1712109 (Refugee)

This matter concerned an appeal by a Fijian national against a decision regarding her application for a protection visa. The applicant claimed that if returned to Fiji, she would face serious harm due to her bisexuality and non-binary gender identity, citing abuse from her former fiancé, disownment by her family, social isolation, and workplace discrimination, which had led to anxiety and depression. The Tribunal was required to determine whether there was a real chance the applicant would suffer serious harm if returned to Fiji, either as a refugee or under the complementary protection criterion.

The court considered whether the applicant qualified as a refugee under section 36(2)(a) of the *Migration Act 1958* (Cth) or, alternatively, whether there were substantial grounds for believing she would suffer significant harm as a necessary and foreseeable consequence of her removal to Fiji, pursuant to section 36(2)(aa). This involved assessing whether her fear of persecution was well-founded, particularly in relation to her membership of a particular social group, and whether effective protection measures were available in Fiji. The court also had regard to Ministerial Direction No. 84 and relevant guidelines and country information.

The Tribunal concluded that the applicant did not meet the criteria for a refugee under section 36(2)(a) but found that the matter should be remitted for reconsideration with a direction that the applicant satisfies this criterion. This suggests that the Tribunal found that the applicant's fear of persecution was well-founded, and that she was unable or unwilling to avail herself of the protection of Fiji due to her membership in a particular social group, and that reasonable steps to avoid persecution, such as relocation or concealment of her identity, were not feasible or reasonable in her circumstances. The Tribunal also confirmed that the applicant had no right to enter or reside in a third country and was not excluded from Australia's protection.