1709464 (Refugee)

The applicant, a homosexual male from Fiji, sought review of a decision by the Minister for Immigration and Border Protection to refuse his application for a protection visa. The applicant claimed he would face persecution in Fiji due to his homosexuality, citing tribal and family taboos and the risk of physical assault. He also argued that the Fijian state would not provide him with adequate protection. The decision under review was made by the Minister, and the application for review was heard by the Federal Circuit Court of Australia.

The primary legal issue before the Court was whether the applicant had established that he would be a refugee within the meaning of section 5 of the *Migration Act 1958* (Cth). This required the Court to determine if the applicant had a well-founded fear of persecution for reasons of membership of a particular social group, namely homosexual males in Fiji, and whether he could avail himself of state protection. The Court also had to consider the significance of the applicant's frequent return visits to Fiji and his perceived obligations to his village community in assessing his fear of persecution.

The Court found that the Refugee Review Tribunal had failed to adequately consider the evidence regarding the applicant's fear of persecution as a homosexual male in Fiji. Specifically, the Tribunal had not properly assessed the impact of tribal and family taboos, nor had it adequately considered the risk of physical assault. Furthermore, the Tribunal's assessment of the availability of state protection was found to be wanting, particularly in light of the applicant's perceived obligations to his village community which might prevent him from seeking assistance from the authorities. The Court applied the principles established in *Chan v Minister for Immigration and Ethnic Affairs* and *Applicant S20/2002 v Minister for Immigration and Multicultural and Indigenous Affairs* regarding the assessment of well-founded fear and the availability of state protection.

Consequently, the Court remitted the decision under review to the Refugee Review Tribunal for redetermination according to law.