1712109 (Refugee)

1712109 (Refugee) [2022] AATA 1438 (16 March 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1712109
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Tania Flood
DATE:16 March 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 16 March 2022 at 12:57pm
CATCHWORDS
MIGRATION – protection visa – Fiji – member of a particular social group – bisexual, non-binary demi-woman – abuse and disownment by family, assault by former fiancé, social and community isolation and workplace discrimination – anxiety and depression – long relationship with woman which ended when she returned to home country – now in relationship with heterosexual man pursuing his own migration outcome – consistent claims, evidence, psychological assessment and submissions – country information – inconsistent implementation of anti-discrimination laws, and religious and cultural/social beliefs and behaviours – not reasonable to conceal gender identity or sexual orientation, modify behaviour or relocate – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1), 5J(1), 36(2)(a), (aa), 65
Migration Regulations 1994 (Cth), 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 dependants.
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 15 May 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Fiji, applied for the visa on 18 November 2015. The delegate refused to grant the visa on the basis that there is not a real chance or a real risk the applicant will suffer serious or significant harm on return to Fiji.
The applicant appeared before the Tribunal on 8 March 2022 to give evidence and present arguments.
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 (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.
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 there is a real chance the applicant will suffer serious harm if she returns to Fiji for reason of her race, religion, nationality, membership of a particular social group or political opinion or alternatively 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.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Summary of claims
According to information contained in the application for a Protection visa the applicant is a [Age]-year-old Fijian woman. She was born in Suva, identifies as Fijian and is a Christian. She was engaged [in] February 2014 with an intention to marry [in] October 2015. Her relatives in Fiji include her mother and stepfather, [brothers], [sisters] and her fiancé (male). She listed four different residential addresses in Fiji – 1) 1985 to 2005 in [Location 1]; 2005 to 2012 in [Location 2], 2012 to 2014 at a second address in [Location 2] and 2014 to 2015 in Suva. She completed primary and secondary school and a diploma in [Subject] in Fiji. She held various positions in Fiji including as [Occupation 1]; [Occupation 2] in [Workplaces]; and [Occupation 3].
The applicant arrived in Australia [in] May 2015 holding a Visitor Visa. She lodged an application for a Protection visa on 18 November 2015.
The applicant claims that she left Fiji with the hope of experiencing the beauty and diversity of Australia and to reunite with high school friends. She also wished to escape the trauma she experienced at the hands of her fiancé, family and community as a result of the exposure of her bisexuality.
The applicant claims that if she returns to Fiji she will face cruel and inhuman treatment or degrading treatment or punishment from her fiancé, family and society.
The applicant claims that her fiancé assaulted her when he found out about her sexual preference. Her family agreed with his actions.
The applicant claims her own family will torture her emotionally because of the shame she has brought upon them. She states she will be subjected to gossip, mockery and painful words. She also fears her brothers will physically harm her as they are involved in church activities and are embarrassed about the shame she has brought on the family.
The applicant claims she will also suffer emotional torture from community members. She states that Fijian communities are close minded about bisexuality and homosexuality. She claims she will be ridiculed, mistreated and even threatened and physically harmed by community members.
The applicant claims she did not attempt to seek help from the police when she was beaten by her fiancé out of fear of further abuse and discrimination. She claims that while discrimination on the grounds of sexuality is prohibited and written into workplace policies the reality is different. She has heard stories where the authorities have turned a blind eye to the problems experienced by bisexual and homosexual people and in fact most times the authorities cause more harm. She claims it would heighten her risk of harm to report any ill-treatment.
The applicant claims that if she relocated to another part of Fiji she would face the same treatment once people become aware of her sexuality.
Submitted as evidence of her claims are greeting cards exchanged between the applicant and her partner while they were in Fiji; western union receipts for monies sent and received by the applicant and her partner for financial support.
Also submitted as evidence is a letter from the applicant’s sister dated 27 May 2016. Her sister lists her address in Suva, Fiji and states that the applicant was previously living with another sister and her nuclear family and that sister developed suspicions that the applicant was in a lesbian relationship. Her sister was angry and disappointed and asked the applicant to move out of the house. The applicant’s sister states that in December 2015 her sister’s fiancé [Mr A] called their mother to officially cancel the engagement and plans for the marriage. She states that on another occasion [in] October 2015, when the family were gathered for a meeting, rumours were circulating about her sister’s lesbian affair. During this meeting her brothers and uncles were openly sharing their disgust with the applicant’s lifestyle. They were adamant that they will beat her if she returns to Fiji. The applicant’s sister states that despite her numerous attempts to make her brothers, uncles and other family members understand the applicant’s choice and keep her within the family, the majority prefer not to have anything to do with her and disown her.
Attached to the application are various articles and reports regarding gender discrimination, and the status and treatment of LGBTI persons in Fiji.
On 28 January 2022 the Tribunal received a request for a hearing postponement in order that the applicant could obtain a report from a psychologist and provide more targeted country information and submissions. It is submitted that the applicant’s protection claims are largely based on her sexuality and her previous homosexual relationship with another woman. It is stated that although the applicant is of the belief that she is not heterosexual she is unable to identify with any certainty what exactly her sexuality is as this has been a confusing and emotionally difficult process for her.
Pre-hearing submission
On 1 March 2022 the Tribunal received a written submission made by her representative on her behalf. The submission provides the following:
The applicant was born in Suva, Fiji and lived there until [May] 2015 when she arrived in Australia and has not returned to Fiji since.
In the application form the applicant described her sexual identity as being bisexual. However, given the conservative and deeply Christian culture and environment that the applicant grew up in it is understandable that she was uncertain as to the exact terminology to describe her sexual and gender identity. A recent appointment with a psychologist with experience is sexual and gender identity, revealed that the applicant is a non-binary, demi-woman. In summary this means the applicant does not fully identify as a woman and her sexual preferences are therefore “neither exclusively female nor exclusively male and include both genders”. Non-binary refers to the fact that she identifies fully neither as a male nor female, therefore, her gender and sexual identity does not conform to the binary concepts of gender that is prevalent in Fiji. The applicant is described as belonging to the LGBTIQ community to encompass both her gender identity and her sexual preferences, both of which form her protection claims, but are separate components of her identity.
It has also been assessed that the applicant suffers from “clinically significant depression and anxiety symptoms” which resulted from the treatment she received at the hands of her community and family due to her sexual identity.
The applicant’s family in Fiji consists of her estranged mother and her siblings, most of whom are deeply religious Christians and adhere to a strict code of morals and a conservative outlook on life and society in general. The applicant’s elder sister is the only family member who accepts her gender identity and sexuality.
The applicant has been in significant relationships with both men and women and her relationship history is set out in the submission. From November 2012 to March 2020 the applicant was in a romantic and sexual relationship with [Ms B], a woman the applicant used to work with and with whom she cohabited in Australia from 2015 until 2021 when [Ms B] felt that she needed to return to Fiji for her children and grandchildren following her legal husband’s sudden death. In 2014, while the applicant remained in a relationship with [Ms B], she became engaged to [Mr A], whom she had known since her school days. This relationship spanned from January 2014 to June 2015 when it ended as a result of him learning of the applicant’s relationship with [Ms B]. In January 2021 the applicant entered into a romantic relationship with [Mr C] who she remains in a relationship with to date.
Despite her current relationship with a heterosexual man, the applicant continues to identify as a non-binary, demi-woman. Furthermore, her family and friends and community in Fiji know her as a member of the LGBTIQ community and as a person who had previously been in a sexual and romantic relationship with a woman.
It is submitted that although in Fiji the protection of LGBTIQ individuals has been instilled into the legal system in the form of anti-discrimination laws, the lived experience of those whom the law is designed to protect is not in line with the goals of the legislation. Reports have found that members of the LGBTIQ community are facing increased stigma from sectors of the Christian community during the COVID-19 pandemic. It is reported that LGBTIQ people were publicly shamed and blamed for causing the pandemic and have similarly been blamed for natural disasters by incurring the wrath of God. More than half of the LGBTIQ community have been verbally abused for their sexual orientation.
The applicant is fearful that if she were to return to Fiji she would be subject to the social isolation, and physical and verbal abuse that many other members of the Fijian LGBTIQ community is subject to. This fear is substantiated by the lived experiences of the applicant with her friends and family. For instance, she experienced social isolation and rejection by her friends and family after they discovered her sexual orientation. This will worsen if she returns to Fiji and expose her to psychological harm in the opinion of her psychologist. She will also be isolated and alienated from her faith.
In the past the applicant has been subject to physical and verbal harassment and abuse as result of her relationship with a woman. This included being assaulted by her former fiancé; verbal abuse from her sister and being kicked out of her sister’s house; being mocked and ridiculed by friends and told she was disgusting and her brothers and uncles have previously expressed a desire to physically harm her.
In addition, the applicant has previously been passed over for a promotion due to rumours circulating in her workplace that she was in a same-sex relationship. She had been informed by her sectional Director that her lifestyle was not ‘suitable’ for the promoted position. The applicant was also previously kicked out of accommodation with a friend when her relationship with [Ms B] was discovered. She did not have stable accommodation after this and was forced to couch surf and live in hostels until she arrived in Australia. Access to housing is an issue for many members of the LGBTIQ community in Fiji especially if they face rejection from their family members.
Given her past experiences there is a real possibility the applicant will need to modify her behaviour to conceal her non-binary gender identity and her sexual and romantic attraction to women. This will have a severe impact on her mental health. The psychological report included in the submission indicates that she has ‘clinically significant’ depression and anxiety symptoms and currently suffers from a Mixed Mood Disorder of exogenous depression and anxiety, meaning that it is caused by situational factors (as opposed to biological/genetic factors) including the conflict between her sexual identity and strong Christian beliefs and the previous trauma she has experienced due to her sexual and gender identity.
The applicant is fearful that if she reported incidents of harm to the authorities she would experience further abuse and discrimination.
Supporting documentation attached to the submission includes:
-    Psychological report [dated] 19 February 2022.
-    Cards and correspondence between the applicant and her former partner, [Ms B].
-    Evidence of money transfers between the applicant and her former partner, [Ms B].
-    Letter of support from [a] Fijian gay person dated 24/2/22.
-    Letter of support from the applicant’s sister dated 27 May 2016.
-    Letter of support from [an official] of [a Fijian LGBTIQ organisation].
-    Letter from [a named person] for the [Employer] in Suva Fiji where the applicant and her former partner, [Ms B], worked until 2013.
-    Various photographs of the applicant and her former partner, [Ms B].
-    Tenancy Agreement in the names of the applicant and [Ms B].
Country Information
LGBTI (Lesbian, Gay, Bisexual, Transgender/Transsexual and Intersexual) People
Same-sex sexual activity was decriminalised in Fiji in 2010 and the Constitution bans discrimination based on sexual orientation and gender identity or expression.[1] Same-sex marriage is not legal[2] and in January 2016 Prime Minister Bainimarama voiced strong opposition to its introduction.[3] Following these remarks, the Police Commissioner assured the LGBTI community that police would protect it in line with the bill of rights in the Constitution.[4] In May 2016 the Police Commissioner offered to meet the LGBTI community, a contrast to his predecessors.[5] After transgender people raised concerns of ill-treatment at police stations, in November 2018 the Acting Police Commissioner said police would liaise with them and start training police on how to treat LGBTI people.[6] Employment relations law also prohibits discrimination in employment based on sexual orientation. There are, however, no laws specifically prohibiting discrimination against LGBTI persons in other areas. The HRACD reported complaints of discrimination against LGBTI persons in such as areas as employment, housing, or access to health care.[7] In 2017, DFAT reported that LGBTI persons faced a low level of official discrimination.[8] An August 2018 two day national LGBTI consultation with 70 participants formed a working group to develop, in collaboration with the HRADC, a national plan of action to address discrimination against, including by law enforcement agencies and health services and at workplaces, vilification of and harassment of LGBTI people.[9]
[1] ‘Constitution of the Republic of Fiji (Promulgation) Decree 2013 (Decree No 24 of 2013), Government of Fiji Gazette, Government of Fiji, 6 September 2013
[2] ‘2013 Human Rights and Democracy Report – Fiji’, UK Foreign and Commonwealth Office, 10 April 2014
[3] ‘Fiji PMs gay marriage comments shock’, Radio New Zealand International, 6 January 2016
[4] ‘Fiji – Country Report on Human Rights Practices 2016’, US Department of State, 3 March 2017
[5] ‘Fiji police reaches out to the LGBTI community’, ABC News, 10 May 2016
[6] ‘Tudravu reassures LGBTIQ community police will do what needs to be done if member turns up at a police station’, Danford I, Fijivillage, 20 November 2019
[7] ‘Country Reports on Human Rights Practices for 2018 – Fiji’, US Department of State, Bureau of Democracy, Human Rights and Labor, 13 March 2019
[8] ‘DFAT Country Information Report Fiji’, 27 September 2017
[9] ‘National consultation highlights LGBTI challenges’, Nacei, L, The Fiji Times, 7 August 2018

Due to conservative social mores, discrimination and violence against member of the LGBTI community persist.[10] The Drodrolagi Movement which represents Fiji’s LGBTI community, has reported that LGBTI people face issues in securing employment, forcing them to work in the informal sectors.[11] While there is some societal discrimination against persons based on sexual orientation and gender identity, including bullying of LGBTI students in schools, there is no systemic discrimination. In addition, although same-sex sexual conduct is objectionable to some with deeply held religious beliefs, general attitudes toward LGBTI people become more accepting.[12] This level of acceptance, is, however, still limited.[13] HRADC recently reported complaints of homophobic posts, often in vernacular, on social media platform TikTok, some calling for ‘violent sexual attacks on LGBTI individuals. It discussed the issue with Fiji Police Force’s cybercrime and the Online Safety Commission.[14]
[10] ‘Freedom in the World 2016 – Fiji’ Freedom House, 23 August 2016
[11] ‘Discrimination rife’, Devi, S, Fiji Times, 8 December 2014
[12] ‘Fiji – Country Report on Human Rights Practices 2016’, US Department of State, 3 March 2017
[13] ‘DFAT Country Information Report Fiji’, 27 September 2017
[14] ‘Commission Concern Over TikTok Videos’, Human Rights and Anti-Discrimination Commission, Fiji Sun, 14 December 2020
Societal belief in the efficacy of ‘corrective rape’ of lesbians remains prevalent and lesbians in particular are poorly understood in Fiji. Gay men and lesbians often do not come out to their families and are often not accepted when they do, particularly when co-habiting. They may find more acceptance in Suva, particularly the wealthier areas. Overall, DFAT assesses that LGBTI Fijians are at a low risk of official discrimination and a moderate risk of societal discrimination. [15]
[15] ‘DFAT Country Information Report Fiji’, 27 September 2017
Hate speech from politicians and religious leaders remains prominent. However, the LGBTIQ community is experiencing greater visibility and acceptance, particularly in urban centres.[16]
[16] >
Fiji has laws against violence in place to protect its citizens, including women, but access to justice is an issue for diverse (LGBTIQ, de facto, disabled, rural and poor) women.[17]
[17] ‘Gender Training with Frontline Officers to Help Improve Women’s Access to Justice’, Prasad, K, in ‘Balance’, Fiji Women’s Rights Movement, December 2017
A report provided to the Tribunal in response to a request made relating to the situation for lesbians in Fiji by Dr Nicole George, Associate Lecturer and Postdoctoral Fellow School of Political Science and International Studies, University of Queensland relevantly includes the following:
….. First, the presence of a highly conservative ethnonationalist lobby that dismisses discussions about same-sex sexuality, as completely foreign to local culture; and second, the presence of a highly conservative Methodist church which has traditionally enjoyed a strong degree of national political influence and which describes homosexuality as against God and the Church. More extreme religious actors within the evangelist churches (growing in number and support in the country) have also adopted this line, arguing that tolerance of homosexuality will invite a curse to be brought upon Fiji (see my 2008 article for many references to this type of extremism). Newspaper reporting in Fiji on issues to do with sexuality is often also characterized by extreme homophobia and misinformation.
Lesbian women hear this kind of rhetoric all the time and from a variety of sources and this feeds homophobic sentiment within the broader community.
Insofar as there have been constitutional provisions which protect the interests of LGBT people in Fiji, yes it is true, that Fiji’s 1998 constitution did include a clause which outlawed discrimination on the basis of sexuality. This was a highly contested provision, however, which successive governments attempted to remove. It is no longer valid as the constitution was overturned by the current military regime in 2009. Since then the military regime issued a new decree (March 2010) which decriminalized homosexuality, overturning a colonial-era sodomy statute that the police had used to charge people, even when the 1998 constitutional provisions were in place.
All of this may seem positive but I think it also needs to be said that for many Fijian’s the church rather than the state is the key institution that regulates social conduct and establishes the protocols by which Fijians decide what is acceptable and unacceptable behaviour. The law is seen as an artifact of the capital, Suva, and when it touches on issues related to ethics, morality and culture (as questions around sexuality necessarily do in this context), the citizens of Fiji are probably far more likely to listen to the pronouncements of religious and cultural leaders than what they regard as more abstract legal provisions.[18]
[18] RRT Country Advice “Fiji – FJI39330 – Homosexuals – Lesbians – Discrimination” 21 October 2011
Tribunal hearing
The applicant appeared before the Tribunal on 8 March 2022 to give evidence and present arguments in support of her case.
The applicant said she was born and lived in Suva Fiji for most of her life. She said that prior to her departure from Fiji she did not have stable accommodation. She said that she was living with her sister in Suva but she kicked her out of the home after an aggressive confrontation when she suspected she was having a relationship with [Ms B]. She said she moved to live with a friend but when she confided in her friend about her sexuality her friend also asked her to leave her home. Thereafter she was couch surfing for several months.
The applicant said that when her sister kicked her out of home she spoke truthfully to her eldest sister about her sexual preferences and she was understanding and supportive of her. She said that after her arrival in Australia they talked more about it and her sister tried to stand up for her in family meetings in Fiji. She said that as a result of these well-intentioned actions her other family members are now also aware of the situation. The applicant stated that she has since resumed some infrequent communication with her other sister but they have never spoken about what happened in Fiji. Similarly, she said she has some contact with her mother but they have never mentioned her sexuality in any of those conversations. She said her mother most probably now knows about her sexuality but she has concluded her mother would rather not discuss it. She said she has had no contact with any of her male relatives, brothers and uncles, since she departed Fiji.
The applicant stated that she worked from the end of 2009 until April 2013 as [an Occupation 2] in [Employer] in Suva. She said that [Ms B] also worked there and they spent a lot of time together, at lunch, after work, working late and when travelling for work. She said that rumours began to circulate in [Employer] about their relationship. She said she was confronted by a work friend about their relationship but she denied it. She said people talked about them and laughed behind their backs it became very difficult for her to continue working there. She said she felt ashamed to be in the office and that she was regarded as a joke. She also felt disappointed when she failed to receive a promotion despite performing well in the interview and being recommended for the position. She said she was told by the Director that she was not considered suitable for the position and she felt this could only be due to the rumours which had begun circulating about her sexuality. She said that [Ms B] remained working in [Employer] at that time but she felt she could no longer stay there and resigned. Thereafter she was unemployed for a few months before finding poorly paid work as [an Occupation 3].
The Tribunal asked the applicant whether she complained about her failure to get the promotion and she said she did not. She said that she was employed in [Employer] which ought to have respected the right to equality but that on the contrary she saw work mates laughing and disrespecting gay people who dared to complain about discriminatory treatment.
The applicant stated that when she was growing up she felt attracted to females and had sexual fantasies about females. She said she grew up holding strong Christian beliefs and that she struggled with her feelings. She described how she felt disgusted with herself and the thoughts she had. She stated that there was nobody she could discuss her feelings with. She said that growing up they were taught that homosexuality is disgusting and she had heard stories about lesbians being raped and homosexual men being physically abused. She said she felt scared and hid her true feelings.
The applicant outlined her relationship history. She said she lost her virginity to a man when she was twenty-four. She said he was a jealous person and he cheated on her and hit her several times. She said she was scared of him and when that relationship ended she had trouble with commitment and took to drinking heavily. She said that when she met [Ms B], who had also suffered domestic violence at the hands of her husband, they bonded over those shared experiences. She said that she commenced a sexual relationship with [Ms B] in November 2012.
The applicant stated that she became engaged to her former fiancé, [Mr A], while still involved with [Ms B]. She said they were friends from school and they reconnected and starting spending time together. She said [Mr A] [was] working outside of Suva and she spent time with him there on weekends. She said he asked her to marry him and she was happy about it and thought it would help her to live a more acceptable life in Fiji. She said that [Mr A] had a cousin working at [Employer] who informed him about her rumoured relationship with [Ms B] which continued despite her engagement. She said that [Mr A] became upset and assaulted her and after that she felt she had to get away from Fiji. She said she told [Mr A] she needed a holiday and he supported her decision to come to Australia. She said at that time he hadn’t ended the engagement as she repeatedly denied the rumours of her relationship with [Ms B]. She said he adopted a disciplinary approach with her. She said that after she came to Australia she stopped having contact with him and he eventually informed her mother that he was breaking off the engagement. The applicant stated that she has had no further contact with [Mr A] since her arrival in Australia. She said she does not know what his current circumstances are. She said his work is busy and to her knowledge he has not maintained contact with her family. When asked if she fears harm from him in Fiji she said she would hope not, and doesn’t think so, but cannot be certain how he would react if he sees her again.
The Tribunal asked the applicant how she conducted her relationship with [Ms B] in Fiji. She said they acted like good friends and did their best to hide the true nature of their relationship. She said they could not live their relationship openly and could only be intimate when chances arose such as when all other household members were asleep or out or when they were away on work trips and staying in hotels.
The applicant stated that [Ms B] joined her in Australia at the end of 2015 and they lived happily together for several years. She said that [Ms B]’s application for a Protection visa was unsuccessful and when her husband passed away in 2021 she took the decision to return to Fiji to support her children and grandchildren. She said they ended their relationship because they were afraid to return to Fiji together and knew they could not live openly together in Fiji. She said however, that they remain in contact.
The Tribunal asked the applicant how [Ms B] is able to return to live safely in Fiji and she cannot. She said that [Ms B] is older than her, is not in a relationship and is living a quiet life and continuing to deny her sexuality. The applicant said that before she left Fiji her family only suspected she was in a relationship with a woman but now that her elder sister has revealed the truth about her sexuality to her other family members she can no longer return.
As to her current relationship the applicant stated that she commenced living with [Mr C] in June 2021. She said she told him about her sexuality and that he accepted it. However, she said that recently with the approach of the Tribunal hearing and her preparations for it including collecting evidence of her relationship with [Ms B] he has become increasingly uncomfortable and she doesn’t feel confident to talk about it in front of him. She said that she can feel there is a growing tension between them and she is not sure how the situation is going to affect their relationship going forward. The applicant confirmed her partner is Fijian and also has an application for review of a decision to refuse him a [visa] before the Tribunal. The applicant stated that when she took the decision to live with [Mr C] she did so because she hoped they would settle into a long-term relationship. However, she said that lately her attempts to discuss their future have been stalled by him and he now appears reluctant to commit to her. When asked if she would face harm on return to Fiji if she returned with [Mr C] she agreed that he would be able to protect her if they were together. However, she said he will not go back to Fiji for her. She said she is not even confident if they relationship will continue in Australia given the current tensions between them.
When asked about her fears of returning to Fiji the applicant stated that she will not have anywhere to live and won’t have a job to return to. She said that she would not be able to get a reference from [Employer] because of her rumoured sexuality and without that it will be hard to find another good job. She said that her main concern is that her male relatives, her brothers’ and uncles, will violently harm her. She said that although they have not personally threatened her in Australia her sister has told her what their intentions, discussed in family meetings, are.
When asked about the probability of her brothers and/or uncles actually physically harming her she described numerous incidents of violence she has witnessed in the family. She said her sister [Ms H] was very aggressive toward her when she threw her out of her home. She said that one of her brothers is very violent and has been in prison numerous times for assault and robbery. She said she also witnessed her other brother pull a knife on her uncle when they got into a physical confrontation. She said those experiences and the attitudes of her relatives toward LGBTIQ people cause her to genuinely fear for her safety in Fiji. When asked if the passage of time might have alleviated her fears she said she has thought about this and accepts that her situation might not be front of mind to her family members right now but if she returns and they see her again she believes their animosity toward her will be reignited. She said she is not a strong person and she cannot defend herself and has many violent memories which contribute to her fears. She also said that if she has to return to Fiji she will see [Ms B]. She said she was in love with her for a very long time and even them being seen together now will be detrimental for both of them.
The applicant said her immediate family members all live in Suva and that moving off the main island to a smaller community will only be more problematic for her and she will still have to hide her identity. She said it will be near impossible to find a job outside of Suva. She said she is also afraid of the impact on her psychological health of having to hide her true identity. She said that she will have to live according to the acceptable community norms and she won’t be happy doing that. She said she felt ashamed and depressed when she was in Fiji but that her experience in Australia has been completely different. She said she would also have to hide her true identity from her friends and she doesn’t want to return to a life like that. She said she lived in a dark place emotionally before leaving Fiji and she often prayed to God to end her life.
Regarding existing legal protections in Fiji the applicant agreed there are some protective policies in place but maintained they are yet to be properly implemented. She said the lived experiences of LGBTIQ people remain problematic. She said she does not trust and would not feel safe reporting problems to the police in Fiji. She said the majority of the police are Fijian men and influenced by the deep Christian and cultural beliefs prevalent in the wider community. She said that when gay people are beaten up in Fiji it is widely considered that they deserve it. She said she has witnessed police brutality over lesser issues than homosexuality which they consider abhorrent.
The applicant’s representative submitted that the report from the psychologist indicates the applicant’s sexuality is fluid and this is not a concept which is well understood in Fijian society and will be further confusing to the community. She pointed out that the applicant left her employment with [Employer] prior to the implementation of anti-discrimination legislation. She submitted that the applicant’s former partner [Ms B] has a family and grandchildren which affords her some respectability in the community which as a single woman the applicant does not have. She further submitted that the applicant should not have to seek a relationship with a male just to be afforded protection.
FINDINGS AND REASONS
Country of reference
The applicant provided a copy of her birth certificate and passport to the Department which verifies her claimed identity and nationality. Based on this information the Tribunal finds the applicant is a national of Fiji.
Fear of harm due to gender identity and sexuality
The applicant identifies as a non-binary, demi-woman and fears returning to Fiji for reason of her gender identity; sexual preferences and membership of the LGBTIQ community. She fears she will not be able to be open about her gender identity and sexuality in Fiji and that hiding her true identity will cause her serious psychological harm. She also fears social ostracism, discrimination and serious physical harm from her family and community as well as the police.
The Tribunal found the applicant to be a highly credible witness at the hearing. Her oral evidence was consistent with her written claims and submissions to the Department and the Tribunal and is supported by credible medical evidence from her treating psychologist. The applicant spoke frankly and honestly and with genuine emotion about her lived experiences in Fiji and her past and current relationships with family members and intimate partners, both men and women in Fiji and Australia. She provided a convincing level of detail about her relationship with various family members and their attitudes towards people with non-conformist views about gender and sexuality and about her lived experiences in the workplace and community in Fiji. She also described in credible detail the familial treatment she experienced in Fiji which is supported by a statement from her elder sister and independent information.
On the basis of its assessment of her credibility the Tribunal accepts the applicant does not fully identify as a woman and that her sexual preferences are neither exclusively female nor exclusively male and include both genders. The Tribunal accepts her gender and sexual identity does not conform to the binary concepts of gender that is prevalent in Fiji and that she is a member of the LGBTIQ community. The Tribunal accepts the applicant was formerly engaged to a man in Fiji; that she was in a longstanding sexual relationship with a woman ([Ms B]), which commenced in Fiji and continued for many years in Australia and that she is currently in a relationship with a Fijian man ([Mr C]) in Australia. The Tribunal accepts the applicant’s relationship with [Ms B] was the subject of rumours in the workplace and community in Fiji and that this led to her sister, [Ms H], kicking her out of her home where she was living after a violent confrontation. The Tribunal accepts the applicant was also forced to leave the home of a friend where she subsequently lived after she too refused to accept the applicant’s sexuality. The Tribunal accepts the applicant confided in her eldest sister about her relationship with [Ms B] prior to her coming to Australia and that after her arrival in Australia her eldest sister, who is supportive of her, confirmed this to other members of the family in her attempts to get them to accept her. The Tribunal accepts the applicant’s relationship with [Ms B] became known in her workplace in Fiji and led to the applicant leaving her job out of shame, discomfort and disappointment. The Tribunal accepts the applicant’s former fiancé came to know of the rumours of her relationship with [Ms B] and assaulted her for this reason in Fiji and eventually broke off the engagement after her arrival in Australia.

The Tribunal is satisfied that LGBTIQ persons in Fiji possess common characteristics and attributes that make them distinguishable from the rest of society – that is, their sexual orientation and gender identity – and that these are not the shared fear of persecution. The Tribunal finds that LGBTIQ persons constitute a particular social group within the meaning of the Act.
The Tribunal accepts the applicant’s claims of discriminatory treatment on account of her sexuality in the past in Fiji. This includes physical and verbal abuse and ridicule from family members, her former fiancé and work colleagues and superiors. The Tribunal considers she would face a range of problems if she were to seek to live openly as a non-binary woman in Fiji.
The Tribunal accepts based on the above country information that there have been some positive changes at the constitutional level in Fiji and that social acceptance, at least in Suva, might be improving. However, overall the Tribunal is persuaded by the country information and the applicant’s submissions that there is still a high degree of social disapproval towards LGBTIQ persons in Fiji, with homophobia generated and perpetuated by the conservative Methodist church, political leaders of high stature and the media. The Tribunal is persuaded that the environment for LBGTIQ persons, and particularly women who have sex with other women, remains generally hostile.
Notwithstanding the above, the Tribunal acknowledges that any homophobic taunts and other forms of verbal ridicule the applicant may suffer on return to Fiji might not arguably be considered serious or significant harm. Furthermore, although the implementation of anti-discrimination employment policies may still be lacking the Tribunal considers they nevertheless afford a degree of protection to the applicant. However the applicant’s main concern is that she will suffer serious physical harm at the hands of her male family members in Fiji for the reasons claimed.
In the applicant’s case she described a family environment in which violent behaviour occurs frequently. In particular, she indicated that one of her brother’s has a lengthy criminal history of assault. She said that even her sister threatened her violently in the course of ejecting her from her home. The Tribunal accepts, on the available evidence, that the applicant’s family are religiously conservative and do not condone the applicant’s sexual preferences. The Tribunal notes the absence of threats personally delivered to the applicant from her male relatives and has considered the length of time that she has been absent from Fiji and whether this is likely to have alleviated any animosity they may have toward her. The Tribunal found the applicant’s assessment of how her male relatives are likely to react when confronted with her physical presence persuasive and agrees that her return to Fiji will be evident and will reignite their feelings of anger and shame. Based on the available evidence the Tribunal is satisfied that in the applicant’s particular circumstances there is a chance, which is not remote, that the applicant’s brothers and/or uncles will follow through with their threats to assault her for reason of her sexuality if she returns to Fiji. The Tribunal is satisfied that such treatment will amount to serious harm.
The Tribunal acknowledges the applicant is currently in an intimate relationship with a male and that should they return to Fiji as a couple it might mitigate the risk of harm she faces from her male relatives. However, based on the available evidence the Tribunal cannot be certain that the applicant’s partner [Mr C], who is continuing to pursue a migration outcome in Australia, will in fact return to Fiji if the applicant is required to return home. Based on the available evidence the Tribunal considers there is strong reason to believe he will not do so.
The Tribunal has considered whether the applicant can avail herself of effective state protection against the harm she fears. According to DFAT[19] the ethnic make-up of the Fiji Police Force roughly reflects Fiji’s broader ethnic make-up. There have been confirmed cases and credible allegations of police involvement in beatings and assaults. DFAT assesses that the police have some ability to protect individuals from societal harassment, discrimination and violence. However, Fiji continues to have very high levels of physical and sexual violence against women with the situation being worse in rural areas and outer islands. Credible sources agree gender-based violence is an area where police need to improve their responsiveness and action and in practice police protection is reportedly inadequate to protect women at risk of violence. Due to societal norms only around a quarter of victims seek official protection.
[19] DFAT, Country Information Report, Fiji, 27 September 2017
Having had regard to the independent information, the Tribunal is not satisfied that a woman who neither identifies as male or female and whose sexual preferences are neither exclusively male or female, and who experiences physical abuse, is able to access adequate and effective state protection from the Fijian authorities. The Tribunal accepts the submissions made that it is unlikely that the police’s views of LGBTIQ persons or other non-conformist sexual behaviour will differ significantly from society at large. The applicant claims, and the Tribunal accepts, that she was previously too afraid to report abuse to the police for fear that the police would also abuse her. The Tribunal considers that state protection would not be forthcoming in the applicant’s case if she needed it against the harm she fears from male relatives in the future.
The Tribunal considers the physical harm the applicant fears from her male relatives is more likely to occur in Suva where her family members are based. However, the Tribunal also considers, based on the available evidence, that there is every likelihood her male relatives will find out her whereabouts, through family channels and kinship networks, including regular family meetings, in the unlikely event she could reasonably relocate to another part of Fiji. Given the demography of Fiji the Tribunal considers there is a possibility that her male relatives, being motivated to physically harm her for transgressing deeply held religious and cultural mores, will seek to do so and will be able to do so, wherever she resides in Fiji. For these reasons, the Tribunal considers the applicant will face the harm she fears from her male relatives wherever she goes in Fiji. Therefore, the Tribunal considers the real chance of harm relates to all areas of the country.
The Tribunal notes the applicant cannot be expected to modify her behaviour in order to avoid the harm she fears in a manner that would alter her sexual orientation or gender identity or conceal her true sexual orientation or gender identity.
Having carefully considered the claims and evidence, the Tribunal finds that there is a real chance the applicant will suffer serious harm if she returns to Fiji for reason of her gender and sexual identity and membership of the particular social group “LGBTIQ persons in Fiji”. The Tribunal finds the applicant has a well-founded fear of persecution in Fiji. Accordingly, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
The Tribunal is satisfied that the applicant does not have a right to enter and reside in any third country and that the applicant is not excluded from Australia’s protection by s.36(3) of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Tania Flood
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.
…

[2022] AATA 1438

16 March 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Remedies

Natural Justice