1620577 (Refugee)

1620577 (Refugee) [2020] AATA 6037 (28 September 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:1620577

COUNTRY OF REFERENCE: Fiji
MEMBER:David McCulloch
DATE:28 September 2020
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 28 September 2020 at 9:31am
CATCHWORDS
REFUGEE – protection visa – Fiji – particular social group – separated woman – extra-marital affair – single mother – domestic violence – rejection by family – accommodation – employment – effective protection – credibility issues – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H, 5J, 36, 65, 423A
Migration Regulations 1994 (Cth), r 1.12; Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
MIEA v Guo & Anor (1997) 191 CLR 559
Luu & Anor v Renevier (1989) 91 ALR 39
Prasad v MIEA (1985) 6 FCR 155 at 169–70
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288
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 and Border Protection on 7 November 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants, who claim to be citizens of Fiji, applied for the visas on 12 July 2016. The delegate refused to grant the visas.
The first named applicant (‘the applicant’) appeared before the Tribunal on 25 August 2020.
The Tribunal exercised its discretion to hold the hearing by video using Microsoft Teams. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by this computer/device video application, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The Tribunal was assisted by the use of an interpreter in the Fijian and English languages. The applicant was represented in relation to the review by her registered migration agent, who attended the hearing.
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 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).
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.
Subsections 36(2)(b) and (c) provide, as an alternative criterion, that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a protection visa. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include spouse and dependent children.
The Tribunal is satisfied on the evidence that the second named applicant (‘child applicant’) is a dependent child of the applicant and therefore is a member of the same family unit as the applicant.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it the DFAT Country Information Report – Fiji, 27 September 2017.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant arrived in Australia as the holder of [a temporary] visa [in] November 2014. The applicant was granted a further [temporary] visa on 5 February 2015, and again on 3 June 2015. The applicant was refused a further [temporary] visa on 28 April 2016 and became an unlawful non-citizen [in] June 2016. The applicant applied for the protection visa on 11 July 2016.
The following information is apparent from the application forms. The applicant was born on [date] in [a named town in] Fiji. The applicant is a Methodist Christian of Fijian ethnicity, who speaks, reads and writes Fijian. The applicant began a relationship on 27 November 2013 and is currently separated. The applicant’s mother and brother reside in Fiji and the applicant is in contact with her mother twice a week via phone calls. The applicant attended primary and secondary school from January [year], and graduated from [a named school], Fiji in [year]. The applicant completed a [degree] from [a named institution] [between specified years].
The child applicant was born on [date] in [NSW].
The applicant claims that she left Fiji to live with her husband in Australia. The applicant claims that her family will not accept her back, and she would be homeless and helpless. The applicant cannot live in another part of Fiji, as no one will accept her, and there is no life in Fiji and people are leaving for Australia due to political instability. The applicant claims that her family will harm and mistreat her as they will not accept her back, and people from the community will not accept the applicant. The applicant claims that there is neither protection nor employment in Fiji.
The applicant provided a copy of her passport and a Fijian marriage certificate showing that she and [Mr A] married [in] December 2013.
The Tribunal notes the following evidence given by the applicant in the interview with the delegate of the Minister which took place on 21 October 2016.
The applicant indicates that her address in Fiji is [a named] village and that her mother still lives in this village. The applicant’s brother, [and specified relatives] live in another area close by.
The applicant indicated that she got married in Fiji [in] December 2013 to an Australian citizen. The applicant indicated that it was an arranged marriage and they did not know each other well. The applicant came to Australia on a [temporary] visa rather than a visa based on her relationship because that was the decision of her husband.
The applicant indicated that her husband did not like it when she got pregnant. At seven months of pregnancy the applicant’s husband told the applicant that he did not like it and she would have to leave. The applicant then went to stay with a church friend and subsequently gave birth to a child. The applicant gave the child the name of her friend’s dad.
The applicant indicated that she has not divorced her husband but is going to.
The applicant indicates that she cannot return to Fiji because, as she has married, her family in Fiji will no longer accept her. As a married girl she will not be accepted by the family. The applicant indicates that there is no one that she fears in Fiji just that her family and the community will not accept the applicant. She will be homeless and helpless.
The delegate asked the applicant why her mother will leave her homeless. The applicant indicates that it is Fijian tradition that you have to stay with your husband and there is a view that the applicant should have fought for her husband. The applicant indicates that her mother will not support held her.
The applicant indicated that she has told her mother about her son and that her mother is happy about this. The applicant indicates that she last spoke to her mother the previous month.
The delegate points out that there are shelters and support services for single mothers in Fiji. The applicant indicates that this is not correct. The delegate indicates that independent information indicates to the contrary. The applicant indicates that she was not aware of that.
The applicant indicates that she did not finish her studies in Fiji. The applicant indicates that she can’t work because you need study to work and that she did not finish her studies in Fiji.
The applicant provided the following additional statement to the Tribunal in advance of the hearing (not corrected for spelling or grammar):
I provide following statement in support of my application for a protection visa. When I applied for a protection at the departmental stage, I never had legal representative and could not provide sufficient information regarding my issues. I request the Tribunal to consider my particular circumstances as a vulnerable female and on the basis of my gender.
I was born [date] in Fiji. I have a brother. My father passed away. My mother and brother live in Fiji.
After I finished my degree course, [specified degree] at [a named institution], I worked as [an Occupation 1] in a [specified workplace] for a year. During the period, my family arranged my marriage. Fijian society is based on value system where women are expected to obey the elders. Though there is a significant age difference between, I could not oppose to the marriage. I married to [Mr A] (DOB : [date]) [in] December 2013. He is an Australian citizen. Due to the age difference, we continue to have issues and he used to have suspicion on me and used to yell at me. However, I tolerated everything because divorcing a person is considered as taboo in Fiji.
In 2014, he invited me to come to Australia and I came to Australia [in] November 2014 and started living with him. Though, as a spouse I expected him to sponsor me for a partner visa, he kept on delaying it and started threatening and abusing me. I suffered significant abuse from him mentally and physically. He sexually abused me which caused significant trauma which I continue to carry. He basically treated me as his slave and we continue to have arguments with each other. One of my uncles who live in Australia tried hard to counsel him. However, he continued to show his brutal face to me.
During that time, some of my relatives used to come and live at the home and I used to go to our Church (Methodist) for religious activities. He suspected that I used to go there to see another man and mentally and physically torture me. I could not report to the police due to social stigma.
Due to his abusive nature and attitude, I was longing for love and affection during that time and met [Mr B] and we developed relationship and I became pregnant. After that, my husband left me and moved to [anther state]. Prior to that, he warned that he would take revenge whenever I returned to Fiji. During that time, I did not know what to do and my son was born on [date]. I was scared to go back to Fiji because my husband has his extended relatives and friends in Fiji who are angry on me for engaging in extra-marital relationship.
After the birth of the child, I discussed with my uncle and relatives and applied for a protection visa.
Recently, I got another child from the relationship with [Mr B] who is not an Australian citizen or permanent resident. He does not want to take the responsibility as well.
I fear if I returned to Fiji now or in a foreseeable future, I will face a real risk of harm due to following reasons from my husband (separated) and his family and his friends:
a.     As a separated Fijian woman.
b.     Fear that my husband (separated) and his family and friends will take revenge against me.
c.     I would be considered as a characterless woman by the Fijian society due to my extra-marital affairs.
d.     I would be considered as a woman who has given birth to children out of wedlock.
I fear I would face significant social ostracism and religious ostracism. I fear I will face sexual harassment and assault due to my situation as a separated women.
I fear I can not get effective protection in Fiji because the Fijian authorities are male dominated and in addition, the Police or authorities may take sexual advantage on me due to my situation a separate woman.
I fear even if I move to other areas I will continue to face harm from my husband (Separated) family and friends because they have connections with the Police. In addition, I would face practical difficulties to move to other areas of the country and therefore, moving to other areas is not reasonable in my case due to following reasons:
a.I have small children.
b.Due to my gender, I will face sexual assault and harassment.
c.Due to my mental health issues I experienced as a result of sexual violence.
In relation to my son [name], I fear he would be considered as a child born out of wed-lock and therefore he would face significant bulling and severe discrimination in Fiji.
Accordingly, I request the Tribunal to remit my case to the Department recognising us as refugees
Independent information
The DFAT Country Information Report – Fiji, 27 September 2017, provides the following information regarding women in Fiji:
The 2013 Constitution and legislation protect women’s rights to equality and freedom. For example, the Employment Relations Promulgation 2007 prohibits discrimination on the basis of sex, pregnancy, and family responsibilities. There is little official discrimination against women in law and official policy.
The Family Law Act 2003 and a range of recently enacted decrees including the Domestic Violence Decree 2009, Criminal Procedure Decree 2009, Crimes Decree 2009, and Family Law (Amendment) Decree 2012 provide legislative protection against violence. These decrees have improved the legislative framework for preventing and responding to violence against women, including by expanding authority for police to undertake investigations; providing for Domestic Violence Restraining Orders; expanding the definition of rape (including spousal rape); and increasing penalties for trafficking in women or children.
In practice, however, Fiji continues to have very high levels of physical and sexual violence against women, even when compared to high regional averages. The Fiji Police Force has ostensibly had a ‘no-drop’ policy for domestic violence cases since 1995, meaning that cases cannot be dropped by police or withdrawn by the victim and must be investigated. Nonetheless, few cases reach the courts, and those that do are frequently dismissed or light sentences handed down. Due to societal norms, only around a quarter of victims seek official protection. Several shelters are available in Fiji, as well as counselling services. Several women’s rights NGOs are active in policy formation and service provision, particularly in the area of violence against women.
In September 2016, the Ministry of Women and the Fiji Women’s Crisis Centre (FWCC) launched a national 24-hour toll-free hotline. The FWCC has operated a hotline previously; however, victims were required to pay for the calls. During the toll-free line’s first week of operation, over 100 calls were received from women. The FWCC has emphasised that a host of support services will need to be mobilised and prepared for referrals.
In practice, police protection is reportedly inadequate to protect women at risk of violence. Families sometimes turn to traditional and religious reconciliation practices in both indigenous and Indo-Fijian communities to mitigate sentences in domestic violence cases. Women who are victims of domestic or sexual violence rarely report the incident due to distrust in authorities’ ability to support them, and for fear of shaming their families or village. Lesbians face additional challenges (see Sexual Orientation and Gender Identity).
Overall, DFAT assesses women are at a low risk of official discrimination and a moderate risk of societal discrimination. DFAT assesses that women are at a high risk of domestic violence, at the hands of a spouse or intimate partner, with the situation being worse in rural areas and even worse in the outer islands. Credible sources reported that women often feel pressured to accept village compensation and remain in the abusive relationship.[1]
[1] DFAT, Country Information Report – Fiji, 27 September 2017, p.21, paras [3.69]–[3.74].
Fiji maintains a social assistance system applying to all Fijian citizens, which includes several cash transfer welfare schemes and indirect support schemes, such as bus services for persons with disabilities, and the Fijian government also runs five affordable housing schemes for people unable to afford housing.[2] This includes a Poverty Benefit Scheme providing welfare and access to funeral expenses, personal insurance and fire insurance paid by the government.[3] It is noted that, in 2018, it was reported that some 4,200 single parents (including both single mothers and fathers) received support from the scheme.[4] An officer from the government-run Housing Assistance & Relief Trust was quoted in 2016 stating that there are mostly single mothers in the homes, most of whom are still struggling.[5] There are also NGOs, such as Homes of Hope which is funded by various international aid and charity organisations, which assists young women and their children,[6] and offers training programmes and financial assistance to single mothers.[7] The Fijian government also reported that it provides grants to women’s institutions that provide skills and entrepreneurial training for women in prostitution, including single mothers and deserted spouses.[8]
[2] See UNIFCEF Pacific and Fiji Ministry of Women, Children and Poverty Alleviation; Child-Sensitive Social Protection in Fiji: Assessment of the Care and Protection Allowance (February 2015), pp.50, 131–132, 140–141, 147.
[3] Jennis Naidu, ‘Protecting our social welfare benefit recipients’, Fiji Sun, 16 February 2020, (accessed 3 March 2020).
[4] Losirene Lacinavalu, ‘Minister defends Ministry, clears air on welfare benefit scheme, budget allocation’, Fiji Sun, 7 March 2018, (accessed 3 March 2020).
[5] Katherine Krishna, ‘West HART helps women display their creativity’, Fiji Sun, 9 July 2016, (accessed 3 March 2020).
[6] Lusiana Tuimaisala, ‘Homes of Hope honours corporate organisations that do special work’, Fiji Sun, 20 January 2018, (accessed 3 March 2020).
[7] United Nations Population Fund 2008, An Assessment of the State of Violence Against Women in Fiji, 01 January, pp. 33-34. (accessed 3 March 2020).
[8] List of issues and questions in relation to the fifth periodic report of Fiji. Addendum. Replies of Fiji’ (CEDAW/C/FJI/Q/5/Add.1), [Government of Fiji], [United Nations.] Committee on the Elimination of Discrimination against Women (CEDAW), 10 January 2018, p.12 paragraph 57, (accessed 3 March 2020).

The applicant’s representative provided written submissions to the Tribunal prior to the hearing. The submissions state that the applicant fears harm in Fiji due to her membership of the particular social group of Fijian women. It is submitted that there are ongoing human rights issues and political instability in Fiji, and that there is no option of relocation or effective protection.
The submissions refer to the US State Department’s 2019 and 2020 Country Report on Human Rights Practices – Fiji and the 2017 DFAT Country Information Report – Fiji, as well as several news articles. Reference is made to pervasive domestic violence across Pacific countries, and it is stated that the main forms of violence experienced by Fijian women are physical, sexual, and emotional abuse by their partners. The submission notes that, according to the Fiji Women’s Crisis Centre, 80% of women have experienced violence in their homes. Reference is made to rates of sexual harassment. Reference is made to the DFAT Report assessing that women are at a high risk of domestic violence. The submission refers to the US Country Reports. Mention is made of an instance of incest and rape of a 12-year-old and a lack of charges in the case. Reference is made to traditional practices encouraging reconciliation and mitigating sentences for domestic violence. Mention is made of reports of the police dropping cases of rape despite a policy of continuing investigation, and of courts dismissing cases of domestic abuse or providing light sentences.
The submission refers to Freedom House’s 2020 report on Fiji, noting that domestic violence remains a problem in Fiji. Reference is made to a 2020 FBC news report stating that two out of three women in Fiji are subjected to physical or sexual violence in their lifetime. Another report is referred to, in which it is stated that ten women died in 2019 from domestic violence and that the prevalence of violence against women in Fiji was amongst the highest in the world. Mention is made of the number of domestic violence cases increasing significantly over February to May 2020.
The submission concludes by saying that violence against women is a real problem in Fiji, that there has been a surge of violence against women, and that DFAT confirms that women are at high risk of violence. It is submitted that the applicant’s membership of a particular social group of Fijian women is an essential and significant reason for the persecution feared in Fiji.
Hearing, credibility, findings, and assessment
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169–70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
In considering overall the credibility of the applicant the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicants are citizens of Fiji and accordingly their claims will be assessed against Fiji.
In the Tribunal hearing the applicant described the circumstances surrounding the paternity of the child applicant differently than had been characterised in the original claims for protection and in the interview with the delegate of the Minister. The impression from those claims is that the father of the child applicant is the applicant’s husband, albeit that it is claimed that her husband objected to the pregnancy.
In fact, as suggested in the subsequent written statement, and indicated in the hearing by the applicant that, in Australia, while still living with her husband she met another man, [Mr B] with whom she formed a relationship. It is this person who is the father of the child applicant. The applicant indicated that she stopped living with her husband in March 2016 and moved in with a church friend. The applicant gave birth to the child applicant on [date]. The applicant indicated that after a couple of months of living with this church friend she moved in with [Mr B] with whom she is still living. The applicant indicated that [Mr B] is a Fijian citizen who has made his own claims for protection, and is currently on a bridging visa with work rights. The applicant indicated that [Mr B] supports the family unit. The applicant and [Mr B] have had another child together who was born on [date]. Although the applicant has not taken steps to seek a divorce from her husband because of financial constraints, she does intend to do this and to eventually marry [Mr B].
As put to the applicant in the hearing, she appeared to have not previously been candid as to the paternity of the child applicant and the history of her relationship with [Mr B]. This is exemplified by the fact that in the interview the applicant indicated that she gave the child applicant the name of her friend’s father. In fact, as is clear from the birth certificate of the child applicant and the applicant’s evidence in the hearing, the child applicant was given the surname of his father.
In response, the applicant said that her church friend with whom she lived for a period and the father of the child applicant were related.
The does not explain why, in the Tribunal’s view, the applicant would not have told the delegate in the interview that the child was named after its father, rather than indicating that it was named after the father of the church friend with whom she was living. This indicates a lack of candidness on the part of the applicant.
The Tribunal only draws limited adverse inference from the applicant’s lack of candidness in this respect given that it could well have been the result of embarrassment or shame in relation to her new relationship and the paternity of the child applicant. A claim to this effect was made by the applicant in the statement she provided to the Tribunal following the hearing.
Very relevant is the applicant’s evidence as to her currently being in a relatively stable relationship and having the support of her partner who she intends to eventually marry. This was the applicant’s clear evidence in the Tribunal hearing. This is in contrast to the applicant’s written claim provided to the Tribunal in advance of the hearing indicating that [Mr B] ‘does not want to take responsibility as well.’
In response to this issue in the hearing, the applicant indicated that this was referring to the fact that [Mr B] did not provide details of his paternity for the purpose of the child applicant’s birth certificate. The Tribunal noted to the applicant that this was a relatively minor issue as compared with her evidence that [Mr B] remained with and supported the applicant and the children and that the applicant eventually intended to marry [Mr B].
The fact of the applicant being in a relationship that she continues to hold with a Fijian citizen, who is the father of her two children, means that, although the applicant would return to Fiji as a woman who is separated from her husband, she would likely have the protection and support of her current partner. She would not likely be a single mother in Fiji.
In terms of the visa status of [Mr B] in Australia, the applicant indicated in the hearing that [Mr B] had made his own protection visa application. The Tribunal asked the applicant the basis on which her partner was seeking protection. The applicant indicated that she did not know. The Tribunal expressed incredulity at this given their relationship. The applicant indicated that she had asked her partner but he had not provided details.
The Tribunal has difficulty accepting that the applicant would not be aware as to the basis on which her reasonably long-term partner and the father of her two children had a genuine claim that he would face a real chance of serious or significant harm on return to Fiji. The fact of the applicant claiming no knowledge of this creates underlying concerns that protection visa options are being used opportunistically to extend the stay in Australia rather than reflecting genuine claims for protection. This is not determinative in adverse credibility findings but it does buttress more significant concerns.
The Tribunal invited the applicant’s representative to provide details of the basis on which [Mr B] is seeking protection in the written submission that was to be provided following the Tribunal hearing.
In the written response provided following the hearing, the applicant indicated that her partner made his application for the protection visa on 10 August 2010 but he has misplaced relevant documents. The Department has refused his application and he did not appeal or go to the courts. The applicant does not disclose, as requested by the Tribunal, the basis on which her partner fears returning to Fiji.
The Tribunal maintains its lack of belief that the applicant would not be aware of genuine reasons why her partner fears returning to Fiji. This underscores credibility in relation to the applicant.
The Tribunal put to the applicant in the hearing that it seemed most likely that if she returned to Fiji she would do so with her current partner, [Mr B]. This would occur if his protection visa application were unsuccessful. If it were successful, then it would seem that options would be pursued to enable the applicant to remain in Australia on the basis of the partnership.
In response, the applicant indicated that there could still be residual adverse attitudes towards her and her children in Fiji based on her marriage failing and her having an extramarital affair resulting in the birth of two children.
The Tribunal put to the applicant that whilst it might accept some degree of social disapproval in Fiji in terms of the circumstances of the applicant, it did not accept that the independent evidence before the Tribunal, including based on the DFAT report or the independent evidence provided on behalf of the applicant, would support the proposition that there would be such a level of societal mistreatment and discrimination levelled against the applicants based on the marriage, its breakup, and the applicant having the child applicant with another father, that it would lead to a real chance of either applicant suffering serious or significant harm.
The applicant maintained there would be adverse treatment.
In the written statement provided by the applicant following the hearing, she changed her evidence to indicate that although from her perspective her partner would return with her to Fiji, the reality is that he may not. This is exemplified by him not including his name on the birth certificates of his children. It is claimed that [Mr B] fears that he will be harmed by the applicant’s former family’s relatives as a reason for not returning.
The Tribunal is not satisfied that this is true. If it were, the Tribunal considers that the applicant would have indicated in the Tribunal hearing reservations as to her partner returning with her to Fiji. The Tribunal considers that if the applicant returns to Fiji she will do so in all likelihood with her partner for protection and support.
There is a further inconsistency in evidence of the applicant having no support from her family in Fiji. This is indicated in the original written claims and in the interview with the delegate. In contrast, in the Tribunal hearing, the applicant indicated that she has a good relationship with her mother and brother in Fiji with whom she communicates regularly by telephone. In response to this inconsistency being put to the applicant in the hearing, she responded that she had separated from her husband and this will not be accepted in the community and the church. The Tribunal indicated that this did not indicate that she had no family support. In response, the applicant indicated that given that she had got married her mother and brother would not be expecting her return to Fiji or support the family.
In the written statement provided by the applicant following the hearing, she indicates that she has only communicated with her family during the previous 12 months and that they previously did not talk to her. This is inconsistent with the indication in the protection visa application form that the applicant talks to her mother on the phone twice weekly. In the written statement, the applicant indicates that although her family currently talk to her, they would not accept her into the family upon return as it would affect their reputation within the community. The applicant’s mother sees the applicant as a characterless person.
The applicant has been inconsistent on more than one occasion as to whether she is in contact with her family and has a positive or negative relationship with them. This creates credibility concerns for the Tribunal in relation to the applicant’s claim that she has been rejected by her family.
Whilst the Tribunal accepts there may be some degree of disappointment on the part of the applicant’s mother and brother that the marriage did not last, and a degree of concern socially that the applicant has met another man with whom she has had two children, it is clear from the applicant in the hearing that she has a good relationship with her mother and brother. The applicant also gave evidence in the interview with the delegate that her mother is happy that she has a son.
The Tribunal is not satisfied on the evidence that the applicant would be abandoned or not supported by her mother and her brother. In any event, the Tribunal considers that if the applicant returns to Fiji she will likely do so with her current partner who will provide her with a degree of protection and support.
A significant credibility issue for the Tribunal is the inconsistency in the applicant’s claims that she faces harm from extended relatives of her husband in Fiji who will harm her if she returns to Fiji.
The applicant indicated in the hearing that threats to this effect were made by her husband after she got pregnant to another man, and before she left her husband in March 2016.
The Tribunal noted to the applicant that these were not claims that were made in the original application for the protection visa or in the interview with the delegate which took place in October 2016. Indeed, in the interview with the delegate the applicant indicated that there is no one that she fears in Fiji just that her family and the community will not accept the applicant.
The Tribunal put to the applicant that this evidence was inconsistent with more recent claims that she faces harm from her husband’s extended family in Fiji. In response, the applicant indicated that she can’t recall everything that was said or written but maintained that there were threats.
In the recent written statement provided to the Tribunal the applicant has indicated that she did not have legal representation at this point in the proceedings and could not provide sufficient information regarding her issues.
The Tribunal does not consider that if the applicant had been threatened by her husband with harm that this would be a nuanced or marginal issue needing legal assistance in order to make such claims. It would have been the key piece of factual information to have put before the Department. The Tribunal does not consider that the applicant has provided a reasonable explanation as to why this claim was not raised. Pursuant to s.423A of the Act, the Tribunal draws an adverse inference unfavourable to the credibility of the applicant, most particularly relating to the claim that she faces harm in Fiji from her husband’s extended relatives because of the marriage ending and the applicant having an extra marital relationship which has borne children.
This credibility concern, together with the cumulative impact of the other credibility concerns identified, result in the Tribunal considering that the applicant has not been truthful in aspects of her claims. Most particularly, the Tribunal is not satisfied that the applicant has been threatened or faces harm from the extended family of her husband.
The cumulative impact of the credibility concerns result in the Tribunal having doubts that the applicant genuinely believes that she or the child applicant will face a real chance of harm in Fiji based on the ending of the marriage, the extramarital affair and the birth of the child applicant, of a level that constitute serious harm or constitute significant harm for the purpose of protection criteria.
In any event, as indicated above, whilst the Tribunal accepts that there may be some degree of social stigma towards both applicants based on their circumstances; the ending of the marriage and the birth of the child applicant, the Tribunal is not satisfied that such negative treatment would amount to a level of serious harm or fall within the definition of significant harm. In making this finding the Tribunal considers that the applicant would likely have the support of her partner [Mr B] in Fiji and the support of her mother and brother.
The independent information does indicate that there is not insignificant mistreatment of women in Fiji, particularly in terms of domestic violence. There is no suggestion that the applicant faces a domestic violence threat from [Mr B]. The applicant will likely have the support and protection of [Mr B]. The Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm in Fiji based on the fact of being a woman or based on the relationship.
The cumulative impact of the credibility concerns identified, combined with the lack of any medical evidence provided, result in the Tribunal not being satisfied that the applicant has significant mental health problems caused by sexual violence that would result in her facing a real chance of serious or significant harm on return to Fiji.
In light of these factual findings, the Tribunal is not satisfied that the applicants face a real chance of serious or significant harm for any of the reasons claimed.
In summary, the Tribunal is not satisfied that the applicants have a well-founded fear of persecution for a reason set out in s.5J(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Fiji, there is a real risk of them facing significant harm.
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. Therefore the applicants do not satisfy the criterion set out in s.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.
David McCulloch
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.
…
5H   Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)    in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)   in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:    For the meaning of well-founded fear of persecution, see section 5J.
…
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 the 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.
…
36    Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)   a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)    a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(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.
…

[2020] AATA 6037

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