not have a well founded fear of persecution in her country, for the reasons that she claims, for the purposes of the refugee criterion.
Real risk of significant harm for the purpose of the complementary protection criterion.
For the reasons referred to above the Tribunal accepts that there is a real risk that the applicant will have similar experiences/difficulties for the reasons that she claims if she returns to live in her local area in Fiji.
Under subparagraph 36(2B)(a) of the Act 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 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.
As noted above the Tribunal accepts that country information indicates that there is a high rate of domestic violence and other violence against women throughout Fiji. The Tribunal finds however that there will not be a real risk that this applicant will suffer significant harm in Fiji for the reasons that she claims if she relocates and moves to live outside of her local area and lives with a family member, for example in [City 2] or [Town 1] or in share, group or settlement accommodation with others. Further in the Tribunal’s view and for the reasons given above at paragraph 66 (in relation to reasonable steps for the purposes of subsection 5J(3) of the Act) it would be reasonable for this applicant with her son to move to another area of her country outside her local area, eg to [City 2] or [Town 1] and for her to seek to live with a family member, for example in [City 2] or [Town 1] or in share, group or settlement accommodation with others. As noted above in this way on return to Fiji she would avoid the harm she faced/faces in her local area and she would come within the protection of the family unit or the group/settlement members with whom she shares her accommodation outside her local area.
For the reasons given above the Tribunal finds that for the purposes of the complementary protection criterion there is no real risk that this applicant will suffer significant harm in Fiji if she returns there.
CONCLUSION
For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. The applicants do not satisfy the criterion set out in paragraphs 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c), and cannot be granted the visa.
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.

Ms Christine Long
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

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.
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.
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.
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.
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.
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

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.
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.
…

[2017] AATA 2995

4 December 2017

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction