1712108 (Refugee)

[2022] AATA 5116

1712108 (Refugee) [2022] AATA 5116 (22 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Rayan Hazim, Legal Practitioner (5512171)

CASE NUMBER:  1712108

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Amanda Paxton

DATE:22 November 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the matter for reconsideration with the following directions:

(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act; and

(ii)that the second named applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.

Statement made on 22 November 2022 at 12:09pm

CATCHWORDS
REFUGEE – protection visa – Fiji – member of particular social group – widowed and divorced woman without male protection – first marriage ended when husband killed in car accident and abuse during second marriage – harassment, threats and fear of harm from first husband’s family and neighbours – house repossessed and all family in Australia – ethnicity – Indo-Fijian – credibility – applications for other visas and delay in applying for protection – physical and mental health – country information – ‘particular social group’ – member of family unit – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), (4), 5L, 36(2)(a), (b)(i), 65
Migration Regulation 1994 (Cth), Schedule 2

CASES
Applicant S v MIMA (2004) 217 CLR 387
Chan v MIEA (1989) 169 CLR 379
Chen Shi Hai v MIMA (2000) 201 CLR 293
MIEA v Respondent A (1995) 57 FCR 309
MIMA v Khawar (2002) 210 CLR 1
MIMA v Rajalingam (1999) 93 FCR 220
Morato v MILGEA (1992) 39 FCR 401
Selvadurai v MIEA (1994) 34 ALD 347

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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 23 May 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The first named applicant (the applicant) and the second named applicant are citizens of Fiji and applied for protection visas on 16 December 2015.

3. The delegate refused to grant the visas on the basis that the applicants are not persons in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and are not members of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a protection visa of the same class as that applied for by the applicants (s 36(2)(b) and s 36(2)(c) of the Act).

4. On 7 June 2017, the applicants validly applied for review of the Departmental delegate’s decision to the Tribunal, attaching a copy of the Departmental decision refusing the applicants’ application for a protection visa to the review application.   

5. The applicants appeared before the Tribunal on 29 September 2022 to give evidence and present arguments. The Tribunal hearing was conducted in English at the request of the applicants.

6. The applicants were represented in relation to the review.

   Criteria for a protection visa

7. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.

8. 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.

9. 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).

10. 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.

11. 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

12. 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 (the Department), and country information assessments 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.

    Member of the same family unit

13. Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations to include a spouse, dependent child or de facto partner of the family head (reg 1.12(1)(a)).

    CONSIDERATION OF Claims and evidence

14. The issues in this case are whether there is a real chance, if the applicant returns to Fiji, that she would be persecuted for one or more of the following reasons: race, religion, nationality, membership of a particular social group or political opinion; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Fiji, there is a real risk that she will suffer significant harm; and if either of the above are answered in the affirmative, whether the second named applicant is eligible for protection on the basis of being a member of the same family unit as a person who satisfies either the refugee or complementary protection criterion.

15. For the following reasons, the Tribunal has concluded that the decision under review should be remitted for reconsideration.

    Evidence before the Department

16. The applicants are a [Age]-year-old single woman who is widowed and divorced (the applicant) and her [Age] year old daughter (the second named applicant) both born in [City].[1] The applicants can speak, read and write in English and Hindi. 

    [1] See Department file [Reference].

17. According to the Departmental decision record provided to the Tribunal by the applicant, the applicants first arrived in Australia as visitors in [Year]. They remained in Australia for one month before returning to Fiji, both to arrive again in Australia on a Subclass 100 Partner (Provisional) visa in June 2010. On 2 November 2011, the applicants’ partner visa was refused and this decision was later affirmed at the Migration Review Tribunal (MRT). A request for Ministerial Intervention was not considered, and in 2014 the applicant lodged an application for a medical treatment visa which was also refused, a decision affirmed at the MRT, and a request for Ministerial Intervention was again not considered. In December 2015 the applicant lodged an application for a protection visa. 

18. In summary, the applicant declared the following in her statutory declaration to the Department:[2]

    [2] See Department file [Reference].

    a)    The applicant had a good childhood living safely with her parents who were well respected. She left school at [Age] when her mother died to look after her father.

    b)    The applicant married her first husband in [Year] and continued providing support to her father. Her father migrated to Australia sponsored by her sister in [Year].

    c)     The second named applicant was born on [Date]. 

    d)    The applicant was widowed when her husband died in a car accident in [Year]. Upon his death it was difficult for her to provide for her daughter financially. She was assisted by her father in Australia.

    e)    The applicant was treated poorly by the community. She was living alone in the house with her daughter which brought her shame and fear. At night she heard constant banging on her walls as her house was being stoned. She does not know their motives, but she felt helpless and fearful as she was a widow without male protection.

    f)   As the indigenous Fijians do not approve of Indian Fijian and want to get rid of them, she feared people in the community.

    g)    She feared her daughter would be raped as rape is prevalent in Fiji, especially for young women without the presence of a male figure for protection.

    h)    In [Year] she visited Australia for three weeks with her daughter on the invitation of her brother, during which time she met her second husband. She returned to Fiji and was married to her second husband on [Date, Year] and came to Australia along with her daughter on a Partner (provisional) visa in June 2010.

    i)   The applicant’s relationship with her ex-husband was good at the start but deteriorated when his pension payments were reduced, and they argued about money. She and her daughter suffered abuse from her second husband (and his son) and she was forced to leave the relationship and live with her father. A year later they were divorced, and her visa was cancelled. She and her daughter have suffered psychologically as a result of the abuse.

    j)   She studied [Subject] but could not find work in the field and she found work in a [Workplace].

    k)     In 2014, she received a letter from the landlord in Fiji, advising that he had repossessed the house and land which she had lived in and that her house had been destroyed in cyclone. She now has no place to go to upon return to Fiji. Her entire family resides in Australia and her previous husband’s family are all now deceased.

    l)   She fears persecution on the ground of being a member of a particular social group, being a single widowed and divorced Indian Fijian woman with no male protection. The applicant also makes the claim that she and her daughter will suffer significant economic hardship that threatens their ability to subsist, as they will have no job opportunities, no home to go to and no family to provide support.

19. The Department did not provide the applicant with the opportunity of an interview in connection with her application.

    Evidence provided to the Tribunal

20. In a statutory declaration dated 20 September 2022, the applicant provided the following to address the concerns raised by the Departmental delegate as follows:[3]

    [3] AAT 1712108, Doc Id. 10258263, 23 September 2022.

    Widow and Single Mother Status

    a)    In [Year], I married my deceased husband. Regrettably, he passed away in [Year] in a car accident. I went to see him at the hospital but did not get a chance to say goodbye as he had died instantly at the scene. My daughter was only [Age] years of age at that time. I felt helpless and worried about raising my daughter by myself. I struggled to comprehend the reality of my daughter growing up without a father and the negative influence it would have upon her.

    b)    It is uncommon in Indian culture for a widow to get remarried. When I remarried, my husband's family was angry as I had disrespected their family and the relationship I shared with my husband. They had personally threatened to kill me if I ever tried to return to Fiji and/or tried to have a relationship with them.

    c)     This situation is common in Fiji. The same thing happened with a lady in my village of [another Village]. Her husband had passed away due to ill health and left behind young children. She remarried to ensure her children had support. However, her previous husband's family were not happy, and they always harassed her until she moved away from the village.

    d)    After my husband died, the neighbours would harass us. They did so by throwing rocks at our house, trying to forcefully enter the premises at night to scare us and would verbally abuse us whenever we crossed paths with them.

    e)    I married [my second husband] in [Year], in Fiji. He left Fiji after two weeks, and I stayed alone, with my daughter, in my house. My neighbours continued their campaign of harassment until we managed to depart to Australia in June 2010. We have not returned to Fiji since.

    f)   My deceased husband's family will still harm me if l return to Fiji as I have dishonoured my late husband by remarrying and 'moving on'. Fiji is a small country, and the news of my return will travel quickly.

    Land Dispute and my Status as a Fijian Indian

    g)    Upon departing Fiji for Australia, we locked up the house and moved to Australia. Due to no movement in and out from the house, the landlord was informed the house was vacant. The landlord forcefully entered the premises and gave it to someone else to live in. The landlord also told me the house is no longer yours and to not come back to the premises. They sent me a letter to this effect dated 28 July 2014.

    h)    Although we are citizens of Fiji, Fijians still do not recognise Indians as a part of the country. Therefore, every Indian must pay rent for the land. However, paying the rent does not guarantee anything and the Fijian landlord can take over the land, house and belongings and ask tenants to leave at any time.

    i)   Therefore, if we return to Fiji we will be homeless and have no place to live. Since I was not able to complete my formal education in Fiji due to the passing of my mother in [Year ], I will struggle to survive in Fiji. Due to these circumstances I had to drop out of school at [Age] years old and was never employed in Fiji as I was a housewife during my first marriage. Following my husband's passing I was never employed in Fiji.

    j)   It will be difficult for me to survive in Fiji if I am forced to return back as I have also have a gap in my employment history from 2015 due to not having work rights until 2022. Before this, I worked low-scale jobs in factories, but even now with work rights it is difficult to secure a job in Australia and I have been unable to do so since October 2021. It will be more difficult for me to find a job in Fiji considering the struggling economy, and the fact that there are less employment opportunities than Australia of course.

    My Experiences as a Victim-Survivor of Family Violence and subsequent Mental Illness(es)

    k)     Upon visiting my immediate family in Australia in [Year], I met my now estranged husband. We entered into a relationship on [Date, Year] and subsequently married on [Date, Year]. Upon grant of my partner visa, my daughter and I arrived in Australia in June 2010. The relationship quickly dissipated as we were constantly fighting over money, and I was relying on him to help with my expenses.

    l)   During my marriage, I undertook studies and gained a certificate in [Subject] to try and improve my qualifications for the purposes of obtaining work. However, I could not find a job in this field as most employers were looking for someone with experience. Subsequently, I found a job in a [Workplace] and worked there for roughly 4 years. My previous job was as [an Occupation] at a [Workplace]. This was the last job I had before my work rights were taken away from me and since then I have not worked.

    m)   My daughter and I were physically, emotionally, and financially abused by [Mr A], as detailed in my protection visa application and previous statement. We divorced on [Date, Year]. I do not receive any financial support from him.

    n)    I have been receiving treatment from [Ms. B] of [Psychology Clinic] as a result of the trauma that I have suffered from this experience. She diagnosed me with anxiety and Post-Traumatic Stress Disorder (PTSD) in 2021, and this was my first formal diagnosis.

    o)    There is still a lot of stigma surrounding mental illness in Fiji. I will be ostracised and alienated from the community even more if they find out just how much I am struggling. I will not be able to access the medical treatment I need in Fiji and will regress on all the progress I have made with my psychologist over the past year. I am worried that I will begin having nightmares again about all the horrible things my ex-husband Alex used to do to me and my daughter, such as locking us in a room with no food or light for days on end.

    p)    This claim was raised in my initial protection visa application dated 2015, but the delegate did not make any assessment or findings in relation to this claim. No country information was cited regarding this claim, which was surprising to me when I read the decision record, it made me feel like my claims were just disregarded and not taken seriously.

    The applicant cannot return to Fiji

    q)    Both me and my daughter are women at risk as we have no male protection in Fiji (nor in Australia for that matter).

    r)     My father used to provide full financial support for my daughter and I. However, due to surgery complications in 2018 he was taken to an aged care home in Australia ([Name] Aged Care). Ever since then, I have been trying to run the household, however now I am facing a lot of difficulties in doing so, due to the gaps in my employment history. My father's ill health has taken a heavy physical, financial, and emotional toll on myself and my daughter. Not having my father around has caused me to become even more depressed as I have no one to share my feelings with. I visit my father at the aged care facility every couple of months.

    s)     The only immediate family I have in Australia are my brother and sister. My sister would be willing to financially assist us however she is unable to do so as she is an unemployed housewife. Due to the dilapidated nature of my relationship with my brother, he is unwilling to provide us with financial support. We have no extended family in Australia. We also don't have any extended family in Fiji. Further, due to the estranged relationship between myself and my abusive ex-husband, he is unwilling and unable to assist us.

    t)   Receiving support from my late husband's family is out of the question since they have been hostile towards me since I remarried in [Year].

    u)    It is not feasible for us to relocate to another part of Fiji since it is a small island and the harm will not be localised to a particular area.

    v)     Therefore, if we are forced to return to Fiji, we will be very vulnerable and at risk of persecution. Not only will we be immediately homeless, but we may be subject to adverse treatment, persecution, harm, and even rape. We have no one to turn to in Fiji.

    w)    I am particularly concerned about my daughter as she has called Australia her home for over a decade and has not returned to Fiji since 2010 when she was [Age] years of age. She doesn't recall anything about Fiji and considers Australia her home. She will find it very difficult to adjust to the education and employment system in Fiji, as she has spent the majority of her formative years here in Australia.

    x)     In respect of the applicant’s daughter, the applicant states she fears that they will return to their previous lives of constant harassment and threats if returned to Fiji. Her daughter is now [Age] years of age and has begun to improve psychologically and emotionally as a result of her schooling. Her daughter has made friends and is trying to move past her childhood experiences. Her goal in life is to give her daughter a more promising future. If they were to return, her daughter’s life will be ruined, and she cannot see her daughter suffering or being even remotely subjected to any more ill treatment or harassment.

    Inability to seek protection in Fiji

    y)     We are unable to seek protection in Fiji as the authorities are corrupt, underfunded, and do not take any claims from women of my background seriously.

    z)     More particularly, whilst I am from Lautoka, the second largest city in Fiji, I am from a very rural village, Saweni, where there are more barriers to effective state protection, and there is more stigma in the community.

    Why she did not put forward protection claims at an earlier time.

    aa)  Firstly, the [years] following my husband's death, from [Year] - [Year], I was grieving and was struggling a lot to cope and process the fact that I was a widow at a relatively young age of [Age] years old.

    bb)  Secondly, following my marriage with [Mr B] in [Year], the relationship quickly spiralled into one of abuse, and he divorced me [Number] years after, in 2013. He was the one who applied for the divorce (as a sole application), it was not a joint application as it was very difficult for me to accept that I would once again have another 'failed marriage'. I believe I was in denial of the trauma that I suffered, which was a lot for me to process. For the duration of my marriage, I was being falsely imprisoned and starved, as explained to the Delegate.

    cc)  I disagree that I could have brought my protection application at an earlier date since I was not even allowed to leave my room, let alone go about and seek legal advice and make arrangements to apply for protection. It is simply unreasonable, and I felt like the delegate was ignorant to my experiences as a victim-survivor of family violence.

1. It is submitted that the second named applicant is a dependent of the applicant and a member of the same family unit as the applicant. The second named applicant provided a statutory declaration to the Tribunal dated 2 February 2022 that she had prepared for an application to remove condition 8101 ‘no work’ from her bridging visa E.[4] In this declaration the second named applicant states that she was born in [City], Fiji on [Date] and she is currently [Age] years old. She states she completed a Bachelor of [Subject] from [University] [in] December 2021. In her statement she provides information supporting her mother’s claims to lack financial support. She also mentions that her mother, the applicant, suffers from type 2 diabetes and high blood pressure. She states that she is attempting to repay her cousin, who lent her money for her tertiary tuition fees; a portion of the fees was covered by a scholarship. She repeats claims made in her mother’s application and discusses her career aspirations as [an Occupation] and in the [work] sector.

   [4] AAT 1712108, Doc Id, 10258263, 23 September 2022.

2. The following documents were also provided:

   a)Notification of grant of a bridging visa E dated 23 February 2022.

   b)A medical certificate dated 27 September 2021 from [Dr C], [Medical Centre], certifying that the applicant is suffering from diabetes, high blood pressure and anxiety and depression. [Dr C] states that the applicant is suffering from anxiety and depression as a result of abuse at the hands of her ex-husband, her father’s sickness and delay in resolution of her visa application.

   c)A letter of support for the applicant’s application for permission to work dated 4 October 2021 from Psychologist [Ms B], [Psychology clinic], advising that the applicant was experiencing significant distress and impairment in life tasks as a result of symptoms consistent with the criteria of Post Traumatic Stress Disorder (PTSD), depression and anxiety, which have been exacerbated by the impact of domestic violence, managing her father’s illness, prolonged uncertainty, and specifically a lack of safety and financial stability, and delay in resolving her visa status.

   d)Psychologist, [Ms B] has also provided a Confidential Treatment Report for the applicant derived from six sessions of therapy from July 2021 to 5 September 2022, indicating that the applicant presented as having significant depression (extremely severe), anxiety (severe) and stress (mild) apparently triggered by past psychological disturbance. The report includes the following.

   ·     The applicant’s symptoms appear to be consistent with the criteria for Adjustment Disorder (F309.28) with mixed anxiety and depressed mood. Her symptoms reportedly occurred within the first three months of the divorce and change in living arrangements, and caused marked distress and significant functional impacts. However, the symptoms are better accounted for by trauma and depression.

   ·     Additionally, her symptoms appear to be consistent with Generalised Anxiety Disorder 300.02 (F41.1). The applicant is reportedly experiencing recurrent worries and anxiety, difficultly managing the worry, restlessness, fear, fatigue, sleep disturbance, and psycho-somatic symptoms of rapid heartbeat, difficulty breathing, and feeling shaky and fidgety. Although similar to the symptoms of PTSD, the anxiety symptoms appear to occur as the result of the traumatic events. Hence, the symptoms are better accounted for by PTSD. Therefore, adjustment disorder and generalised anxiety disorder are considered as a differential diagnosis.

   ·     [Ms B] states that potential barriers to therapy include but are not limited to: (1) restricted access to mental health services; (2) inadequate therapy session impacting therapeutic progress or completion; (3) therapy interfering behaviours (e.g., non-compliance due to low mood or increased anxiety); (4) cognitive impairment affecting ability to engage in activities including therapeutic exercises that require attentional and thinking skills; (5) unresolved emotional distress; and (6) brevity of skills building.

   e)A letter from [Mr E], on behalf of his Mataqali (the landowners’ family group) of [Location], the applicant’s landlords in Fiji, dated 28 July 2014, stating that the head lease expired in 2010 and the land has been reserved for their own use.

   f)Two submissions in respect of the applicant’s work rights applications.

3. In the accompanying legal submission, it is put that the applicant has a real chance of persecution from her late husband’s family, her landlord, and the broader Fijian conservative community on the basis of her membership of the social groups of elderly widows/single mothers without male protection, victim-survivors of family violence, individuals struggling with mental illness, as well as on the basis of her race as Indo-Fijian.

4. It is also submitted that the applicant is currently [Age] years old, has no educational qualifications nor employment history in Fiji and will therefore struggle to obtain employment, especially in light of Fiji’s current economic crisis, following the decline in tourism post-coronavirus. It is argued that her economic circumstances do not permit her relocation; she will not be able to afford accommodation on her own due to her landlord taking back her house, nor afford to survive with no form of income. It is submitted that the applicant’s inability to relocate is further exacerbated by the lack of social support from her immediate and extended family members, effectively rendering her unable to seek protection from them in her home country.

   Evidence of the applicant at hearing

5. Noting mental health concerns raised in the medical and psychologist reports before the Tribunal, the Tribunal discussed with the applicant her ability to give evidence and present arguments at hearing. She indicated that she felt able to do so. She stated that she is taking melatonin to assist her sleeping but that she did not take anything else related to her mental health or that might impair her cognitive ability. The Tribunal encouraged her to indicate if she needed a break. The applicant provided generally clear evidence but when asked to clarify certain claims she became highly agitated, weeping and evidently in a distressed and sometimes dissociative state, such that her responses were limited. The hearing was adjourned on two occasions to enable the applicant to compose herself.

6. The applicant stated that she and her daughter are Indo-Fijian, born in [City] and growing up there. Both applicants identify as Hindu. She said that her mother died after a long illness, so she looked after her father. The applicant stated that her parents had siblings, but they are now overseas or have passed away and she is not in contact with them or with cousins. The applicant has two siblings, both in Australia. She is in contact with her sister but estranged from her brother.

7. The applicant confirmed that she married in [City] in [Year], and lived in [City] with her husband, [an Occupation]. When he died suddenly in a car accident in [Year], she remained in the house they leased in [City], supported financially by her father who by then lived in Australia on a pension.

8. The applicant’s husband had [siblings] in [City]. She had a connection with them when her husband was alive, but this connection was lost after he died. In the period after her husband died, his siblings visited, but they did not provide her with any support.

9. Describing the area of their residence, she told the Tribunal she lived in the rural village of [Village], about [Number] kilometres from [City].

10. The applicant explained that she and her daughter came to Australia for the first time in [Year] because her family encouraged her to visit, to give her a change of scene and to help her refresh after the death of her husband. She met “[Mr A]”, who was single and interested in marriage and her family encouraged this as they were keen to see that she was looked after. They married at her uncle’s place in Fiji in [Year] with family members from her side in attendance.

11. After her husband died, she and her daughter were harassed and threatened by neighbours, who threw stones at the roof at night and tried to enter the property. She speculated that they wanted to scare her into moving from the land because they considered it to be their property. She stated that she did not go to the police because she believed they would not help her because they don’t care, and they are they are corrupt. 

12. The applicant told the Tribunal that her first husband’s family were not happy that she remarried. She stated that in Indian culture it is disrespectful to the late husband for women to marry again, and they cut ties with her, refusing to speak with her or assist her.

13. The applicant stated that in Australia her relationship with her second husband, which started well, broke down following disagreements about money. She claimed he abused her and her daughter by not permitting them to leave the house and sometimes keeping her, and her daughter, locked in their room at home. Becoming very agitated and distressed, the applicant stated that after one year he told them to go, and they had to leave. They lived with her father. She did not talk with anyone, such as the police or a doctor, about her circumstances, including her experiences of abuse, and no-one tried to help her.

14. The applicant worked as [an Occupation] in a [Workplace] for four years in a period while she had permission to work, supporting herself and her daughter. However, she said she has not been able to work again since permission to work was restored in 2021, because she is too unwell. The applicant’s father has suffered from [cancer] and following surgery has also become quite unwell. He is now cared for in a nursing home near [Suburb] and the applicant visits every couple of months. She has no savings or means of support.

15. The applicant stated she has not been to Fiji for a long time (almost 12 years) so she doesn’t know what will happen to her.  She has no family members and is not in touch with any of her former friends or anyone else in Fiji. She fears being the victim of violence as a woman despised as being single, widowed and divorced, without family, male protection or support, and homeless, and suffering from mental health conditions.

16. Regarding her mental health, the applicant told the Tribunal that there are often times when she can’t think properly and is shaking. She stated that counselling has been helpful. She fears she will not be able to access the medical treatment she needs in Fiji and that her recovery from the trauma of her abuse will reverse.

    The evidence of the second named applicant

17. The second named applicant, now [Age], also gave evidence at the hearing. She described the difficulties she faced as a child growing up without her father, and later coping with life with an abusive man and his son and subsequent financial and visa uncertainties. She described excelling at school and being accepted into a [Course] at [University] where her study has been financially supported by her [cousin], and by a scholarship. She stated that she and her mother live together, and her mother supports her and looks after the household but she is very concerned about her mother who is not doing well. Financially they rely heavily on her mother’s father for support, but that is increasingly difficult as he is now very unwell. The second named applicant gave evidence that since she was granted permission to work in April 2022, she has not been able to get work she wants because she does not have a substantive visa, but she tries to contribute to the family finances with some casual work. 

    Evidence post-hearing

18. On 30 September 2022, the applicant provided the Tribunal with details of her medication: Empagliflozin - 12.5mg/ Metformin Hydrochloride - 1000mg, to lower blood sugar levels in patients with type 2 diabetes mellitus; Telmisartan - 80mg/ Amlodipine - 10mg, to lower blood pressure: and Melatonin MR to improve sleep quality.

    Independent information

19. The DFAT Country Information report on Fiji dated 20 May 2022 provides the following economic overview of Fiji:[5]

    2.7 The World Bank defines Fiji as an upper-middle income country. Fiji is one of the largest economies in the Pacific region, but about a quarter of the size of the next largest, Papua New Guinea. Its per capita gross domestic product (GDP) is much higher than most Pacific neighbours’.

    2.8 Tourism accounted for about 40 per cent of the pre-COVID-19 economy; the pandemic caused significant disruption. According to the Asian Development Bank, GDP growth was negative 15.7 per cent in 2020. Remittances from the diaspora, another important source of income, were also badly affected by the pandemic. Agricultural production, especially of fruits and vegetables, sugar and kava, is important to the economy but vulnerable to cyclones.

    2.9 About 30 per cent of the population was living in poverty in 2019, according to World Bank data, but estimates of poverty rates vary and the full impact of the COVID-19 pandemic is not known. According to the International Labour Organization (ILO), subsistence farming and kin-based wealth redistribution leads to a lower rate of extreme poverty than might otherwise be expected.

    [5] DFAT Country Information Report Fiji, 20 May 2022.

20. In regard to healthcare in Fiji, DFAT reports the following:[6]

    Health

    2.11 Healthcare is generally available for those who need it. Quality is better in urban areas and may be basic in rural areas, especially the outer islands. Smaller communities might have access to basic healthcare facilities known as ‘nursing stations’ or ‘health centres’, the latter staffed by a doctor. Specialist healthcare is generally available, including cardiology, oncology, radiology and maternal health, particularly in large hospitals. Medication availability varies and the range of medications available in Fiji is less than in Australia. Equipment or specialist treatment facilities, for example for chemotherapy, are sometimes lacking. Some facilities are old and not well-maintained, and staff-to-patient ratios can be poor.

    2.12 Healthcare is free to the patient, but an increasing number of people are taking out private health insurance that allows them access to elective surgeries and cosmetic surgery available outside the public system or overseas.

    Mental health

    2.13 The law provides for public mental healthcare but, in practice, it may not be available. Some support is available from nursing stations, health centres, general practitioners and hospitals. A public psychiatric hospital, St Giles, is located in Suva. Sources told DFAT there was an inadequate number of mental health professionals to meet demand. Telephone counselling and mental health CSOs provide services, and online resources from Australia and New Zealand might be used by Fijians. Drug and alcohol services are available at St Giles. The US Department of State 2021 Human Rights Report describes St Giles as ‘underfunded’. Sources told DFAT that facilities and treatment are basic and medication might be unavailable.

    2.14 Like many countries, including Australia, there can be a societal stigma against mental health conditions in Fiji. This may limit support options from family. These attitudes are less common among the wealthy and the more highly educated. In spite of these challenges, people with intellectual and mental disabilities are more likely to be cared for at home than in a medical facility.

    2.15 Other services for mental health patients might be available. There is an increasing number of counsellors (who are not psychologists or psychiatrists) and some non-government organisations provide counselling services. In practice, counselling services are not available in more remote areas and there is a lack of mental health services generally.

    Violence against women in Fiji

    [6] Ibid.

21. Relevant to consideration of the circumstances of women in Fiji, the DFAT report observes the following:[7]

    Women

    3.49 Fiji is a traditionally male-dominated society and traditional gender roles are well-entrenched. According to World Bank figures, the participation rate for women is the lowest in the Pacific region at 35 per cent of the total labour force (by contrast, Australia’s rate is about 46 per cent of the total labour force). These figures are from 2019 and the impacts of the pandemic on the largely feminised tourism sector may have made the situation worse.

    3.50 The 2021 US Department of State Human Rights Report notes that there are no laws that prevent women from participation in political processes, but that traditional gender roles restrict that participation in practice for iTaukei (meaning “indigenous owners” in Fijian/indigenous Fijians) women. Similarly, iTaukei women are entitled to inherit land equally to men, but in practice this does not occur and many women work on land that is owned by their male relatives.

    3.51 A study by the Fiji Women’s Crisis Centre (FWCC) from 2013 (the most recent study by the FWCC) found 64 per cent of women who had ever been in a relationship had experienced domestic violence. In October 2020 the then Minister for Women, Children and Poverty Alleviation, Mereseini Vuniwaqa, said that 72 per cent of women in Fiji might experience violence in their lifetime. Vuniwaqa said that violence in Fiji affected women from all socio-economic backgrounds. She also noted that in 2020 (to October) police had recorded 1,545 cases of violence against women. Elsewhere, Vuniwaqa has acknowledged that Fiji’s rate of violence against women and girls is among the highest in the world. The media reported 10 deaths from domestic violence in 2020.

    [7] DFAT Country Information Report Fiji, 20 May 2022.

22. The Tribunal notes that much of the reporting regarding gender-based violence relates to violence in domestic settings, but observes that the country information also indicates that this is in the context of a high level of gender-based violence generally. In its most recent report, DFAT advises the following: 

    3.52 Reported cases of sexual assault are also high. According to media reports, 531 cases of rape were recorded against 240 victims, of whom 165 were minors, in 2020. The Fiji Women’s Rights Movement analysed rape cases in the High Court in 2020 and found a male perpetrator in all 81 cases and an average age of victims of 14 years. Spousal rape is illegal under Fijian law. In April 2021, a man who sexually assaulted his wife when she ‘refused intimacy’ was sentenced to a 6-year and 10-month prison term by the High Court in Lautoka.

23. A 2016 Australian National University (ANU) publication suggests that gender violence appears to be escalating in Fiji and the current gap between rhetorical commitments to the crisis made by government and NGOs has not resulted in a decline in incidence:[8]  The paper states:

    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.[9]

    [8] 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.

    [9] ‘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.

1. The US DOS Country Report on Human Rights Practices for 2021 noted that rape (including spousal rape), domestic abuse, incest and sexual harassment were significant problems.[10] It was reported that in the three-month period January to March, the Fiji Women’s Crisis Center recorded 486 domestic violence cases, an increase over previous years. This was attributed to a new national toll-free help line by which victims found it easier to report abuse and to COVID-19 movement restrictions that confined victims with their abusers. The centre reported that one woman had died in a domestic violence incident in 2021 as of November.[11]

   [10] US DOS Country Reports on Human Rights Practices, Fiji 2021.

   [11] Ibid.

2. With regard to the adequacy of state protection for single women without male protection, reports indicate that women in Fiji have access to institutions and services related to security, protection and justice, but women, particularly diverse women, face barriers to access.[12]

   [12] ‘Gender Training with Frontline Officers to Help Improve Women’s Access to Justice’, Prasad K, p.5, in ‘Balance’, Fiji Women’s Rights Movement, December 2017 [document created 8/01/2018], CIS7B839419239; ‘Introduction: Gender Violence and Human Rights in the Western Pacific’, Biersack A & Macintyre M, pp.1-45 at p.29, in ‘Gender Violence & Human Rights: Seeking Justice in Fiji, Papua New Guinea & Vanuatu’, Biersack A, Jolly M & Macintyre M (eds), Australian National University Press, 2016 [document created 14/12/2016], CIS38A80125089. 

3. The DFAT report references the US DOS Overseas Security Advisory Service 2020 Crime and Safety Report assessment that the Fiji Police Force is generally well resourced and professional, while noting that police may not be based in vehicles and may not arrive in time to disrupt crimes in progress, but assessing that ‘victims of crime can expect fair treatment’[13]:

   5.9 Policing in outer islands and more remote places is more difficult because of the greater influence that the chief-based hierarchy has in the outer regions. Police are generally not deployed to their home communities to avoid conflict with traditional hierarchies.

   5.10 The Fiji Police Force overall has the capacity to protect individuals from societal harassment, discrimination, and violence, and police are usually effective in carrying out their role in day-to-day crime detection, investigation and prevention. 

   [13] DFAT Country Information Report Fiji, 20 May 2022, [5.6].

4. However, in regard to the protection of women, DFAT also states the following:

   3.53 Police protection is available but not consistently. Some police stations do not have the equipment or transport to deal effectively with cases of gender-based violence (see Police). Women who seek help from advocates (for example, the FWCC Centre runs a hotline) may receive more assistance.

   3.54 A magistrate can issue restraining orders. These orders operate similarly to apprehended violence orders in Australia, with conditions that aim to protect a person from assault, threats, intimidation, ‘abusive, provocative or offensive’ behaviour or the procurement of those offences by another person. These orders are enforced by police and provide some protection.

   3.55 An audit by the Fiji Auditor General in 2019 found that there is ‘inconsistency’ in the application of legislation that prohibits violence against women. It notes ‘pressure on women to reconcile with their husbands/partners’ by police or society, as well as a lack of knowledge among women about their rights. Fiji Police have a ‘no drop’ policy for domestic violence. This means that cases cannot be dropped by police nor be withdrawn by victims; they must be investigated. This is to prevent victims from being pressured by family to drop the cases. In practice, the Auditor General found (and in-country sources confirmed to DFAT) that the policy was not implemented in all cases and that police did sometimes drop domestic violence cases or were unhelpful or even hostile to victims.

   3.56 NGOs provide some services to women and girls who are subject to violence. For example, the FWCC offers a 24-hour telephone crisis counselling service that can coordinate emergency assistance throughout the country. Lawyers and counsellors might also be available to victims. Women’s domestic violence services reported an uptick in demand during the COVID-19 pandemic. Cyclones, which cause people to shelter together in their homes, have had a similar effect of increased violence.

   3.57 Women experiencing violence in the outer islands or rural areas may have more difficulty escaping violence. Shelters are unlikely to exist in remote areas and a family member may be relied upon for protection. Conversely, family ties and loyalties and traditional hierarchies can protect perpetrators. Relocation is not necessarily helpful; Fiji is relatively small and sometimes people can be tracked down through kinship networks. DFAT assesses that women who experience domestic violence are, by definition, at a high risk of violence, and a moderate risk of discrimination in the form of lack of access to protection.

5. In considering the applicant’s claims to face discrimination in Fiji as Indo-Fijian because she cannot own property, the Tribunal has referred to the independent information of the DFAT report, which states the following:

   3.5 Race is an important factor in Fijian society, but ongoing government integration efforts are having some effect. Some low-level social discrimination continues, with the use of racist stereotypes common among both groups. The Government has taken significant steps to de-segregate the community in day-to-day life. Schools were required to stop calling themselves ‘Indian’ or ‘Fijian’, and the 2013 Constitution requires Hindi to be taught in primary schools. Diwali and the Prophet Mohammed’s Birthday are both national public holidays alongside Christian holidays like Christmas and Easter. The Public Order Act was amended in 2012 to prohibit incitement of racial violence, and the 2013 Constitution prohibits discrimination based on race or ethnicity and applies to all ‘Fijians’ regardless of race.

   3.6 Most Indo-Fijians are descendants from indentured sugar workers (see Recent history) but there were also free migrants who came later. While most trace their origins to northern India, a distinct Indo-Fijian culture has developed over generations that has continued to evolve through more recent waves of immigration and emigration. Indo-Fijians are mostly Hindus, but Sikh, Christian and Muslim communities also exist. They are diverse in their economic activity and social interests.

   3.7 DFAT assesses that Indo-Fijians face a low level of societal discrimination. This affects most Fijians as some people of each major ethnic group perpetuate racist stereotypes against the other. As religion tends to be divided along ethnic lines, see also Hindus and Muslims. Because of traditional land ownership, most Indo-Fijians are unable to buy land outright, but rather lease it. Otherwise, DFAT is not aware of evidence of official discrimination against Indo-Fijians based on race/nationality.

   Land rights and property law

   2.24 Land rights are controversial in Fiji as they are in Australia. The colonial government allocated ancestral land to traditional owners who now own the vast majority of land in Fiji. Indo-Fijian indentured workers were not given access to land by the colonial government and iTaukei were prevented from working on the sugar cane plantations.

   2.25 About 90 per cent of land is owned by traditional owners, with 6 per cent government-owned and 3 per cent freehold land. iTaukei owners often lease land to others through a government-coordinated leasing system. There are restrictions on the use of land; for example, agricultural land must be used for agricultural purposes, preventing land banking or alternative uses of the land. Leases are for a period of at least two years but land is usually leased for 30 years. Residential leases are longer and leases can be bought and sold.

   2.26 Both iTaukei and Indo-Fijians lease land from traditional owners but it cannot be bought or sold, only leased. A tenant can be removed from land if it is not maintained or used for its intended purposes (for example, if an agricultural lease does not commence farming activity within a certain time). This involves a breach of lease and a court process that can lead to eviction.

   2.27 Informal land use (‘squatting’) is common. Most squatting is done with the permission of the land owner; for example, extended family using the land without a formal lease agreement. Informal land users have few legal rights and may be asked to leave at any time. Internal migration from rural areas to cities has increased the number and size of informal settlements in recent years.

6. Independent DFAT information indicates that social welfare of a limited nature is available in Fiji:

   Employment and welfare

   2.18 Most Fijians work in the informal sector, especially in the tourism, agriculture and aquaculture industries. According to estimates by the ILO, about two thirds of Fijian workers are not employed formally; this number might be rising due to reduced hours and job losses following COVID-19 disruption.

   2.19 The minimum wage is currently FJD2.68 (about AUD1.75) per hour and employers are required to display the minimum wage in workplaces. There are ongoing discussions about raising the minimum wage that have not been implemented at the time of writing. According to the 2021 US Department of State Human Rights Report for Fiji, the minimum wage did not provide a ‘decent standard of living for a worker and family’, and inspectors responsible for enforcement did not have capacity to ensure that workers were paid correctly. In-country sources told DFAT underpayment occurs and legal remedies are not always effective.

   2.20 The tourism sector was significantly disrupted by the COVID-19 pandemic. Some staff were retained during the pandemic, but many lost their jobs or returned to home regions. About 60 per cent of workers in the sector (pre-pandemic) were women. Relocation to work in tourist areas is common. The sector re-opened to international visitors in December 2021.

   2.21 Fiji’s labour force participation rate in 2016 (the most recently available statistics) was about 58 per cent. More than 70 per cent of men and about 40 per cent of women participate in the labour force. The official unemployment rate was about 4.8 per cent in 2020. Youth unemployment is much higher: 14.8 per cent in 2019, according to the Asian Development Bank and the ILO. These figures do not take COVID-19 disruption into account; the true rates of unemployment and youth unemployment are probably higher.

   2.22 The pension system consists primarily of the Fiji National Provident Fund (FNPF), which covers only formal sector workers. Sources told DFAT that some people in the informal sector do not have bank accounts and thus would not be able to participate in the FNPF. Other pensions for people with disability, children and the very poor also exist, as do bus fare subsidies and food vouchers distributed by the Ministry of Women, Children and Poverty Alleviation. The amounts paid under various schemes (not including food vouchers and bus subsidies) is typically about FJD35-90 (AUD20-60) per month.

   2.23 iTaukei generally have large kinship networks with extended family often providing support when a family member is in need. It is uncommon for elderly people to live alone; they more commonly live with family who will support them. Even in times of high unemployment, such as during the COVID-19 pandemic, many iTaukei are able to move back to traditional villages and participate in subsistence living communities. These family resources may have been stretched during the COVID-19 pandemic, given the large scale of economic disruption with more family members seeking support. While family and kinship ties are less pronounced in Indo-Fijian families (iTaukei families have formed these networks over a much longer time) they still exist; extended family groups, and associated welfare support, may also be present among Indo-Fijian families. Remittances are an important part of the Fijian economy and may have been a source of support for some Indo-Fijians following recent high levels of outward migration.[14]

   [14] DFAT Country Information Report Fiji, 20 May 2022.

   Findings and reasons

   Nationality

7. On the basis of her evidence to the Tribunal and the evidence of her passport provided with the application, the Tribunal accepts the applicant was born in and is a national of the Republic of Fiji and considers that Fiji is her country of nationality and the receiving country for the purpose of assessing her claims against the refugee and complementary protection criteria. On the same basis, the Tribunal accepts the second named applicant was born in and is a national of the Republic of Fiji and considers that Fiji is her country of nationality and the receiving country for the purpose of assessing her claims against the refugee and complementary protection criteria.

   Credibility

8. When assessing claims made by an applicant, the Tribunal needs to make findings of fact in relation to those claims.  This usually involves an assessment of credibility of the applicant.  When doing so the Tribunal is mindful of the difficulties faced by refugee applicants, including issues relating to the use of interpreters, nervousness and anxiety in the environment of interviews and hearings, and memory and recollection issues resulting from the lapse of time or other reasons. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims.  The Tribunal is mindful that if it makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true (See MIMA v Rajalingam (1999) 93 FCR 220). However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (see Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348).

9. In assessing the applicants’ claims, the Tribunal has taken into account the information in the Department’s files, including their written claims and statements and oral evidence to the Tribunal and available country information. The Tribunal notes that the applicants were not afforded the opportunity to put their claims in person to the Departmental delegate. The Tribunal, however, had the benefit of observing the applicants at a face-to-face hearing, questioning them about their claims and considering additional supporting evidence.

10. The Tribunal notes that the applicant has been generally consistent in her claims over what is now a long period, and overall, the Tribunal was satisfied as to the credibility of her claims. As noted above, the Tribunal observed that the applicant occasionally became very agitated and apparently incapable of anything other than a limited response, if any response at all. Taking into account the psychologist report provided, the Tribunal assessed that this behaviour generally arose as a symptom of her diagnosed adjustment disorder and generalised anxiety disorder. However, as discussed below, the Tribunal had concerns about some aspects of the applicant’s evidence, concerns which could not be explained with reference to the applicant’s mental health.

11. In respect of the credibility of the applicant’s claims, the Tribunal has considered the Departmental delegate’s view that the credibility of the applicant’s claims was undermined by the period of delay occurring before the applicant lodged her protection visa. The Tribunal has considered the applicant’s lengthy migration history and efforts to remain in Australia, and assesses, given the findings below that the applicant was at first grieving as a widow at a relatively young age ([Age] years old), and later contending with domestic abuse, which limited her access to support, the delay was not reflective of a lack of credibility of her claims. In reaching this conclusion, the Tribunal has given weight to the comments provided by the applicant’s treating doctor that she suffers from diabetes, high blood pressure and anxiety and depression arising from domestic violence at the hands of her ex-husband, factors that caused her to delay in making the protection visa application.[15]

    [15] AAT 1712108, Doc Id. 10258263, 23 September 2022.

12. The second named applicant provided straightforward and direct evidence at hearing, essentially consistent with her mother’s evidence. For these reasons, the Tribunal considered her evidence to be credible.   

    Consideration of the applicant’s claims

13. On the consistent evidence of the applicant, the Tribunal accepts the applicant was born in [City], Fiji on [Date]. The Tribunal accepts the applicant is Fijian Indian and Hindu.

14. On the evidence before it, the Tribunal accepts the applicant left school at [Age] to look after her father when her mother died, and that she married her first husband in [Year] and continued providing support to her father until he migrated to Australia sponsored by her sister in [Year]. The Tribunal accepts the second named applicant was born on [Date ].

15. The Tribunal accepts the applicant was widowed after her husband died in a car accident in [Year]. The Tribunal accepts that this event presented considerable financial and emotional hardship for the applicant and her daughter.

16. The Tribunal accepts that the applicant married her second husband in [Year] in Fiji, and that he remained in Fiji for two weeks before returning to Australia.

17. The Tribunal accepts that in Fiji, the applicants lived in a rented house in a relatively rural area of [Village] outside [City], without any male or family protection.

18. On the consistent evidence of the applicant, the Tribunal accepts that the applicant and her daughter were isolated from family support, given that her father and two siblings were in Australia and that she had no extended family members in Fiji on her mother or father’s side.  As discussed below, the Tribunal also accepts the applicant received no support from her first husband’s family.

19. Based on the consistent evidence of the applicant, the Tribunal accepts that while living alone in the house with her daughter, the applicant experienced intimidation, harassment and verbal abuse from neighbours in the local Fijian community over the period after her first husband’s death until her departure from Fiji. The neighbours threw stones at the house and sought to enter her property. The Tribunal accepts that in these circumstances the applicant feared for her own and her daughter’s safety. The Tribunal accepts she did not seek the assistance of police because she believed they would not assist her.

20. Based on the consistent evidence of the applicant, the Tribunal accepts she married an Australian citizen in Fiji in [Year]. The Tribunal accepts the oral evidence of the applicant and her daughter, and the written statements of the applicant’s doctor and psychologist that after joining her husband in Australia, the applicant was subject to domestic violence (social isolation, physical, financial and verbal abuse). 

21. The Tribunal accepts the applicant was divorced in [Year] and receives no financial support from her ex-husband.

22. On the basis of the applicant’s consistent evidence concerning the circumstances of her two siblings in Australia, the Tribunal also accepts that they are unable or unwilling to assist the applicants financially. The Tribunal also accepts the applicant’s evidence that she has no siblings or extended family in Fiji.

23. The Tribunal accepts the applicant is a single woman, widowed and divorced, with no male or family protection.

    The applicant’s first husband’s family

(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.

…