1707562 (Refugee)

1707562 (Refugee) [2018] AATA 1881 (9 April 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1707562
COUNTRY OF REFERENCE:                  Fiji
MEMBER:David McCulloch
DATE:9 April 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Statement made on 09 April 2018 at 10:05am

CATCHWORDS
Refugee – Protection Visa – Federal Circuit Court remittal – Fiji – Race – Indo Fijian – Particular social group – Single woman living alone – Widow – Frequent adverse interactions with indigenous Fijians – Frequent conduct amounting to systemic conduct – Conduct partially motivated for Convention reasons – Convention reasons essential and significant reasons for harm – Lack of effective state protection – Relocation not reasonable
LEGISLATION
Migration Act 1958, ss 36, 91R, 91S, 425, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v MZYYL (2012) 207 FCR 211
MIEA v Guo & Anor (1997) 191 CLR 559
Yao-Jing Li v MIMA (1997) 74 FCR 275
Prasad v MIEA (1985) 6 FCR 155
Luu & Anor v Renevier (1989) 91 ALR 39
Randhawa v MILGEA (1994) 52 FCR 437
Abebe v Commonwealth of Australia (1999) 197 CLR 510
MIMA v Respondents S152/2003 (2004) 222 CLR 1
SZATV v MIAC (2007) 233 CLR 18
SZFDV v MIAC (2007) 233 CLR 51
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 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Fiji, applied for the visa on 22 May 2012 and the delegate refused to grant the visa on 6 September 2012.
This matter has previously been determined by the Tribunal on three occasions. On each occasion, the matter has been remitted to the Tribunal by the Federal Circuit Court to be re-determined according to law. Further details of those prior decisions and the basis of the remittals are outlined below.
In relation to the current reconsideration of the review, the applicant appeared before the Tribunal on 7 November 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi (Fiji) and English languages.
The applicant was represented in relation to the review by her registered migration agent, who attended the hearing.
CONSIDERATION OF CLAIMS AND EVIDENCE
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, the applicant 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.
Paragraph 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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
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 a protection 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 the applicant 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’).
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration and Border Protection –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it DFAT Country Report – 27 September 2017.
The issue in this case is the credibility of the applicant and whether the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background, claims and submission
The third Tribunal decision dated 30 October 2016 (‘third Tribunal decision’) summarises the claims and submissions of the applicant over the course of the proceedings to that point as follows:
The materials before the Tribunal included the following documents summarised below. The Tribunal has considered all of this material in reaching its decision.
First, the application dated 22 May 2012 the relevant questions and answers appearing in this application are as follows:
Why did you leave [Fiji]?
My life was in danger from native Fijians.
Have you experienced harm in that country?
[Yes]. Please refer to my statutory declaration.
What do you view may happen to you if you go back to that country?
I will be subject to similar harm.
Who do you think may harm/mistreat you if you go back?
Native Fijians, especially young Fijian boys who criminally minded. Also young native Fijians who dislike Indians because of their race.
Why do you think this will happen to you if you go back?
Because I am an easy target being an Indian woman living alone without a male person to protect me. It is because of my race, in that they are more likely to target an Indian woman living alone rather than a Fijian woman living alone.
Do you think the authorities of that country can and will protect you if you go back?
[No] they will not because of the long history of racism in Fiji. In the past police has been involved in racist violence, for example in 2000. When there is a conflict between Fijians and Indians police tend to support the Fijians.
Secondly, the statutory declaration referred to in the application. This statutory declaration is dated 16 May 2012, and is signed by [the applicant]. In summary, the applicant states that she left Fiji because she could not live there safely after her husband died in October 2011. She says sometimes at night Fijian people were knocking at her door and throwing stones at her windows. About two months after her husband died, there was a break in. She says the thieves took all the valuable and important things in her house. She suspects the thieves were neighbourhood Fijian boys. She said that the police come and checked the house, but after this initial inspection, never got back to her.
The applicant said that the problem became worse with the boys continuing to throw rocks and stones at her house. She says that, on one occasion, they put a dead rat outside her house, and on another occasion set fire to her clothes on the clothesline. On another occasion a drunk Fijian boy shouted at her and made remarks such as Fiji was not a country for her. On a further occasion, [in] December 2011, six Fijian boys gathered near her place and were drinking, and shouting racist abuse. [In] February 2012, two people came into the house. She was assaulted and verbally abused. As a result of that incident, she left Fiji within 48 hours.
Thirdly, pre-hearing submissions dated 4 July 2016. These submissions largely repeat the material that was contained in the applicant’s statutory declaration and application. The submissions responded to criticisms made by the delegate about why the applicant failed to refer to a home invasion incident which occurred in 2000 in her 2012 protection visa application. The submissions also amplified evidence she had given about fainting episodes. Finally, the submissions state the following under the heading “Country Information since September 2014 Election”:
The outside world would like to believe that everything is normal in Fiji. There have been some improvements but the applicant’s safety has not improved to an extent that her fear is not well-founded.
Her situation has not changed. If she is forced to go back she will still be alone without any male support. She does not speak Fijian. She can’t live with her brother’s families. They will not accept the applicant to live with them. So no one could tell her that “you go and live with them”.
She can’t get much support from her daughter because a relationship with her son in law is hostile, they would not accept her to live with them.
Even living with any one of them is not going to make any difference because at night she will be on her own that is when she is most vulnerable.
Fijian society has been affected by races and for several decades and things don’t change overnight.
The attitude of the police and army will take many more years if not decades to change.
[If] she is forced to go back she will experience same problems that she faced in 2011 and 2012 and she will not get much protection from the police.
Fijian society is experiencing high rate of crime and vulnerable people such as the applicant will be targeted. Further there was a high rate of sexual crimes in the applicant having to live alone would be quite vulnerable because of her special attributes.
Fourthly, at the hearing the applicant provided to the Tribunal a number of articles relating to the position of Indians in Fiji including: Village Headman wants Narayan to apologise (11 July 2012); Fiji police chief calls Indian officers backstab is and lies in latest racist rant 18 February 2009; Fiji Police Commissioner’s Comments Deemed Racist (4 March 2013).
Fifthly, the Tribunal notes that by facsimile on 28 September 2012, the applicant’s agent sent to the Tribunal a copy of the delegate’s decision of 6 September 2012. In summary, that application was rejected by the delegate. The delegate found the applicant’s responses to be credible and broadly consistent with the written claims. The delegate accepted that the applicant had experienced harassment by local indigenous Fijian males because she was a single, Indo-Fijian woman. The delegate accepted the claims of harassment including the youths knocking on her door, the throwing of stones at her house, the leaving of a dead rat at her premises, the setting fire to her washing on the line, verbal abuse and a robbery at her home [in] December 2011, and the home invasion and attack the assault of the applicant [in] February 2012.
However, given that the applicant’s evidence, the delegate considered that even if the protection provided could be described as ineffectual, the State had not deliberately withheld protection from the applicant. The delegate found that the fact that the applicant perceived the police to have been ineffectual previously did not indicate that the harm suffered by her had official endorsement. The delegate noted that she had not sought police protection for the last incident. The delegate considered that effective state protection was available to the applicant in her place of residence in [Town 1], Fiji.
The delegate further considered that the applicant could relocate close to her brothers and sisters and their families in [a particular location], or close to her sister and her family in [another location], or close to her daughter and her family in [a further location].
In summary, the delegate did not consider that there were substantial grounds for believing that there was a real chance that the applicant would be subjected to serious harm if she returned to Fiji. An analogous finding was reached in relation to the complementary protection criterion.
Sixthly, shortly after the hearing, on 26 July 2015, the Tribunal received submissions from the applicant’s agent. These submissions were signed by [the applicant], and prepared by [the applicant’s migration agent]. These submissions address five topics:
·that the applicant’s fear is well-founded under the Refugees’ Convention;
·that the applicant’s fear is well-founded under the complementary protection criterion;
·there are substantial grounds for believing there is a real risk of the applicant of suffering serious harm if the applicant is returned to Fiji;
·Country Information; and
·Ministerial Intervention.
The Tribunal has considered those submissions. It is appropriate to note two matters. In relation to country information, no country information was actually provided. What was provided was a submission which is in virtually identical terms to the submissions of 4 July 2016.
The Tribunal will consider the application for Ministerial Intervention at the conclusion of these reasons.
Seventhly, the Tribunal notes that it also had before, in one of the previous files for [the applicant], country information which had been provided by [the applicant’s migration agent] on 9 March 2015. The Tribunal did not specifically refer to this country information at the hearing, but notes that [the applicant’s migration agent] did tell it that he thought the country information had been provided previously. The information provided on 9 March 2015 included research from the Canadian Immigration and Review Board, Whether Indo Fijian Women Have Been Targeted by Ethnic Fijian Men since May 2002; State Protection Available for Indian Fijian Women, dated 16 January 2001; Ghosts of Ethnic Conflicts past Haunt Fiji Vote 16 September 2014); Ethnic Fijian May Wind Indian Roads in Fiji Election (15 September 2014); What Hindus Need to Know: Fiji Indians – Trapped in the Gulag of the Pacific (undated, but printed on 7 March 2015).
Eighthly, shortly before this, on 2 March 2015 [the applicant’s migration agent] had also provided submissions to the Tribunal. These repeat claims and submissions made elsewhere, it is not necessary to repeat the submissions on these reasons.
Nightly, further submissions of [the applicant’s migration agent] provided to the Tribunal on 13 March 2015. As these submissions respond to observations of the Tribunal in the previous hearing, it is not necessary to rehearse those submissions in these reasons.
The Tribunal considering this remitted application has, too, considered all of this information.
The Tribunal notes, as indicated below, that the applicant has also provided evidence that she and her husband were the subject of a home invasion in 2000 in which the applicant was assaulted, including an assault of a sexual nature.
History of proceedings and basis for remittals
Delegate’s decision
The delegate, in the decision dated 6 September 2012, accepted that the applicant was a credible witness. The delegate accepted that the applicant had experienced harassment by local indigenous Fijian males because she was a single, Indo-Fijian woman. However, in terms of whether the applicant faced persecution, the delegate determined that effective state protection was available to the applicant. The delegate also determined that the applicant would be in a position to relocate to areas in Fiji closer to relatives.
In considering claims under the complementary protection criterion, the delegate referred to the analysis relating to persecution, including the availability of State protection and the ability of the applicant to relocate, in concluding that the complementary protection criterion was not met.
In relation to State protection, the delegate did not correctly assess the concept for the purpose of the complementary protection criterion which is set out in s.36(2B) of the Act. This imposes a higher standard than in relation to the Refugees Convention criterion. Paragraph 36(2B)(b) states that the relevant country must reduce the risk to less than a real risk. It is not sufficient that there is merely an effective police and judicial system which meets international standards.[1]
[1] MIAC v MZYYL (2012) 207 FCR 211 at [36]-[37].
Under the complementary protection criterion, the Tribunal must assess whether there is a real risk of significant harm to the applicant. There may be the potential for such harm if the State is not able to reduce the risk of harm to less than a real risk, even if there is the availability of some level of State protection. This was not appreciated or canvassed in the delegate’s decision.
First Tribunal decision
Review of this decision was sought by the Refugee Review Tribunal which made a decision on 18 March 2013 (‘first Tribunal decision’). The Tribunal found the applicant credible in terms of claims of specific harassment, attacks and robberies, including mistreatment in 2000. However the Tribunal did not accept the applicant’s new claim at the hearing that she would be targeted by a particular group of Fijians in her area because she told the police about them after the 2011 the robbery. This was on the basis of the applicant giving evidence in the hearing that she did not know the people who robbed her. The Tribunal did not accept the applicant’s evidence that she feared retribution from this group in relation to the home invasion in 2012.
The Tribunal was not satisfied that the applicant was targeted on the basis of a Convention reason, particularly on the basis of being a single Indo Fijian woman. The Tribunal determined that the various incidents that she faced were opportunistic crimes. The Tribunal indicated that this was reinforced by independent information which does not indicate that the type of crime that the applicant suffered is directed in any systematic way at the Indo Fijian population for reasons of race, or on the basis of: an Indo Fijian woman living alone; an Indo Fijian living alone without male protection; a woman without a husband; or, a single woman in Fiji without male protection. It was noted that the independent information indicates that the situation for Indo Fijians has greatly improved since the 2006 coup and that race relations were generally harmonious. It was noted that, as 38 per cent of the country’s population is Indo Fijian, if there was systematic persecution of Indo Fijians there would be information as to it occurring.
It was noted that violence and discrimination against women in Fiji is widespread. However, it was indicated there was no evidence to suggest that a distinction is made between female ethnic groups, or that there is a particular targeting of women without male protection or single women living alone without male protection, such as to suggest systematically discriminatory targeting of such a group. The Tribunal did not consider that the country information suggested persecution of all women in the society. It was noted that 70 per cent of sexual assault victims know the perpetrator which is separate to what the applicant is claiming.

In summary, the Tribunal determined that the crime that the applicant suffered was random and opportunistic. It concludes that the applicant was not systematically targeted for the essential and significant reason of the particular social groups claimed. The Tribunal did not accept that, if the applicant returned to Fiji, she would be harmed for the essential and significant reason of belonging to the various social groups claimed.
The Tribunal also determined that the police would be in a position to provide effective protection. It is indicated that there is a system of criminal law in place in Fiji and the police enforce the law. It was noted that 30 per cent of the police force is Indo Fijian and it was unlikely that protection would be withheld from a Fijian woman on the basis of ethnicity. Whilst it was noted that a former Police Commissioner had made racist comments towards Indo Fijians, that information dated back to 2009 and that person was no longer Police Commissioner.
In relation to the complementary protection criterion, the Tribunal found that any harm that would be faced by the applicant on return would be as a result of general crime and was therefore faced by the population of the country generally and not by her personally.
In the applicant’s appeal of this decision, the Federal Circuit Court determined, by judgement [in] November 2014, that there had been errors of law in the Tribunal’s decision. It was determined that the Tribunal failed to consider an integer of the claim expressly made by the applicant. A submission had been made as part of the proceedings that the aggregation of the incidents suffered by the applicant, the time of their occurrence, and the comparison of those elements with others in Fiji, elevated the applicant’s individual circumstances to one where it could be inferred that she was specifically targeted by those from whom she claimed to fear harm. This claim was not properly determined by the Tribunal and was sufficient to identify jurisdictional error.
The Court also determined that the Tribunal did not deal with a matter of importance, and of such seriousness, as required in the proper exercise of its jurisdiction. The Tribunal did not address whether the aggregation of incidents, their number, and the occurrence over a short period of time, said something relevant about the applicant herself which was, in turn relevant to its assessment of the risk of harm.
Second Tribunal decision
The review was reconstituted to a different Member of the Refugee Review Tribunal who reconsidered the matter and, following a hearing, made a decision on 25 August 2015 (‘second Tribunal decision’). The Tribunal had a number of significant credibility concerns with the applicant’s evidence. The Tribunal did not find the applicant a credible witness. The Tribunal accepted that the applicant and her husband were the victims of a home invasion in 2000 but did not accept that the applicant’s dress was pulled off or that she was raped. The Tribunal did not accept any of the claimed incidents following the death of her husband in October 2011.
The Tribunal accepted that the 2000 incident may have been racially motivated. The Tribunal determined that country information established that the Police Force is under effective and impartial leadership and, that as of late 2014, the Police and military are effective and impartial. The Tribunal was not satisfied that the Police in Fiji would not protect the applicant if she returns.
On appeal to the Federal Circuit Court, [in] March 2016, the matter was remitted to the Tribunal to re-determine according to law. This was on the basis that the Minister had conceded that the Tribunal fell into jurisdictional error in circumstances where the delegate and the first Tribunal accepted the applicant as a truthful witness. In this context, the Tribunal did not put the applicant on notice that her credibility was in issue. The opportunity was not provided for a real and meaningful hearing in accordance with s.425 of the Act.
Third Tribunal decision
The review was reconstituted to a different Member of the Tribunal (which had become the Administrative Appeals Tribunal) who reconsidered the matter and made a decision on 30 October 2016 (‘third Tribunal decision’).
The Tribunal found the applicant to be a credible witness who gave evidence consistent with the original claims and the evidence previously given. The Tribunal made the following findings of fact:
·The applicant was born in [a particular year] in Fiji, of Indian-Fijian parents.
·She was one of [a number of] children ([a number of] sons, [a number of] daughters). Her parents were farmers, working on the land. Her parents are now dead. Her siblings, (save for one brother who lives in [Australia]) still live in Fiji.
·She grew up in [Town 1] and left school [at a young age], when she was unwell.
·She has never worked.
·The applicant married in 1977, and her husband died in October 2011.
·The applicant has four children. The first child is a daughter who has been an Australian citizen for [a number of] years. Her second child is a daughter who lives in Fiji. The third child a son, who lives in [Australia]. He is [a particular age], and now an Australian citizen. He is [occupation]. Her fourth child, another son, lives in [another country].
·The applicant has visited and stayed in Australia many times including for six months in [2005], for a further six months from late 2006 to early 2007; again in 2007 to visit her family; for one month in 2011; again for one month in 2012. Since arriving in Australia in March 2012 she has not returned to Fiji.
·The applicant was raped in 2000.
·The applicant remained living in Fiji continuously until about 2012. While her husband was alive, she had his protection.
·There have been a number of incidents where local Fijian youth have harassed her.
·The applicant was assaulted and abused as claimed in February 2012, and this caused her to then come to Australia.
The Tribunal found that the rape of the applicant in 2000 constituted serious harm, as did the assault of February 2012, but the other matters referred to by the applicant did not. The Tribunal did not consider that the persecution claimed by the applicant involved systemic and discriminatory conduct. The Tribunal accepted that the applicant suffered discriminatory conduct on the basis of ethnicity, but did not accept that she had suffered serious harm of a systemic kind.
On appeal to the Federal Circuit Court, on 29 March 2017, the matter was remitted, by consent, to the Tribunal to re-determine according to law. This was on the basis that the Tribunal fell into jurisdictional error by failing to consider the applicant’s claim that, within a short period of time after her husband’s death, she was targeted in several incidents, which was more than that encountered by an average woman in Fiji.
Independent information
The Tribunal notes that the DFAT, Country Report – Fiji, 27 September 2017 relevantly states:
Indo Fijians
The majority of Indo-Fijians (approximately 250,000 in total) are descendants of north Indians. The majority of this group are Hindu, but it also includes Muslims and Sikhs. Their primary social representative groups have been religious, including the Shree Sanatan Dharm Pratinidhi Sabha and the Fiji Muslim League (see Religion).
South Indians are a smaller group. Again, the majority is Hindu but also includes small numbers of Muslims and Christians. TISI Sangam (which claims approximately 30,000 members) and Andhra Sangam (which has approximately 2,000 to 5,000 members, localised around Ba and the West of Viti Levu) generally represent Tamil-speaking South Indians.
Distinctions between ethnic subgroups have blurred over time, including through inter-marriage and the diminution of caste distinctions (given the mixing of social groups, the caste system was enforced less rigorously in Fiji than in India). The blurring of social groups is evidenced by the emergence of a Fijian dialect of Hindi.
Instances of official discrimination against Indo-Fijians are limited. In the September 2014 election, the Bainimarama government drew strong support from the Indo-Fijian population (up to 80 per cent of the Indo-Fijian vote). DFAT assesses that the strength of Indo-Fijian support for the government is in large part because of its non-discriminatory policies in contrast to the strong nationalist stance of the major opposition party, SODELPA.
In general, Indo-Fijians and indigenous Fijians co-exist amicably. While the two groups have distinct cultural traditions, over 100 years of co-existence in Fiji has led to a substantial degree of cultural overlap between the two groups and a level of social symbiosis exists. For example, it is common for Indo-Fijians to drink kava (yaqona in Fijian; a plant of Pacific origin with sedative effect and a central role in traditional Fijian ceremonies), and for Fijians to eat curries and to celebrate Diwali. Many Indo-Fijians identify primarily as Fijian and secondarily, or not at all, as Indian. However, there are some Indians who strongly maintain Indian pride and refer to themselves as ‘Indians’. Many Indo-Fijians, particularly in rural areas, speak or understand Fijian.
Overall, DFAT assesses that Indo-Fijians face a low level of official and societal discrimination based on their race/nationality.[2]
[…]
Police
The Fiji Police Force (FPF) has several thousand sworn personnel, giving it a police to population ratio comparable to Australia’s. The country’s geographic spread is a challenge, with some difficulty in providing advanced police capabilities to remote islands. The ethnic make-up of the FPF roughly reflects Fiji’s broader ethnic make-up, with approximately one third of members being of Indo-Fijian descent. However, there are few senior Indo-Fijian officers with much of the senior leadership appointed from the Military. The FPF is generally assessed to be amongst the more capable police forces in the Pacific, but it is less capable than the military.
The FPF is significantly less influential than the RFMF within the Fijian bureaucracy. The interim government’s major support networks were drawn from the RFMF between 2006 and 2014. By contrast, the FPF was seen as an alternative source of power and was deliberately disempowered, including by disarming its officers. As a result, police officers do not carry arms, but can request armed back-up the military.
The FPF has some ability to protect individuals from societal harassment, discrimination, and violence. It is relatively accessible, though one Indo-Fijian community organisation claimed the police were sometimes unresponsive. Credible sources agree domestic violence is an area where police need to improve their responsiveness and action (see Women).[3]
[…]
[2] DFAT, Country Report – Fiji, 27 September 2017, paras 3.6-3.10.
[3] DFAT, Country Report – Fiji, 27 September 2017, paras 5.8-5.11.
Women
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.[4]
[4] DFAT, Country Report – Fiji, 27 September 2017, paras 3.71-3.74
The Tribunal notes the following detailed independent information set out in the first Tribunal decision:
Crime in Fiji
Robbery, theft and violent assault occur in Fiji, including against tourists and expatriate residents. Incidents occur more frequently in urban areas and at night. Although most crime is opportunistic, there have been incidents of violent crime such as assault, sexual assault, and robbery in which expatriates and tourists have been targeted…..Home invasions also occur, affecting both locals and expatriates.”[5]
[5] (Department of Foreign Affairs and Trade 2013, Fiji, 27 February, smartraveller.gov.au < US Department of State’s Overseas Security Advisory Council provided information in a March 2012 report outlining the most common forms of crime in Fiji and indicating that threats of violence are used by persons breaking and entering an occupied residence or business. The relevant section of the report stated:
“The crime rate in Fiji is rated “HIGH” by the U.S. Department of State. Crime is a continuing problem. Most crimes are property crimes, such as robbery, burglary, breaking and entering, and petty theft. Violent crimes, such as simple assault, sexual assault, and armed robbery, while less common than many large metropolitan cities in the U.S., do occur with some frequency.
…Property and personal crimes can occur 24 hours a day, though street crimes occur predominantly at night. Most burglaries are surreptitious and do not involve violence. However, many burglars do not hesitate to enter an occupied residence or business and have brandished weapons, usually knives or machetes. In such cases, the burglaries appear to be planned and carried out by groups of two to ten, with the average being five. They will break through security bars and solid wood doors. Some businesses are targeted for robbery due to lax cash handling/transport procedures.”[6]
[6] (Overseas Security Advisory Council 2012, Fiji 2012 Crime and Safety Report, 21 March < Accessed 4 March 2013)
No reports have been located which indicate that Indo-Fijian women are particularly targeted by crime, although there are reports of women being targeted.
Indo Fijians and racial tension
Indigenous Fijians comprise approximately 57 per cent of the Fijian population, and Indo-Fijians 38 per cent.[7] Tension has traditionally existed between the indigenous Fijian population, who are overwhelmingly Methodist Christian, and the ethnic Indo-Fijian population, who are primarily Hindu.
[7] Hindu American Foundation 2011, Hindu Human Rights in Fiji: Excerpts from HAF’s 2011 Report < Accessed 9 August 2012
Discrimination against Indo-Fijians was particularly pronounced during the time indigenous Fijian Laisenia Qarase, who was installed as leader after the 2000 coup, was in power. The Sydney Morning Herald reported in 2012 that “the political system split down ethnic lines during that period, most indigenous Fijians voting for Mr Qarase and Indian-Fijians voting primarily for then-opposition leader Mr Chaudhry”.[8] Internal conflict between Qarase and military chief Commodore Frank Bainimarama eventually led to the ouster of Qarase in a bloodless coup in December 2006.[9] In 2009 the constitution was abrogated and current Prime Minister Bainimarama announced that a fourth constitution would be drafted by 2013 that would do away with the discriminatory provisions contained in the previous version.[10]
[8] Welch, D 2012, ‘Fiji’s military regime inspires loyalty, even in the midst of a crackdown’, Sydney Morning Herald, 13 January, FACTIVA
[9] Ramesh, S 2007, Fiji, 1987-2007: The Story of Four Coups, Worldpress.org, 30 April < Accessed 9 August 2012
[10] USDOS stated in its Country Report on Human Rights Practices 2011: “the abrogated constitution notes that “the composition of state services at all levels must be based on the principle of reflecting as closely as possible the ethnic composition of the population,” but a nonjusticiable compact in the constitution also cites the “paramountcy” of Fijian interests as a guiding principle. The compact also provides for affirmative action and “social justice” programs to “secure effective equality” for ethnic Fijians and Rotumans, “as well as for other communities.” The compact chiefly benefited the indigenous Fijian majority, although Indian-Fijians dominated the commercial sector.” – US Department of State 2012, Country Reports on Human Rights Practices 2011- Fiji , Section 6
Information was located regarding discrimination against ethnic Indians in Fiji more generally. Freedom House reported in 2011 that race-based discrimination in Fiji is pervasive. The 2011 Freedom in the World report notes that indigenous Fijians “receive preferential treatment in education, housing, land acquisition, and other areas”.[11] This ongoing discrimination has led to a ‘brain drain’ of Indo-Fijians in recent decades. The US Department of State (USDOS) noted in its International Religious Freedom Report for 2011 that there were “reports of societal abuses or discrimination based on religious affiliation, belief, or practice”.[12]
[11] Freedom House 2011, Freedom in the World 2011 – Fiji < Accessed 1 August 2012
[12] US Department of State 2012, International Religious Freedom Report 2011- Fiji , 30 July, Section III
In its 2009 country profile of Fiji, the UK Foreign and Commonwealth Office stated that although Indo-Fijians and ethnic Fijians live largely separate lives, race relations are “generally harmonious”. There have been reports of inter-communal violence but the UK Foreign and Commonwealth Office also reported that there was no racial violence after the 2006 coup.[13]
[13] UK Foreign & Commonwealth Office 2009, ‘Country Profile: Fiji’, UK & Commonwealth Office website , 11 September fco/country-profiles/asia-oceania/asia-fiji/?profile=all – Accessed 23 September 2010 – [Information deleted]
Advice received from DFAT in July 2010 regarding the claimed targeting of members of the Fiji Indian community does not identify Indo-Fijians as being at risk from authorities, though there was initially some low-level conflict with indigenous Fijians. It notes the following
We are aware that some individuals and groups in Fiji have considered the regime and some of its policies to be ‘pro-Indian’. Consequently, there have been a small number of cases where members of the Fiji Indian community have been subject to harm usually in the form of verbal abuse and intimidation (and generally from the indigenous Fijian community)…However, the main political party representing the Indo-Fijian community (the Fiji Labour Party), which had originally taken part in the interim government, is now identified as being opposed to the regime. This has resulted in some moderation of anti-Indian sentiments.[14]
[14] Department of Foreign Affairs and Trade 2010, DFAT Report 1167 – Fiji: MRT/RRT Information Request: FJI36727, 6 July
Author Susanna Trnka states that in contrast with his predecessors, current Prime Minister Frank Bainimarama has “actively positioned himself as opposed to indigenous Fijian nationalist rhetoric”, eschewing calls for a Christian state. Bainimarama claimed that the coup that installed him as leader was necessary to ensure that Fijian citizens would be able to enjoy equal rights.[15] Bainimarama is quoted as saying that a new Fijian government must be founded on “a truly democratic system based on the principle of one person, one vote, one value; we will not have a system that will classify Fijians based on ethnicity”.[16]
[15] Trnka, S 2011, ‘Re-mythologizing the State: Public Security, 'the Jesus Strategy' and the Fiji Police’, Oceania, vol. 81, no. 1, FACTIVA
[16] Perry, M 2012, ‘Fiji military must restore democracy-Commonwealth’, Reuters, 3 January, FACTIVA
In this vein, the government claims to be instituting reforms aimed at ending discriminatory practices; USDOS, however, reported in 2012 that this process has “stalled”.[17] In 2010, the government announced that from then onwards, all of Fiji’s citizens would be known as “Fijians” and that indigenous Fijians would be known as “iTaukei” (meaning “owners” in Fijian). In June 2012, the NGO Alternate Report to the Committee on the Elimination of Racial Discrimination for the Republic of Fiji noted that “this labeling of all nationals as Fijians is only a band-aid solution to a problem that has for many years affected the people, development and progress of Fiji”, and that “despite the promulgation of several important laws, policies, and programmes the State Party has failed to sufficiently eliminate racial discrimination, particularly against ethnic Indians”.[18]
[17] US Department of State 2012, Country Reports on Human Rights Practices 2011- Fiji , 24 May, Section 6
[18] Citizens’ Constitutional Forum on behalf of the NGO Coalition for Human Rights 2012, NGO Alternate Report to the Committee on the Elimination of Racial Discrimination for the Republic of Fiji, June, p.4, 16 < Accessed 1 August 2012
A January 2012 interview with a local Indo-Fijian man paints a picture about the current administration in Fiji. The interviewee, Vijay, states that the situation for Indo-Fijians has improved since Bainimarama took control in 2006. He states that prior to the latest coup, stones were thrown at his roof “every second night” and that “you could hardly walk down the road – they punch you, they spat on old ladies but under Bainimarama he made the police be very strict”. The article further states that new laws give the government “sweeping powers of arrest and detention”, which the government is using to crack down on religious groups and trade unions. However, according to the Sydney Morning Herald, many Indian Fijians “support the coup government because it brought stability and is less corrupt”.[19]
[19] Welch, D 2012, ‘Fiji’s military regime inspires loyalty, even in the midst of a crackdown’, Sydney Morning Herald, 13 January, FACTIVA
Indo Fijians in the police Force and Police protection of Indo-Fijians
Definitive information was not found on the ethnic composition of the Fiji Police. Sources provide conflicting information on the Indo-Fijian representation in the Fiji police force. A recent Radio Australia program describes the police force as “mainly Indo-Fijian”.[20] It would seem unlikely, however, that this statement is correct. Other sources state that Indo-Fijians are typically under-represented in the police force.[21] According to the Fiji Police Service Values: “The composition of the Police Service reflects as closely as possible the ethnic composition of the population, taking account, when appropriate, of occupational preferences.”[22] Indo-Fijians account for 37 per cent of Fiji’s population. According to the latest US Department of State report, Indo-Fijians comprised approximately 35 per cent of the civil service overall.[23]
[20] ‘Fiji police commissioner stands down’ 2010, ABC Radio Australia, 27 August – Accessed 24 November 2010 –
[21] Narayan, S. 2008, ‘Racial discrimination in Fiji’, Journal of South Pacific Law, vol. 12, no. 1, p. 69, Pacific Islands Legal Information Institute – Accessed 24 November 2010 –; Immigration and Refugee Board of Canada 2006, FJI101484.E – Fiji: Situation of Indo-Fijians and their treatment by indigenous Fijians; police reaction to reports of racially-motivated crimes against Indo-Fijians; availability of state protection for Indo-Fijians (2002 – 2006) , 17 October –
[22] ‘About a Police Force: Fiji’ 2007, Commonwealth Police Watch E-Magazine, vol. 8, July – Accessed 24 November 2010 –
[23] US Department of State 2010, 2009 Human Rights Reports: Fiji, 11 March –
No information was located indicating that the police or army are specifically targeting Indo-Fijians for ill-treatment and/or arrest. Nor were reports located of Indo-Fijians being unable to access protection for specific reason of their ethnicity. The tendency towards impunity and corruption within the security forces noted above however, likely limits the willingness and ability of many Fijians (regardless of ethnicity) to access protection. As noted above, DFAT advice received in July 2010 states that while there have been a small number of cases where Indian Fijians have been verbally abused or intimidated by the indigenous Fijian community, overall anti-Indian sentiment has been moderated by the opposition of the Fiji Labour Party to the interim government.[24]
[24] Department of Foreign Affairs and Trade 2010, DFAT Report 1167 – Fiji: MRT/RRT Information Request: FJI36727, 6 July –
Commissioner Telini
In August 2010 Teleni was succeeded by career policeman and deputy commissioner, Joeli Baleilevuka as acting police commissioner. Three weeks later, Commodore Bainimarama appointed one of his closest military colleagues, General Iowane Naivalurua, to the job.[25] Sources indicate that Baleilevuka removed Teleni’s Christian programmes and suspended all religious activities within the force.[26] Baleilevuka was also reportedly reviewing all the new posts that were created and implemented by his predecessor.[27]
[25] Callick, R. 2010, ‘Fiji names military man as police chief’, The Australian, 20 September – Accessed 24 November 2010 –
[26] ‘End of Fiji police “crusades” to boost crimefighting’ 2010, ABC Radio Australia, 1 September – Accessed 24 November 2010 –; ‘Reform for Fiji police’ 2010, Babasiga weblog, 27 August – Accessed 24 November 2010 –
[27] ‘New Broom in Fiji Police Force. Time for the return of some Professionalism’ 2010, Fiji Today weblog, 29 August – Accessed 24 November 2010 –.
Information was not found on whether Naivalurua has continued these reforms or implemented others. An article in The Australian reports General Naivalurua as saying after being appointed to the police job: “Expect changes, but not everything will be changed. I hope to build a strong force that will work strongly in partnership with the community.”[28]
[28] Callick, R. 2010, ‘Fiji names military man as police chief’, The Australian, 20 September – Accessed 24 November 2010
Women
A search of the sources consulted found no current information specifically on the matter of risk of racially motivated attacks for widowed women or attacks on Indo Fijian widows.
According a Development Bulletin article Indo Fijian women were allegedly subject to sexual violence following the 19 May 2000 coup:
For many months following 19 May 2000, many non-indigenous Fijians and some indigenous Fijians lived in fear of violence. Non-indigenous Fijians, especially rural Indo-Fijians, were the victims of targeted and orchestrated violence. There were allegations of rape and other forms of sexual violence by civilian groups against non-indigenous women (Imrana Jalal, P. 2002 ‘Gender and race in post coup d’etat Fiji: Snapshots from the Fiji Islands’, Development Bulletin, Development Studies Network website, pp 28-39http://devnet.anu.edu.au/genderpacific/pdfs/04_gen_civil_jalal.pdf – Accessed 19 July 2007 –).
A number of reports indicate, however, that violence and discrimination against women are widespread in Fiji, but no distinction is made between female ethnic groups and other ethnic groups.
Information about the position of women is available from the United States[29]
[29] US Department of State 2012, Country Reports on Human Rights Practices 2011 – Fiji, 24 May, Section 6 < Accessed 25 May 2012
Women
Rape and Domestic Violence: Rape, domestic abuse, incest, and indecent assault were significant problems. The Crimes Decree provides for a maximum punishment of life imprisonment for rape; under the decree rape is an indictable offense, which can be tried only in the High Court. The 2010 Domestic Violence Decree recognizes spousal rape as a specific offense. The NGOs Fiji Women’s Rights Movement and Fiji Women’s Crisis Center pressed for more consistent and severe punishments for rape in practice.
The Domestic Violence Decree created a specific domestic violence offense. Police claimed to practice a “no-drop” policy, under which they pursued investigations of domestic violence cases even if a victim later withdrew her accusation. However, women’s organizations reported that police were not always consistent in their observance of this policy. The decree gives the police authority to apply to a magistrate for restraining orders in domestic violence cases, but police often told the victims to apply for such orders themselves. Police officers were not always aware they had the power to apply on the woman’s behalf. As a result, complainants sometimes were obliged to seek legal assistance from a lawyer or an NGO. Courts dismissed some cases of domestic abuse and incest or gave perpetrators light sentences. Incest was widely believed to be underreported. Traditional and religious practices of reconciliation between aggrieved parties in both ethnic Fijian and Indian-Fijian communities were sometimes taken into account to mitigate sentences in domestic violence cases. In many cases, offenders were released without a conviction rather than jailed on the condition they maintain good behavior. An active women’s crisis center sought to raise public awareness of domestic violence.
Four women’s crisis centers funded by foreign governments operated in the country. The centers offered counseling and assistance to women in cases of domestic violence, rape, and other problems, such as lack of child support.
Sexual Harassment: The 2009 Human Rights Commission Decree specifically prohibits sexual harassment, and criminal laws against “indecent assaults on females” prohibit offending the modesty of women and have been used to prosecute sexual harassment cases. Under the ERP workers can file complaints on the grounds of sexual harassment in the workplace. The Ministry of Labor reported that one sexual harassment complaint filed with the Employment Relations Tribunal (ERT) under the ERP in a prior year was withdrawn during the year. Two other sexual harassment complaints were filed with the ERT during the year, but information on their status at year’s end was not available.
In response to various complaints in 2009 from some indigenous village and provincial councils about a purported breakdown of order in villages, in 2010 the Ministry of Indigenous Affairs drafted a model village bylaw addressing issues raised by the councils, including women’s dress. The draft model bylaw included a prohibition on wearing of shorts, t-shirts, and long hair by women. During the year the government announced that the bylaw was a draft only that the councils should not yet enforce. Despite the announcement, councils continued to enforce their own versions of the bylaw, and some village chiefs were charged with assaults on persons judged to be in breach of it.
…..
The Ministry for Women worked to promote women’s legal rights.
Rape, domestic abuse, and other forms of violence against women are widespread in Fiji, with some women’s groups claiming that cases of rape are increasing.[30] A high majority of rape cases are perpetrated by family members or other individuals known to the victim. The UN Population Fund Pacific reported in 2008 that the perpetrator was known to the victim in 70 per cent of rape cases, with 32 per cent of rapes committed by fathers, stepfathers and grandfathers. In these cases, family members will sometimes defend the perpetrator, and pressure the victim “not to ‘tarnish the family name’ or ‘break up the family’”.[31]
[30] Freedom House 2010, Freedom in the World – Fiji, June – Accessed 10 September 2010; US Department of State 2010, Country Reports on Human Rights Practices for 2009 – Fiji, 11 March, Section 6 –; Amnesty International 2010, Fiji – Submission to the Committee on the Elimination of Discrimination Against Women, 46th session, UN High Commissioner for Human Rights website, July, p.9 – Accessed 15 March 2011 –
[31] UN Population Fund Pacific 2008, ‘An Assessment of the State of Violence Against Women in Fiji’, UN Women Watch website, pp.18-19 – Accessed 18 August 2009
The maximum punishment for rape under the penal code is life imprisonment, although most cases are prosecuted in magistrate’s courts, which are bound by a sentencing limit of 10 years. Sentences for rape were also inconsistent between different magistrates, ranging from 1 to 6 years imprisonment.[32] Amnesty International reported in July 2010 that some magistrates were discriminatory in their statements in court. During a hearing of a domestic violence case in 2009, the magistrate “told the victim she was not living in a utopia and should not expect a perfect husband [and] then reportedly asked: ‘Which woman has not been slapped by her husband?’”. The same magistrate dismissed a rape case, stating “that the victim was probably hallucinating because she had provided conflicting statements and that the victim should have bitten the perpetrator’s penis to enable her to escape”.[33]
[32] US Department of State 2010, Country Reports on Human Rights Practices for 2009 – Fiji, 11 March, Section 6
[33] Amnesty International 2010, Fiji – Submission to the Committee on the Elimination of Discrimination Against Women, 46th session, UN High Commissioner for Human Rights website, July, p.11 – Accessed 15 March 2011 –
The traditional practice of seeking forgiveness from a victim’s family by offering gifts, known as bulubulu, has also been blamed for light sentencing in rape cases. Evidence of bulubulu being presented can be brought up in court in the perpetrator’s defence, often reducing sentences.[34] However, the Fijian delegation to the UN Committee on the Elimination of Discrimination against Women stated in 2010 that “[t]he practice of ‘bulubulu’ was in fact declining as women were now more aware of their rights. Furthermore, in courts, ‘bulubulu’ was no longer accepted”.[35]
[34] Amnesty International 2010, Fiji – Submission to the Committee on the Elimination of Discrimination Against Women, 46th session, UN High Commissioner for Human Rights website, July, p.12 – Accessed 15 March 2011 –
[35] Committee on Elimination of Discrimination Against Women 2010, ‘Fiji Delegation Tells Women’s Anti-Discrimination Committee Change Will Take Time, But New Decrees Aim to Protect Women’s Rights While Constitution is Formulated’, General Assembly WOM/1811, United Nations website, 14 July – Accessed 15 March 2011
In addition, in a February 2011 interview, Police Inspector Atu Sokomuri stated that new laws in Fiji, including the Crimes Decree of 2009 which specifies rape and attempted rape as serious sexual offences, have led to harsher sentencing in recent years; “[w]ith the new decrees now rape sentencing they can get either life, or more than ten years in prison…there are rape offenders and suspects [who] have been taken to court and [have been sentenced to] over ten years, and some even getting…life sentences because of the enormity of the offence they committed”.[36]
[36] ‘The number of rape cases reported in Fiji on the rise’ 2011, Radio Australia, 10 February – Accessed 11 March 2011 –
A ‘no-drop’ policy was instituted in 1995 according to which police are prevented from dropping a charge when a complainant alleges sexual assault or domestic violence, even if the complainant wishes to withdraw the accusation.[37] The policy was extended to all forms of assault in 2008.[38] As a result of the no-drop policy, accusations of domestic violence tend to go to court. It has been claimed, however, that the ‘no-drop’ policy can act as a deterrent to women who do not necessarily want family members/partners brought before a court and/or sentenced.[39]
[37] ‘No drop policy breaks ground’ 2009, Fiji Times, 1 December – Accessed 29 February 2012.
[38] ‘Women welcome No-Drop Policy’ 2008, Fiji Times, 8 June – Accessed 28 February 2012.
[39] AusAID 2008, ‘Fiji Country Supplement’, Violence Against Women in Melanesia and East Timor – Building on Global and Regional Promising Approaches, pp.156-157 – Accessed 1 March 2012.
Legal/police protection is available in Fiji for women fleeing violence, and such protection is not dependant on the type of violence from which a woman is fleeing, though information was found which suggests that it is difficult to access emergency accommodation. Reports suggest, however, that both the general public, and more importantly the judiciary and the police force, may have a limited knowledge/understanding of the protections available.
Reports were found which indicate that counselling and legal aid services are available to women fleeing domestic violence, and are provided by Non-Government Organisations, in particular, the Fiji Women’s Crisis Centre.
The most relevant laws relating to violence against women are the Domestic Violence Decree (2009) the Crimes Decree (2009) and the Penal Code. There are provisions for the use of restraining orders under Part 2, Section 14 of the Domestic Violence Decree (2009). In a 2011 Fiji Times article a former Fijian judge is quoted as stating that: “it is not up to [police officers] whether to apply for a restraining order”. The article states that police have: “no choice but to apply for a restraining order whenever they receive complaints of domestic abuse.”[40] However, in a Fiji Police Force news report (possibly from 2012), police officers attending legal training were advised by the police force’s legal team: “to exercise their discretion when the need arose for application of Domestic Violence Restraining Orders in domestic violence cases.”[41] In a 2009 ABC Radio Australia report, the director of the Fiji Women’s Crisis Centre (FWCC) in Fiji cited a case in which a judge removed a restraining order so that the accused could attempt reconciliation with his partner, “against her wishes” (emphasis added).[42]
[40] ‘Restraining orders to protect victims’ 2011, Fiji Times, 4 February – Accessed 27 February 2012.
[41] ‘Legal Team in the North’ (undated), Fiji Police Force website – Accessed 5 March 2012.
[42] ‘Fiji Domestic Violence Concern’ 2009, ABC Radio Australia, 6 October – Accessed 28 February 2012.
The United Nations Population Fund (UNFPA) in August 2009 reported that under the Family Law Act 2004 restraining or protection orders are easier to obtain, however, a lack of awareness amongst police officers of their powers under this Act limits its effectiveness:
A positive feature of the Family Law Act (2004) that is being utilized in domestic violence cases are the restraining/protection orders. Previously, under the criminal code, restraining orders were difficult to obtain and were impractical for women seeking protection from violent partners. The process of application took several weeks and when women did receive a restraining order, there were certain deficiencies in that Police could not detain the man for breaching the restraining order. For those that breached the restraining order, it was only the Magistrate who could make a decision on whether the perpetrator should be remanded or not. Under the Family Law Act, restraining orders are easier to obtain and police now have the power to arrest and detain a man for breaching the order for up to 48 hours before he is brought before the magistrate. The magistrate then decides whether the man will be remanded further for the breach. It is important to point out, however, that there is a lack of awareness amongst police officers that they have these powers under the Family Law Act. Therefore, the Act is not being used as effectively as it could be (UN Population Fund Pacific 2008, An Assessment of the State of Violence Against Women in Fiji, UN Women Watch website, p.24
The UNFPA provides a substantial list of civil society organisations in Fiji which work on behalf of women’s rights, including the Fiji Women’s Crisis Centre, the Fiji Women’s Rights Movement, the Regional Rights Resource Team which provides training and resourcing on human rights issues relating to violence against women to the Police, the Judiciary and community based organizations, and Homes of Hope Pacific Counselling and Social Services (UN Population Fund Pacific 2008, An Assessment of the State of Violence Against Women in Fiji, UN Women Watch website, p.32 to AusAID, Fiji has a “long and active women’s movement and the presence of vocal and long-lived organisations such as the FWCC, the Fiji Women’s Rights Movement (FWRM) and the Regional Rights and Resources Team (RRRT).” AusAID reports that there are “numerous examples of innovative programs breaking new ground in violence prevention” in Fiji (AusAID 2008, ‘Fiji Country Supplement’, Violence Against Women in Melanesia and East Timor – Building on Global and Regional Promising Approaches, pp.160-161 Fiji Women’s Crisis Centre (FWCC) is a multi-racial NGO that was established in 1984 to better the lives of women through collective efforts against violence. The FWCC provides free, confidential and non-judgemental crisis counselling for victims of domestic violence, sexual assault, child abuse and sexual harassment. The FWCC provides legal advice and will accompany or refer clients to court, police stations, hospitals and other agencies. The FWCC is also involved in public advocacy, community education and research. The headquarters are located in Suva with three branches in Nadi, Labasa and Ba. The Nadi office services the townships of Nadi, Lautoka, Sigatoka and the surrounding villages and rural settlements (Fiji Women’s Crisis Centre website of the FWCC provides useful information on how a victim of domestic violencecan report it to the police and get a restraining order (‘Domestic violence (Criminal assault against women in the home)’ (undated), Fiji Women’s Crisis Centre website its 2011 Annual Report, Amnesty International concluded that:
High levels of physical and sexual violence against women and girls continued to be reported in the media and by women’s organizations. Despite government announcements declaring that the Domestic Violence Decree 2009 had come into force, activists continued to assert that the Decree has not been implemented and that stakeholders, including police, were still not aware of its provisions or how to implement them.[43]
According to a January 2012 report in the Fiji Times, there are 879 women in Fiji’s police force, which represents about 20 per cent of the total force.[44] In a 2010 Fiji Times article, the Assistant Commissioner of Police stated that “improved responses to offences against women and children” was a key performance indicator for the police force in 2010.[45] A July 2011 report by ABC Radio Australia states that:
In Fiji, female victims of sexual assault are getting a better response to the complaints lodged with police, thanks to the role of senior female officers. The police force has been working with Fiji’s women’s crisis centre to increase women’s access to justice.[46]
However, in November 2011 the Co-ordinator of the FWCC, in an interview with ABC Radio Australia, provided the following comment:
…the police force has come out very strongly because they have seen over the last quarter an increase of 118 per cent in reporting of domestic violence cases, so there is a great reason for concern. And it’s just that the police within the police force, I believe that enough awareness is not done with the police officers themselves to be trained to raise the awareness. If that was done and they were gender sensitised across the board from management right down to the lower ranks, then we could achieve a lot more.[47]
[43] Amnesty International 2011, Annual Report 2011 – Fiji.
[44] Tokalau, T. 2012, ‘Need for More Women in Police’, Fiji Times, 19 January – Accessed 28 February 2012.
[45] ‘Police to Crackdown on Family Violence’ 2010, Fiji Times, 4 November – Accessed 28 February 2012.
[46] ‘Fiji’s police improve sexual assault response’ 2011, ABC Radio Australia, 27 July – Accessed 29 February 2012.
[47] ‘Fiji Police need more Training to deal with Violence against Women’ 2011, ABC Radio Australia, 18 November – Accessed 28 February 2012.

For the purpose of this decision, the Tribunal made a request of the Country of Origin Information Services Section of the Department of Immigration and Border Protection requesting an update of independent information as contained in the first Tribunal decision. The Tribunal requested updated advice in relation to the treatment of Indo Fijians, women and single women without male support that would indicate whether individuals bearing those characteristics are targeted over and above the court population generally.
The following research response was provided on 20 October 2017. A copy of this information was provided to the applicant’s representative prior to the Tribunal hearing:
COISS found very limited information on the treatment of Indo-Fijian widows or older single women.[48]
[48] Sources consulted include UNHCR Refworld, The European Country of Origin Information Network (ECOI), US Department of State, NGO and human rights organisations, DIBP resources including CISNET and EBSCOHost, and the Google Internet search engine.
This Q&A report provides information on the recent human rights situation for Indo-Fijians; women; brief information on widows and older women; and brief information on general crime levels.
Indo-Fijians
The Hindu Human Rights report for 2017 gives a succinct background to the situation for Hindu Indo-Fijians in Fiji and provides the following summary of the current state of human rights for this ethnic group, noting that ethnically motivated violence has ‘drastically declined’:
The Indian-Hindu minority faces ongoing racial prejudice and inequitable treatment in many sectors, while longstanding ethnic tensions between the iTaukei (indigenous Fijian) population and Indo-Fijians continues to plague the country. The government, however, has taken several significant steps to confront discrimination and reduce ethnic tensions in recent years. Ethnic and religiously motivated violence targeting the Indian-Hindu minority has also drastically declined.[49]
[49] ‘Hindus in South Asia and the Diaspora: A survey of human rights, 2017’, Hindu American Foundation, 22 June 2017, p. 88, CISEDB50AD4657
The report notes that, although the situation has improved markedly, there were a string of racially and religiously motivated break-ins targeting the Indian-Hindu community in June 2016.[50]
[50] ‘Hindus in South Asia and the Diaspora: A survey of human rights, 2017’, Hindu American Foundation, 22 June 2017, p. 90, CISEDB50AD4657
The latest Department of Foreign Affairs and Trade (DFAT) country report on Fiji assesses that ‘Indo-Fijians face a low level of official and societal discrimination based on their race/nationality’ and notes that the Indo-Fijian population is strongly supportive of the Bainimarama government. DFAT further states:
In general, Indo-Fijians and indigenous Fijians co-exist amicably. While the two groups have distinct cultural traditions, over 100 years of co-existence in Fiji has led to a substantial degree of cultural overlap between the two groups and a level of social symbiosis exists. For example, it is common for Indo-Fijians to drink kava (yaqona in Fijian; a plant of Pacific origin with sedative effect and a central role in traditional Fijian ceremonies), and for Fijians to eat curries and to celebrate Diwali. Many Indo-Fijians identify primarily as Fijian and secondarily, or not at all, as Indian. However, there are some Indians who strongly maintain Indian pride and refer to themselves as ‘Indians’. Many Indo-Fijians, particularly in rural areas, speak or understand Fijian.[51]
[51] ‘DFAT Country Information Report - Fiji’, DFAT, 27 September 2017, p. 13, CISEDB50AD5787
The Office of the United Nations High Commissioner for Human Rights (OHCHR) has released an advanced unedited version of the Report of the Special Rapporteur on racism in Fiji.[52] This report details the legislative institutional framework, as well as public policies and initiatives prohibiting racism, racial discrimination, xenophobia and related intolerance. The report states that one of the challenges in the fight against racism and intolerance in Fiji is the historically complex relationship between the iTaukei and Indo-Fijian communities. According to the report, over 50 percent of iTaukei respondents in a recent survey stated that ‘inter-ethnic relations were “not good” or had deteriorated recently because of government policies that were seen as anti-iTaukei.’[53]
[52] ‘Report of the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance on his mission to Fiji (Advanced unedited version)’, UN Human Rights Council, 22 June 2017, CISEDB50AD5940
[53] ‘Report of the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance on his mission to Fiji (Advanced unedited version)’, UN Human Rights Council, 22 June 2017, pp.11-12, CISEDB50AD5940
The report notes the under-representation of Indo-Fijians in the civil service (nearly 70% iTaukei), the highest ranks of government (nearly 90% iTaukei), and especially the police and armed forces ‘where iTaukei make up more than 90% of the composition of these forces and for Fijians of Indian descent less than 5%, and about one-third in the police force’.[54] The ethnic demographics of the police force, however, roughly match those of the country.[55] The population of Fiji is about 60 per cent iTaukei and 35 per cent Indo-Fijian.[56]
[54] ‘Report of the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance on his mission to Fiji (Advanced unedited version)’, UN Human Rights Council, 22 June 2017, p.13 CISEDB50AD5940
[55] ‘DFAT Country Information Report - Fiji’, DFAT, 27 September 2017, p. 27, CISEDB50AD5787
[56] ‘Report of the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance on his mission to Fiji (Advanced unedited version)’, UN Human Rights Council, 22 June 2017, p.3 CISEDB50AD5940
DFAT notes that there are high levels of emigration from Fiji, particularly of Indo-Fijians.[57]
[57] ‘DFAT Country Information Report - Fiji’, DFAT, 27 September 2017, p. 5, CISEDB50AD5787
Women
In its 2017 country report, DFAT notes that Fiji remains a patriarchal society and that the country continues to have very high levels of physical and sexual violence against women, ‘even when compared to high regional averages.’ Overall, DFAT assesses women are at a ‘low risk of official discrimination’, a ‘moderate risk of societal discrimination’, and a ‘high risk of domestic violence.’ DFAT details the following legislative protections for women:
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.[58]
[58] ‘DFAT Country Information Report - Fiji’, DFAT, 27 September 2017, p. 22, CISEDB50AD5787
The US Department of State’s country report on human rights in Fiji in 2016 states that the ‘leading human rights problems included violence and discrimination against women’[59] and ‘rape, domestic abuse, incest, and indecent assault were significant problems.’[60]
[59] ‘Country Report on Human Rights Practices 2016 – Fiji’, US Department of State, 3 March 2017, p. 1, OGD95BE926860
[60] ‘Country Report on Human Rights Practices 2016 – Fiji’, US Department of State, 3 March 2017, p. 17, OGD95BE926860
Gender violence appears to be escalating in Fiji and that the current gap between rhetorical commitments to the crisis made by government and NGOs has not resulted in a decline in incidence, according to a 2016 Australian National University (ANU) publication.[61]
[61] : Gender Violence & Human Rights: Seeking Justice in Fiji, Papua New Guinea & Vanuatu, Biersack, A, Jolly, M & Macintyre, M (eds), Australian National University, 2016, p. 29, CIS38A80125089
Further:
Gender violence is said to be present within Fijian communities at extreme levels. Although the collection of meaningful statistics on this type of issue is difficult, and fraught with ethical contention, United Nations (UN) Women has compiled figures that suggest that 66 per cent of Fiji’s women have been exposed to family or intimate partner violence at some point in their lives, with roughly half this number experiencing violence on a regular basis. Other sources also suggest that 40 women out of every 100,000 inhabitants are victims of rape in Fiji. Conventional explanations as to why this violence persists, and is seemingly tolerated, point to the prevailing sociocultural terrain. It has been argued that the strong stigma attached to crimes of sexualised and physical violence experienced by women prevent victims of these crimes from coming forward to police to report their attacks. Within the Indian community, the high value placed on notions of izzat (honour) and sharm (shame) means that victims of sexual and physical violence face pressure from clan members or relatives not to report attacks to state authorities to avoid bringing disrepute upon the family. Women tend also to fear that reporting these incidents will make them targets of even more serious violent reprisals from their aggressors.[62]
[62] ‘Lost in Translation’: Gender Violence, Human Rights and Women’s Capabilities in Fiji’, George, N in: Gender Violence & Human Rights: Seeking Justice in Fiji, Papua New Guinea & Vanuatu, Biersack, A, Jolly, M & Macintyre, M (eds), Australian National University, 2016, pp.86-87, CIS38A80125089
One author acknowledges the important role women’s organisations in Fiji have played in combating the ‘seeming normalisation of gender violence.’[63] Another author notes that the ‘Fiji Women’s Crisis Centre (FWCC) is renowned throughout the Pacific for its women’s rights work.’[64] This section also details state responses to gender violence in Fiji.[65] A 2013 survey of violence against women and girls in Fiji found that ‘71 per cent of women had experienced physical and/or sexual violence at the hands of someone (partner or not) at some point in their life.’[66] The survey found that physical and/or sexual violence among iTaukei was almost twice as much as the physical and/or sexual violence among Indo-Fijian women.[67]
[63] ‘Lost in Translation’: Gender Violence, Human Rights and Women’s Capabilities in Fiji’, George, N in: Gender Violence & Human Rights: Seeking Justice in Fiji, Papua New Guinea & Vanuatu, Biersack, A, Jolly, M & Macintyre, M (eds), Australian National University, 2016, p.88, CIS38A80125089
[64] ‘Human Rights Work in Papua New Guinea, Fiji and Vanuatu’, Biersack, A in: : Gender Violence & Human Rights: Seeking Justice in Fiji, Papua New Guinea & Vanuatu, Biersack, A, Jolly, M & Macintyre, M (eds), Australian National University, 2016, p.291, CIS38A80125089
[65] ‘Human Rights Work in Papua New Guinea, Fiji and Vanuatu’, Biersack, A in: : Gender Violence & Human Rights: Seeking Justice in Fiji, Papua New Guinea & Vanuatu, Biersack, A, Jolly, M & Macintyre, M (eds), Australian National University, 2016, pp.294ff, CIS38A80125089
[66] ‘Human Rights Work in Papua New Guinea, Fiji and Vanuatu’, Biersack, A in: : Gender Violence & Human Rights: Seeking Justice in Fiji, Papua New Guinea & Vanuatu, Biersack, A, Jolly, M & Macintyre, M (eds), Australian National University, 2016, p.302, CIS38A80125089
[67] ‘Human Rights Work in Papua New Guinea, Fiji and Vanuatu’, Biersack, A in: : Gender Violence & Human Rights: Seeking Justice in Fiji, Papua New Guinea & Vanuatu, Biersack, A, Jolly, M & Macintyre, M (eds), Australian National University, 2016, p.303, CIS38A80125089
One author also notes that the history of coups in Fiji has made women ‘vulnerable to direct violence committed by the state’, and has also ‘contributed to an increased lawlessness and rising levels of gender violence within Fiji’s communities.’[68]
[68] ‘Lost in Translation’: Gender Violence, Human Rights and Women’s Capabilities in Fiji’, George, N in: Gender Violence & Human Rights: Seeking Justice in Fiji, Papua New Guinea & Vanuatu, Biersack, A, Jolly, M & Macintyre, M (eds), Australian National University, 2016, p. 85, CIS38A80125089
Widows and older women
A February 2017 study by the Fiji Women’s Rights Movement looks at perceptions of women and ageing in Fiji.[69] The study is based on responses to a survey on women and ageing. Challenges for older Fijian women include health issues, poverty and social stigma, according to this research. It is also worth noting here that, according to respondents, ‘Indian widows are treated as outcast in their society and not allowed to participate in many festivals or be a part of wedding ceremonies. Somehow they are labelled “untouchable”.’[70]
[69] Women & Ageing: Scoping Study on Perceptions of Ageing Among Women in Fiji, Waqanisau, M, Fiji Women’s Rights Movement, February 2017, CISEDB50AD5941
[70] Women & Ageing: Scoping Study on Perceptions of Ageing Among Women in Fiji, Waqanisau, M, Fiji Women’s Rights Movement, February 2017, p.26, CISEDB50AD5941
Respondents in the above report noted that personal safety and transportation are issues for older women, especially in rural and maritime areas.[71]
[71] Women & Ageing: Scoping Study on Perceptions of Ageing Among Women in Fiji, Waqanisau, M, Fiji Women’s Rights Movement, February 2017, p.76, CISEDB50AD5941
General crime levels
The latest DFAT country report on Fiji (dated 27 September 2017) states that ‘Fiji is generally stable and secure’. DFAT provides the following information on crime:
Crime rates are moderate. Rates of petty theft, robbery and murder are higher than in Australia, but consistent with regional averages. Increasing crime rates in recent years are most likely a result of youth unemployment and internal relocation to the cities. For example, police statistics indicated that the number DFAT Country Information Report FIJI 10 of recorded crimes against public morality (rape, attempted rape, and indecent assault) increased from 966 in 2008 to 2,980 in 2012. Part of this increase may also reflect higher rates of reporting. This trend affects Suva in particular. In January 2017, the government released the Fiji Police Force 2016 crime analysis report. Commissioner of Police, Sitiveni Qiliho, stated there was a reduction of four per cent in the overall crime rate after an 18 per cent increase for the 2014-2015 period. The recorded rates for violence against women however were criticised by the Fiji Women’s Crisis Centre, which argued that the report does not reflect the reality on the ground for female victims of domestic and sexual violence.[72]
The US Overseas Security Advisory Council (OSAC) 2017 Crime & Safety Report for Fiji provides the following information on crime in Fiji:
Most crimes are property crimes (petty theft, robbery, burglary). Street robberies and pickpocket incidents, especially those targeting tourists, occur predominantly at night. Criminals usually work in pairs but have been known to operate in larger groups. Street thieves commonly walk a line of parked cars in an effort to locate an unlocked one.
Violent crimes (assault, armed robbery) occur, though generally at a lower rate than in many large U.S. cities. Most assaults and robberies occur at night around popular restaurants and nightclubs. Often times the perpetrators/victims are intoxicated.
…There are extremely limited firearms in Fiji. Offenses using firearms carry stiff penalties, so other weapons (cane knives (similar to a machete), other sharp objects, blunt instruments) are used in the commission of crimes. It is common to see people carrying cane knives, as they are a routinely used agricultural tool.
…Sexual assault is a concern, particularly for women traveling alone at night.[73]
[72] ‘DFAT Country Information Report - Fiji’, DFAT, 27 September 2017, pp.9-10, CISEDB50AD5787
[73] ‘Fiji 2017 Crime & Safety Report’, Overseas Security Advisory Council (OSAC), 22 May 2017, pp.2-3, CISEDB50AD5939
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 cognizant 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 applicant is a citizen of Fiji, and accordingly her claims will be assessed against Fiji.
The delegate, and the Tribunal, as constituted by Members relevant to the first and third remitted reviews considered the applicant essentially a credible witness, with an exception relating to evidence concerning the applicant being targeted by a specific gang, discussed further below. The Member considering the second remitted review did not consider the applicant to be credible.
In the Tribunal hearing with respect to the current remittal (‘fourth Tribunal hearing’) there was a re-exploration of certain of the applicant’s key claims, in particular the home invasion and assault of her in February 2012. The applicant provided details broadly consistent with details provided previously.
In the fourth Tribunal hearing, there was one aspect of the applicant’s evidence that caused some concerns for the Tribunal. The applicant indicated that there had been no previous problems from native Fijians in the many years she had lived in the same location, while her husband was alive. The Tribunal asked the applicant if she was aware of other Indo Fijians in her neighbourhood suffering problems from the gang of youths who she claims to have suffered harm from after her husband’s death. The applicant provided no evidence of other individuals suffering any difficulties. The applicant indicated that neighbours would be reluctant to reveal problems. The Tribunal questioned the applicant about this statement. It considered that, if Indo Fijian neighbours were suffering problems from Indo Fijians, then it would be a topic of local discussion. The Tribunal noted that the applicant has claimed that she sought help from neighbours in relation to the difficulties that she suffered. The applicant maintained that she did not know of other Indo Fijians in the area previously suffering problems.

The Tribunal asked the applicant what this group did, prior to her husband’s death. The applicant indicated that she had no awareness of them.
The applicant’s evidence on this issue is troubling to the Tribunal. If the applicant claims that there was a group of native Fijian youths who were harassing vulnerable Indo Fijians then the Tribunal considers that there would likely have been some prior harassment of other individuals in the area. It strikes the Tribunal as unlikely that these youths would suddenly take action only in relation to the applicant, upon her husband’s death. The Tribunal considers it also unusual that this group had no more general presence known to the applicant prior to her husband’s death.
However, considering the consistency over time by the applicant in relation to the key events claimed by the applicant, these concerns do not result in the Tribunal finding that the applicant was not a credible witness in relation to these events.
In the fourth Tribunal hearing, the applicant responded to questions as to what she had faced in Fiji consistent with prior evidence. Further, in the interview with the delegate the applicant provided details of the break-ins, assaults and lower level harassment of local boys, with a degree of spontaneity. She provided details and context, and was broadly internally consistent. Peripheral details were provided of events which caused the Tribunal to consider, in listening to the interview, that the applicant was recounting events from actual experience.
The Tribunal is satisfied that there were a series of incidents affecting the applicant following the death of her husband in October 2011. The Tribunal is satisfied that [in] December 2011 the applicant returned home to find there had been a break-in, with valuables taken. Windows and doors were broken. The applicant reported the incident to the police, who came and investigated, and took fingerprints and indicated they would be back in touch if there were developments, but they never got back in touch. The Tribunal is satisfied that the applicant attended the police station to seek details as to progress, and was told that no information had been obtained and that she should simply wait.
The Tribunal accepts that, in the period following, the applicant had rocks and stones thrown at her house, had a dead rat placed near the home and, on one occasion, had clothes hanging on the clothesline set fire to. The Tribunal is also satisfied with evidence given by the applicant in the interview with the delegate that, on some occasions, people would knock at her front door and run away.
The Tribunal is satisfied that, on one occasion, a drunk local Fijian boy abused the applicant about her race and said that she did not belong in Fiji. The Tribunal is satisfied that, [at a particular time], six Fijian boys gathered near the applicant’s home and were drinking and making racist comments towards the applicant. The Tribunal is satisfied that this upset the applicant to the extent that neighbours helped her make arrangements to stay the night with the relatives.
The Tribunal is satisfied that [in] February 2012 two individuals broke in to the applicant’s house around 1am. The Tribunal is satisfied that the applicant was pushed and threatened and her house ransacked. After going to neighbours, the applicant called her son in Australia. The applicant’s brother came to support the applicant.
In making these findings, the Tribunal has taken into account the fact that the applicant failed to report the very serious incident of [February] 2012 to the police. The delegate indicated to the applicant that she found this hard to accept. The applicant explained that the police had done little in relation to the December 2011 incident. She also referred to an incident in 2011 when she and her husband had been attacked. They reported this to the police but police asked very embarrassing questions of them. The applicant was concerned that she would be put through a similar ordeal again and in a context where she did not have the support of her husband.
Notwithstanding prior issues with the police, the Tribunal does have some concerns at the applicant’s failure to report the February 2012 incident to the police. However, on balance, the Tribunal broadly accepts the explanation provided by the applicant as to her reluctance to do this.
The first Tribunal decision records that, in the related hearing, the applicant indicated that she would be targeted by a particular group of Fijians in her area. At the beginning of the hearing, the applicant claimed that she was targeted by a particular group because she told the police about them after the 2011 robbery. The Tribunal did not accept this as true because later in the hearing she said that she did not know who they were. The Tribunal expected that, if it was true that she was targeted by this group as a result of her going to the police, she would have been able to identify them, in contrast to her evidence that she did not know who they were.
This is an issue that was addressed in a submission by the applicant’s representative as part of the Tribunal proceedings on the second remittal. It was noted that, during the interview with the delegate, the applicant had indicated that there were many Fijians living at the other end of her street and that they were the ones responsible. It is indicated that the interpreter, in saying that she had no idea who would have done it, had not interpreted the applicant correctly.
The Tribunal notes that in the applicant’s original written claims the applicant indicates that, following the robbery in December 2011, she told the police about the suspected thieves. She then indicated that ‘they’ were the ones who perpetrated the other acts of intimidation.
The Tribunal considers that, on a fair interpretation of the evidence, the applicant has been broadly consistent in claims that she suspected that a certain group of local boys were the ones creating the problems. However, the Tribunal does not consider that the applicant specifically knew the individuals concerned to the extent that she was in a position to identify them. Therefore, it is consistent that the applicant would have told the police that she suspected a certain group of boys were involved without being able to identify them specifically. Therefore, the Tribunal does not draw adverse inference from the applicant’s evidence in the hearing in relation to this issue as set out in the first Tribunal decision.
The Tribunal notes that, in the interview with the delegate, the applicant made reference, for the first time, to an incident in 2000 when she and her husband were subject to a home invasion. She made mention of this in explaining why she did not report the February 2012 incident to the police, because of the way that police treated her and her husband in 2000.
Issues were canvassed in the second Tribunal decision as to the failure by the applicant to make the claim as to the harm suffered in 2000 previously, and potential inconsistencies as to whether the applicant was ‘raped’ in this encounter. In part, this centred on the definition of rape in the context of the applicant indicating that the perpetrators lifted up her dress.
The Tribunal accepts submissions that have been made by the applicant’s representative that the applicant has never sought to claim harm in the future based on what happened in 2000. Whilst there are some inconsistencies in terms of how the assault in 2000 has been specifically categorised, in terms of sexual assault, rape or otherwise, the Tribunal does not ultimately consider that the evidence on this issue, or the failure of the applicant to raise this incident prior to the interview with the delegate, undermines the applicant’s credibility to such an extent that the Tribunal disbelieves her claims as to what happened from the end of 2011 onwards.
The Tribunal considers that, cumulatively considered, the incidents suffered by the applicant from December 2011 until February 2012 constituted both serious and significant harm. The Tribunal considers, given the frequency of a number of events in a short space of time that the conduct was systematic.
In relation to the Refugee Convention criterion the key question is whether such harm, assuming that it might occur in the future, was, or would be, for the essential and significant Convention reasons. The relevant Convention reasons which are argued in the applicant’s case are a combination of her race, being a single woman living alone without male support, and being a single Indo Fijian woman without male support. Race is a stand-alone Convention reason. The Tribunal is satisfied that the other argued reasons would constitute particular social groups for the purpose of the Convention and the Act.
In prior Tribunal decisions, the determination has been made that what the applicant has, and might, face has been the opportunistic criminal conduct, as it is not uncommon in Fiji, and that it has not been systematic and discriminatory.
The first Tribunal decision undertakes an assessment of detailed country information which it indicates as not supporting the position that there is a targeting of Indo Fijian women, or single women, or single Indo Fijian women over and above harm to individuals or women generally. It is indicated that, whilst women in Fiji suffer difficulties, that does not occur to the extent that it can be said that every woman faces persecution in Fiji.
That independent information bolstered the view in the first Tribunal decision that the applicant had not been, and would not be, targeted for the essential and significant Convention reasons claimed.
The have been multiple instances of intimidating and harmful behaviour towards the applicant in less than a two month period, including a robbery and a home invasion involving an assault. The Tribunal is satisfied that, in at least a number of these incidents, there have been racial comments towards the applicant. The Tribunal is also prepared to accept that there is a link between the harm suffered by the applicant and the fact that she no longer has her husband to support her, thus making her more vulnerable.
The Tribunal is satisfied that the attacks have been perpetrated by local Fijian youths as a result, at least in significant part, of a combination of the applicant being widowed, Indo Fijian and a woman. The Tribunal is satisfied that the harm was systematic and discriminatory.
Although the Tribunal considers that the applicant was targeted, at least in significant part, for these Convention reasons, the Tribunal also considers that the catalyst for the ongoing adverse treatment of the applicant was her reporting the 2011 robbery to the police, as the applicant herself has indicated. The various Convention factors were, however, significant from that point on.
That begs the question whether the combination of the Convention factors were the essential and significant reason for the ongoing harm, or it was the fact of the applicant reporting the first incident to the police.
On balance, the Tribunal considers that Convention factors were the essential and significant reasons for the harm. The Tribunal considers that it is too fine a point, and not sufficiently clear for the Tribunal to be satisfied that the essential and significant reason for the harm was the applicant making the complaint to the police in relation to the 2011 break in.
Nevertheless, the fact that the applicant has been targeted by one particular group of youths, and that this has likely occurred over time because of initial complaint of the applicant to the police, is relevant as to whether the harm is localised or not. This is discussed further below.
Five years have passed since the events in question and there is a likelihood that the individuals who were targeting the applicant would have moved on in the lives such that they would not target the applicant now. However, this is not an assessment that the Tribunal can be confident of such as to find that the risk of harm to the applicant is remote.
The Tribunal considers that, if the applicant were to return to live in her home, there would remain a real chance of such ongoing attacks from local youths, based on the past targeting of her. That being the case, the Tribunal is satisfied that the applicant faces a real chance of serious harm if she were to return to her home, and that the harm would be systematic and discriminatory.
Harm from non-state agents may amount to persecution for a Convention reason if the motivation of the non-State actors is Convention-related, and the State is unable to provide adequate protection against the harm. Where the State is complicit in the sense that it encourages, condones or tolerates the harm, the attitude of the State is consistent with the possibility that there is persecution: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23]. Where the State is willing but not able to provide protection, the fact that the authorities, including the police, and the courts, may not be able to provide an assurance of safety, so as to remove any reasonable basis for fear, does not justify an unwillingness to seek their protection: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [28]. In such cases, a person will not be a victim of persecution, unless it is concluded that the government would not or could not provide citizens in the position of the person with the level of protection which they were entitled to expect according to international standards: MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [29]. Harm from non-State actors which is not motivated by a Convention reason may also amount to persecution for a Convention reason if the protection of the State is withheld or denied for a Convention reason.
The independent information before the Tribunal indicates that State protection for Indo Fijians, and women, is only partially effective, and that the police can be unresponsive. The applicant herself has experienced deficiencies in receiving assistance from the police, both in relation to the assault in 2000 and follow-up in relation to the robbery in 2011. Those deficiencies resulted in the applicant not seeking assistance from the police following the break in of 2012. There are deficiencies in the protection offered to women at risk of violence. Whilst the Tribunal acknowledges that only adequate, not absolute protection is necessary, the Tribunal does not consider that the independent information, in combination with the applicant’s own experience, suggests that the applicant would receive adequate protection from the State. The Tribunal makes this assessment acknowledging that the independent evidence does not suggest that police act in a discriminatory manner towards Indo Fijians.
The Tribunal’s decision in relation to State protection has been finely balanced in relation to the Refugees Convention criterion. The Tribunal notes, as an aside, that the applicant would also have been at a real risk of significant harm for the purpose of the complimentary protection criterion, if the Refugees Convention criterion had not been satisfied. Had the Tribunal found that the applicant faced a real risk of significant harm then it would have been clear that the applicant would not have been in a position to avail herself of the protection of the State to reduce the risk of significant harm to less than a real risk. The test for State protection in relation to the complementary protection critierion requires a lower bar than that applying to the Refugees Convention criterion.
The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country: Randhawa v MILGEA (1994) 52 FCR 437 per Black CJ at 440-1. Depending upon the circumstances of the particular case, it may be reasonable for a person to relocate in the country of nationality or former habitual residence to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. Thus, a person will be excluded from refugee status if under all the circumstances it would be reasonable, in the sense of ‘practicable’, to expect him or her to seek refuge in another part of the same country. What is ‘reasonable’ in this sense must depend upon the particular circumstances of the applicant and the impact upon that person of relocation within his or her country. However, whether relocation is reasonable is not to be judged by considering whether the quality of life in the place of relocation meets the basic norms of civil, political and socio-economic rights. The Convention is concerned with persecution in the defined sense, and not with living conditions in a broader sense: SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51, per Gummow, Hayne & Crennan JJ, Callinan J agreeing.
The first issue to consider in relation to relocation is whether the harm to the applicant is localised to her home area. The Tribunal put to the applicant in the hearing that the weight of the independent information before it did not suggest to the Tribunal that a single, Indo Fijian woman who was widowed, would generally be at a real risk of facing significant harm in Fiji. The applicant’s representative indicated that the characteristic of the applicant, being woman living alone was a significant additional factor. The Tribunal acknowledges that this is a factor to consider.
Independent evidence indicates that violence against Indo Fijians has declined. DFAT assesses, consistent with other information, that Indo Fijians face a low level of official discrimination. Race relations are generally harmonious. Whilst sexual and other violence against women is a problem in Fiji, a significant part of that violence occurs in domestic relationship, which is not applicable to the applicant. DFAT information indicates that Indo Fijian women face, relatively, a lower level of violence than indigenous Fijian women. The Tribunal does not consider that the independent evidence establishes an increased risk to the applicant based on being elderly or single. The Tribunal acknowledges that there is a report that indicates that Indo Fijian widows can be ostracised.
The applicant’s representative said that the applicant had been targeted, not by a specific group in her home area, but by youths in general and that risk would extend everywhere in Fiji. The Tribunal indicated that that was inconsistent with prior evidence that the individuals targeting the applicant had targeted her because the applicant had complained to the police in relation to the robbery in 2011. The applicant’s representative said that it was the case that the applicant had been targeted because she had complained to the police, but she is not saying that it was a particular group. He said that she just don’t know. The Tribunal does not consider that submissions over time in this respect have been consistent.
The Tribunal is not inclined to consider that the independent evidence establishes that an individual with the applicant’s Convention related characteristics would face a real chance of serious harm in all parts of Fiji. It is true that the fact that the Tribunal has determined that the applicant has faced harm in her local area for the relevant Convention reasons could suggest that the applicant faces harm for those reasons everywhere in Fiji. However, as indicated, the Tribunal is of the view that the applicant has been targeted by a particular gang in her local area also because of additional factors and a particular decision by the group to target her.
Considering all of the evidence, the Tribunal is of the view that the risk of harm is localised to the applicant’s home area. However, given the Tribunal’s conclusions on relocation, the ultimate decision of the Tribunal does not rest on this determination.

In terms of the reasonableness of relocating, the applicant said in the fourth hearing that it would be difficult for her to relocate due to her health issues. The applicant had made reference to having heart issues and fainting, and having neck and back problems. The applicant had given evidence that the wife of her son who lives in [Australia], had left her son when the applicant came to live with them in 2012, because the applicant was too much of a burden due to her illnesses. However, when the Tribunal explored with the applicant further her heart problems, she said that these have resolved in childhood.
In the submission provided following the fourth hearing by the applicant’s representative, it is submitted that the applicant has serious health problems, as confirmed by medical reports. Provided is a letter from [a particular doctor] dated [in] November 2017 indicating a past Medical History of: [various medical conditions]. Next to ‘neck pain’ is [a date in] November 2017. It indicates that the applicant is taking [particular medications].
Provided also is an Emergency Department Discharge Referral from [a particular emergency medical clinic] dated [in] November 2017. It indicates the applicant was admitted on [a particular date in] November 2017 with chest pain and neck ache. The report indicates no heart abnormalities but a recommendation of follow-up in the outpatient cardiology clinic. The applicant was prescribed [a particular medication].
The Tribunal has some concerns as to the credibility of the applicant in relation to claimed health conditions. The applicant provided, following the fourth Tribunal hearing, no evidence as to a prior admission at [a particular hospital], as claimed in the hearing, relating to her back condition. The applicant presented at [a particular emergency medical department] five days after the fourth Tribunal hearing, presenting with heart pains and a neck ache. This is the only evidence the applicant has provided of heart problems during her years in Australia. The hospital found no heart irregularities.
In the context of the applicant retracting claims in the hearing that she had suffered heart problems in Australia, the Tribunal views with some scepticism the applicant’s presentation to Emergency shortly after the fourth Tribunal hearing. In light of shifting evidence in the fourth Tribunal hearing concerning heart problems, the Tribunal could take the view that the presentation at Emergency was designed to bolster claimed health problems.
Whilst the Tribunal acknowledges that the applicant suffers from the conditions listed by the GP, the Tribunal is not satisfied on the evidence that the applicant suffers from a heart condition. The Tribunal does acknowledge that the applicant suffers from a range of other health conditions, which the Tribunal takes into account in assessing the reasonableness of her relocating.
The Tribunal explored with the applicant in the fourth Tribunal hearing the relationship with her daughter, and two brothers and sister in Fiji and whether she could move in with them, or near them. After comprehensively exploring these issues, the Tribunal accepts the applicant’s claims that it would not be practicable or reasonable to live with or near either her daughter or her siblings. The applicant gave evidence, convincingly, that her son-in-law does not get on with her. This is because the son-in-law has mistreated the applicant’s daughter. The applicant’s late husband confronted the son-in-law about this and this has caused the son-in-law to not want to interact with his wife’s parents. The applicant also gave convincing evidence that her two brothers, and her sister, have in-laws living with them. The applicant is not looked upon favourably by these in-laws. The applicant’s daughter and siblings live in rural areas which would make relocation to a nearby home unfeasible.
The Tribunal considered whether the applicant could relocate to another suburb of [Town 1], where she might be free of the gang who had targeted her. [Town 1] is a relatively large town of [a number of] people. The applicant indicated that [Town 1] is broadly of mixed ethnicity between native Fijians and Indo Fijians. The Tribunal asked the applicant if her age and only speaking Hindi would be a barrier in relocating. The applicant said that it would but did not expand when asked further about barriers based on only speaking Hindi.
The applicant is in later middle age, rather than old age. Whilst the Tribunal acknowledges that the applicant has number of health issues, whilst not insignificant, are not of the severity as portrayed by the applicant, in the Tribunal’s view. Having said that, the applicant presented as a person with some degree of fragility and having dependence on others. The Tribunal accepts that the applicant has relied, during most of her life, on the support and protection of her husband and, after his passing, on her children. The Tribunal considers that it would be a taxing and difficult exercise for the applicant to have to move to some other part of [Town 1] or some other part of Fiji, in the absence of her ability to live closer to her daughter and her brothers in Fiji. Whilst the applicant may have some support of her daughter and brothers in moving, they would not be immediately proximate to the applicant to provide support.
In assessing reasonableness, the Tribunal takes into account high levels of opportunistic crime in Fiji and the fact of the applicant being a reasonably vulnerable person, a woman, a widow, in late middle age, with some health issues, and having to move to an area where she may not know anyone and would not have any community support. Even if the prevalence of opportunistic crime, and difficulties faced by women, did not meet relevant protection criteria, they become relevant factors in assessing reasonableness.
Considering all of these circumstances, the Tribunal does not consider that it would be reasonable for the applicant to relocate to avoid a real chance of serious harm from a group of youths in the vicinity of her home area.
In summary, the applicant faces a real chance of serious harm for Convention reasons. The applicant cannot obtain the protection of the State. The harm is discriminatory and systematic. To the extent that the harm is localised to the applicant’s home area, it would not be reasonable for the applicant to relocate to another part of Fiji to avoid the harm.
The Tribunal is therefore satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant satisfies the criterion set out in s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
David McCulloch
Member

[2018] AATA 1881

9 April 2018

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