1709164 (Refugee)

1709164 (Refugee) [2021] AATA 528 (11 February 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1709164
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Nora Lamont
DATE:11 February 2021
PLACE OF DECISION:  Melbourne
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 11 February at 2:46 pm
CATCHWORDS
REFUGEE – Fiji – particular social group – Fijian Woman domestic violence victim – weak domestic violence services in Fiji – concentrated in Suva – not available in village environment – applicant will not be given adequate protection – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 6 April 2017 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 19 June 2015.
The Tribunal has considered all the evidence before it contained on the Departmental file, the Tribunal file and the submissions from the applicant and her representative and has decided to remit the matter without a hearing. Therefore, no Tribunal hearing was held in relation to this application.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant will be harmed in Fiji by her violent ex-husband, his family and their associates. For the following reasons the Tribunal has concluded that the matter should be remitted for reconsideration.
Based on copies of the applicant’s passport which was provided to the Department and in the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of Fiji and has assessed her claims against that country in relation to sections 36(2)(a) and 36(2)(aa) of the Migration Act.
On the basis of above, the Tribunal further accepts the applicant’s identity as claimed.
There is no evidence before the Tribunal to suggest that the applicant has the right to enter and reside on any safe third country for the purposes of s.36(3) of the Act.
The applicant first arrived in Australia [in] February 2013 at the age of [age] on a subclass 600 tourist [visa]. She subsequently applied for a Protection visa on 19 June 2015.
Claims for Protection
The applicant’s claims can be summarised as follows:
·The applicant was married (arranged) to a violent and abusive man.
·The applicant sought and received several intervention orders on her husband and finally divorced him.
·The applicant comes from a small village in Fiji and her ex-husband and his family can easily find her and do harm to her.
·She cannot return to her village as her brother has already told her she is not welcome back due to the divorce and she will be ostracised from the community.
·The applicant has converted to Christianity and this is well documented and would not be accepted back in the village.
·The applicant would not receive assistance from authorities as they are corrupt and domestic/family violence is widespread and accepted in Fiji.
·The applicant would be a single-divorced woman who are stigmatised in Fiji.
·The applicant has converted to Christianity.
Background
The applicant is a [age]-year-old Fijian Indian woman who was born in a small village [in] [a] Province a village of about [number] people mostly Hindus. The applicant was married in 2013 to a man who was [age] at the time of the (arranged marriage). As soon as the applicant was married her husband became physically, emotionally and sexually abusive to her.
The applicant endured several years of abuse and her husband was also abusing drugs. He would frequently withdraw his sponsorship for her visa and then re-affirm it in an attempt to control her. The applicant became pregnant but had an abortion due to the number of drugs her husband was taking and when he found out he became more abusive and told his family who then began abusing the applicant. On occasion the applicant’s husband would send her to his parent’s house where she suffered more abuse.
The applicant was able to get a 5-year Intervention Order against her husband and get a divorce. However, her ex-husband has family near the applicant’s village and has previously sent people to look for her. He has called the applicant’s mother. The applicant was able to get assistance from a women’s refuge shelter to escape his abuse and try to get her life back on track.
The applicant fears harm from not only her ex-husband but his family who is also abusive towards her. Her ex-husband has not given up on trying to find her and if she is returned to Fiji he will be able to find her. In addition, she cannot return to Fiji as a divorced woman and her brother has already told her she has shamed the family. This would leave the her alone with no family support, no work and with a stigma of being divorced woman who has been the victim of domestic violence.
Fiji is a small place with a small population where the applicant would be unable to find a safe place away from her ex-husband, his family and his associates. The Tribunal has not engaged with the claim related to Religion as it has found the applicant is a member of a particular social group. (see below).
Submissions
The Tribunal received the following submissions in support of this application:
·Copy of the applicant’s birth certificate
·Copy of the applicant’s passport
·Copy of an Intervention Order dated [May] 2015 taken out by the police against [her ex-husband].
·Statutory Declaration by [the applicant] dated 13 March 2020.
·Certified copy of Certificate of Divorce from the Federal Circuit Court of Australia which took effect [in] October 2017.
·Copy of Final Order – Apprehended Domestic Violence Order protecting [the applicant] from [the ex-husband].
·Letter from [a] Women’s Refuge, dated [February] 2019
·Statutory Declaration by [Ms A], dated 24 April 2019 and certified copy of [Ms A]’s passport biodata page
·Copies of Messenger messages between [Ms A] and [the ex-husband] from July 2017.
·Statement by [a named person] dated 15 February 2019.
·Letter from [the applicant]’s mother[dated] 24 April 2019 and copy of her Ministry of Social Welfare, Women and Poverty Alleviation identity card.
·Psychological Assessment by [a] Registered Psychologist, dated 16 May 2019.
Country Information
The Tribunal must have regard for country information published by the Department of Foreign Affairs and Trade (DFAT) when making assessments about whether Australia has protection obligations.
Country Information from the latest DFAT report of 27 September 2017 notes the following in terms of the treatment of women and violence against women:
3.69 The 2013 Constitution and legislation protect women’s rights to equality and freedom. For example, the Employment Relations Promulgation 2007 prohibits discrimination on the basis of sex, pregnancy, and family responsibilities. There is little official discrimination against women in law and official policy.
3.70 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.
3.71 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.
3.72 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.
3.73 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).
3.74 Overall, DFAT assesses women are at a low risk of official discrimination and a moderate risk of societal discrimination. DFAT assesses that women are at a high risk of domestic violence, at the hands of a spouse or intimate partner, with the situation being worse in rural areas and even worse in the outer islands. Credible sources reported that women often feel pressured to accept village compensation and remain in the abusive relationship. [1]
[1] DFAT Country Information Report Fiji 27 September 2017
The Monsoon Project in 2019 stated: “Domestic abuse is one of the most pressing human security issues facing Pacific Island nations, and in Fiji, it is grossly rampant. In previous studies, the Fiji Women’s Crisis Centre (FWCC) found that 72 per cent of Fijian women had experienced some form of physical, sexual or emotional violence in intimate relationships. These shocking rates have seen little change over recent years, despite action from both internal and external organisations”. [2]
[2] >
‘In Fiji, women living in rural areas are more vulnerable to domestic violence and less active in taking action to access justice, according to a study, which included interviews with people in Kadavu, conducted in Fiji in 2018 by the Hague Institute for Innovation of Law (HiiL) through the Fiji Access to Justice project’. [3]
[3] >
Fiji has one of the highest rates of domestic and sexual violence in the world. The latest report by the International Finance Corporation shows that almost two-thirds of the country’s women experience domestic or sexual violence during their lifetime.[4]
[4] >
Further DFAT information shows that domestic violence is a problem in Fiji:
5.11 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).
Findings
The Tribunal accepts that the applicant was in an abusive marriage and that she was able to get out of the relationship after seeking help from the police, the courts and a shelter. Further, given the details in the statutory declarations and letters that document the abuse and the ongoing issues the Tribunal accepts that the applicant fears return to Fiji and her ex-husband, his family and associates. The Tribunal also accepts that the applicant will be unable to live in her village given the stigma and the ongoing threats from her ex husband and family.
Having considered the applicant’s claims individually and cumulatively, the Tribunal accepts that the applicant fears being persecuted for one or more of the five reasons mentioned at s.5J(1)(a) and that there is a real chance that the applicant will suffer persecution for one or more of the five reasons mentioned in s.5J(1)(a) if she were to return to Fiji, now or in the foreseeable future.
Specifically, the Tribunal finds that the applicant is a member of a particular social group Fijian Woman who has experienced domestic violence. The domestic violence services in Fiji are weak and concentrated in Suva and not in villages and outlying areas, combined with a very small population the Tribunal considers the applicant will not be given adequate protection from her ex-husband and his associates.
County information indicates there is a real chance she would face serious harm from her ex-husband and his associates and from the Fijian authorities either directly or as a consequence of being denied proper protection.
The Tribunal considers that this chance of harm exists throughout Fiji and as such relocation would not mitigate this harm. Moreover, as above there is no indication that effective protection measures exist that would assist the applicant in avoiding this harm. DFAT assesses that women escaping domestic violence find it difficult to relocate:
In the case of women attempting to escape domestic violence, strong familial connections or support from community-based organisations are crucial for successful relocation. [5]
[5] DFAT Country Information Report Fiji 27 September 2017
In the circumstances of the applicant, the Tribunal considers that the subjective fear that she has for her future is objectively made out on the available country information. The Tribunal considers that the violence that the applicant faces does constitute serious harm. The Tribunal therefore considers, based on the evidence before it, that the applicant has a real chance of serious harm arising from her membership of a particular social group Fijian woman who has experienced domestic violence.
The Tribunal finds that the applicant has a real chance of serious harm on return to Fiji as a member of this group and finds she has a well-founded fear of persecution for this reason.
The applicant has experienced harm in the past to a significant extent, and the Tribunal notes that the assessment of protection is in fact a forward-looking assessment, what would happen to the applicant on her return to Fiji. Past experience can be a guide as to what can occur in the future, but it is only one aspect of the consideration.
The Tribunal considers that the country information demonstrates that the situation for women in Fiji has not changed considerably and that the applicant would be placed in a situation where she could be harmed. The Tribunal considers that the chance of being harmed can be described as real, and the harm that would be experiences would be serious. The Tribunal has considered that a period of time has lapsed, however, the Tribunal finds that on the country information and the applicant’s evidence that her ex-husband and his extended family still poses a serious threat and there is no real protection afforded to her.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant meets the refugee criterion in s.36(2)(a), it is not necessary for the Tribunal to consider the alternative criterion in s.36(2)(aa).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Nora Lamont
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2021] AATA 528

11 February 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies