1713106 (Refugee) - [2020] AATA 3829

1713106 (Refugee) [2020] AATA 3829 (21 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division
CASE NUMBER:  1713106
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Meredith Jackson
DATE:21 July 2020
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 21 July 2020 at 2:03pm

CATCHWORDS
REFUGEE – protection visa – Fiji – victim of domestic violence – same sex relationships following the abuse – sexual preference – lack of documentation and independent information to support claims – violence ceased in 2007 – ability to achieve independence from husband – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5, 5AAA, 5H, 5J, 36, 65, 424, 424AA, 499

Migration Regulations 1994 (Cth), Schedule 2

CASES

EZC18 v MHA [2019] FCA 2134
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 26 May 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).

2. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations as outlined in s36(2)(a) or s36(2)(aa).

3. The applicant, who claims to be a citizen of Fiji, applied for the visa on 18 January 2016. Her written claims for protection are that she is a victim of domestic violence perpetrated by her husband and, if she returns to Fiji, she will have nowhere to go but to their marital home, where her husband will abuse her and cause her serious harm, or he may prompt her to cause harm to herself. She claims that during her marriage she entered into two same sex relationships following the abuse she suffered from her husband, and, because she remains in one of the relationships, she will suffer humiliating and degrading treatment from her husband and others, including members of her own family, if she returns to Fiji. She claims she will be unable to successfully re-establish in Fiji because her husband will be watching her every move; he has family and friends who will work against her and she will suffer abuse and degradation.

4. On 21 June 2017 the applicant applied for a review of the delegate’s decision, providing a copy of the decision with her review application. The applicant gave evidence in English, and the Tribunal is satisfied that she has a strong command of the language and has had a fair opportunity to present her case.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CRITERIA FOR A PROTECTION VISA

6. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

7. 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.

8. 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).

9. 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.
The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1), and if she does not, whether there are substantial grounds to believe that, as a necessary and foreseeable consequence of her being removed from Australia to Fiji, there is a risk she will suffer significant harm.

Country of reference

In her protection visa application, the applicant claims to be a citizen of Fiji. Given the personal details provided in that visa application, the Tribunal is satisfied the applicant is a Fijian national. Fiji is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country, therefore, the Tribunal finds that she is not excluded from Australia’s protection obligations under s.36(3).

CLAIMS AND EVIDENCE

Issues

The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to her receiving country of Fiji, there is a real risk she will suffer significant harm.
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. A decision-maker is not required to make the applicant's case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)

Applicant’s immigration history

The chronology below is drawn from the delegate’s decision and the applicant’s explanatory statements to the Tribunal.
a.    The applicant first arrived in Australia in 1996 as a dependant on her husband’s [student] visa. She departed in December 1996;
b.    [In] May 2007 the applicant arrived in Australia on a [temporary] visa;
c.     [In] May 2007 the applicant departed Australia for Fiji;
d.    [In] May 2007 the applicant transited Australia as part of travel to a work conference in [Country 1];
e.    [In] May 2015 the applicant entered Australia on a [temporary] visa; on her way back from a work-related education course in [City 1], [Country 2];
f.   [In] June 2015 the applicant left Australia after a holiday with [Ms A];
g.    [In] October 2015 the applicant arrived in Australia on a [temporary] visa;
h.    On 18 January 2016 the applicant lodged an application for a Permanent Protection, class XA (subclass 866) visa.

Summary of claims

The applicant’s claims for protection are as follows:
a.    She is a victim of domestic violence and fears for her safety if returned to Fiji because of her husband’s violent nature;
b.    She has nowhere to go in Fiji but to the family home she shared with her husband until she left for Australia in 2015; all but one of her adult children still live there, as do her grandchildren; her children suffer violent abuse from her husband similar to that which she experienced; her husband will stop her from travelling and relocating away from the family home and her circumstances will lead her to commit suicide or otherwise harm herself;
c.     She will not be protected in Fiji because domestic violence protections are not applied in practice: domestic violence is regarded as a family matter; despite law reform and protections, whatever is written is not practised; sometimes the enforcers are the perpetrators; her husband is well connected through his community activities; she will be watched by many, her movements and perceived transgressions will be monitored and reported to the applicant’s husband;
d.    Because of her marital issues she sought solace in same sex relationships, and this would compound her risk of harm if she returned, because her husband will show disrespect for her and make degrading remarks about her; she will be ‘disowned’ by family and church members and subjected to ridicule in the community. She has found happiness with women, and refuge with her same-sex partner [Ms A] in Australia.
Having considered the applicant’s claims made at the primary level and having discussed those claims with her at the hearing, the Tribunal believes that the above is a fair assessment of the entirety of her claims, notwithstanding some evolution over time, as discussed in these reasons.

Materials before the Tribunal

The Tribunal has before it the Tribunal file and the Departmental file relating to the applicant’s case. Information including, but not limited to, the following is contained in those files:
Documents submitted in support of the applicant’s visa application:
a.    The applicant’s protection visa application lodged on 18 January 2016 which included the applicant’s identity information;
b.    A handwritten declaration concerning the applicant’s first trip to Australia with her husband in 1996; the applicant’s curriculum vitae; a handwritten statement about applicant’s experiences involving her husband regarding: physical and verbal violence, the cessation of physical violence in 2007, her sexual preferences, and her sense of shame she would experience if she returned to Fiji; a letter from a church director in Fiji regarding her marital history; Fiji media reports regarding same sex marriage attitudes in Fiji; general information regarding domestic violence; Fiji Family Court record dated [January] 2016 regarding an Absconding Warrant issue and withdrawal; personal messages between the applicant and her current partner (witnessed); funds transfers to [Ms A] in Fiji; public reports regarding the Fijian government; the primary level decision.
Written submissions to the Tribunal:
c.     The primary level decision; policy information about violence against women in Fiji (2008); submissions regarding domestic violence in Fiji; the applicant’s visa application and identity documents; her curriculum vitae; a submission in support of her review application;
d.    Submission from the applicant’s daughter [Ms B]; submission from [Ms A]; tenancy records for applicant and [Ms A];
e.    Post-hearing submission from applicant addressing issues raised in the hearing; letters in support of her case from former work colleagues in Fiji;
f.   Letter dated [May] 2020 from the Family Law Court in Fiji, concerning an application by [Mr C] for custody of and maintenance for the applicant’s children and an absconding warrant against (the applicant) [and] regarding a hearing [in] May 2007 conducted in the absence of the latter person, noting that the parties had reconciled and no orders had been made;
g.    Letter from the Family Court Division in Fiji regarding an absconding warrant issued against the applicant and subsequently cancelled with no further applications pending;
h.    Letter from [a] Hospital in Fiji dated [May] 2020 stating that it had not collected or found a medical or hospital record regarding the birth of the applicant’s first child in [year] or any other relevant submission thereafter;
i.   Letter from [a doctor] of Fiji certifying that the applicant had been his patient at [Clinic 1] for over 20 years and stating he was unable to write a medical report because he was no longer associated with the medical centre and did not have access to the applicant’s medical record;
j.   Letter from [Ms D]; stating that she is the applicant’s best friend and outlining efforts she had made in May 2020 to access the applicant’s medical records in Fiji without success;
k.     Letter from the [Employer 1] dated [May] 2020 certifying the applicant’s employment [from] [February] 2001 to [October] 2015 and stating [Employer 1] may be able to provide information regarding the applicant and any absence from work due to family issues by June 30, 2020: the Tribunal notes no information has been received.

Claims made at the primary level

The applicant appended a handwritten statement to her visa application. The statements are summarised below in a manner that economises on her expression but which the Tribunal believes protects the integrity of her written statements and is a fair summary.
In response to the question: Why did you leave (Fiji)? :
I am a victim of domestic violence and fear for my safety because of my husband’s violent nature. He has threatened last year (2015) to “revert to what he used to do before”. I found the courage to leave home on [date] October 2014. The abuse I suffered since getting married in 1988 made me helpless and depressed and in 2002 I found solace in another woman and love never given to me by my husband. The Methodist Church of which I am a member does not condone same sex relationships. My family and church will disown and disdain me. I will be ridiculed, discriminated, humiliated, intimidated and treated as a cancer.
In response to the question: What do you think will happen to you if you return to that country?
My right as a living human being will be violated. My husband will put a stop order on me travelling overseas. I will be imprisoned in my own home. I will suffer all the things I have already gone through; I will abuse alcohol or end my misery by harm or suicide. He will have circulated stories about me to everyone. He went to church members in their homes and took our children with him and told them they are motherless. I do not want my children put through any more pressure and stress.
In response to the question: Did you experience harm in that country?
I was harmed and mistreated with domestic violence from my husband. I will be mistreated or beaten if I voice my opinions, ask his whereabouts or how he is spending our money, if I am not good to his mother and relatives who live with us, or (otherwise transgress in his eyes). The man who was all charming when we met beat me almost every week. When I was pregnant with our first baby he beat me so badly. Our baby was stillborn. He only took me to a doctor when the bruising subsided. As a working mother he had no respect for my tiredness and forced me to have sex. In October 2007 he stopped physically abusing me, after our case was heard in the family court. But that did not stop him dishing out verbal abuse, sexual violence, emotional torment and economic violence, in front of my children. He would threaten me with raised hands.
In response to the questions regarding why she did not seek help:
The mindset of the people is still very traditional and conservative. My husband is [occupation] too and everyone believes him because of his charm and they take his side. He has tarnished my name and reputation even to my own brothers and sisters. There are a lot of conventions, international treaties have been ratified and supplemented exiting laws but implementation is lacking and people think if you leave your husband you are a disgrace in a Christian state, and there is zero tolerance of same sex relationships. Even if you are subjected inhuman treatment, it is okay because you are sinful.
In response to the question regarding attempted relocation:
In 2007 he punched me while I was asleep and I left that morning and did not return. I went to the western part of Fiji to get away from him. But he traced me through his [relative] and they found me in[City 2], then called the army to pick me up to put me in the boot and bring me back to [City 3]. Soldiers stomped into my friend’s house with their guns to pick me up. He had reported me missing but he knew where I was. It was degrading and demeaning and then I found I was in the missing person’s column on television. I was a laughing stock in [Employer 1], where I worked. People did not know the real reason I left the house; that I had had enough of the domestic violence and not because I wanted to run away with a girl, as he had stated when he filed for the case in the Family Court. I can only take so much pain and suffering, I have had enough of his violent behaviour.

The hearing

Family violence

On 5 February 2020 the applicant provided a statement prior to the hearing, in which she stated:
I arrived in Australia [in] October 2015 from Fiji and had sought protection from my husband due to his abusive and violent nature and because of my sexual preference.
The significant harm I will suffer is torture, cruel or inhuman treatment or punishment, degrading treatment or punishment.”
The applicant’s circumstances and experiences of family violence in Fiji are laid out in the statements she made prior to the hearing and they consistently and meticulously describe her experiences of assault by her husband throughout her marriage to 2007. They also consistently lay out her claims for protection.
The Tribunal also had the benefit of examining the claims by questioning the applicant in the hearing, where she was invited to comment, in a confidential, open and unlimited fashion, on all aspects of her case.

Consistent with statements prepared for the Tribunal, and her claims made in the supporting documents with her application, described above, the applicant identified herself as an indigenous Fijian who married her husband, also an indigenous Fijian, in 1988. She described numerous physical assaults by her husband from the night of her marriage until she first left the marital home in 2007, the worst of which was an attack that she claimed resulted in her first child being stillborn. This abuse happened at a party, early in their marriage. The applicant describes the attack here:
It was [year], he got upset with me after I accused him about a woman at the party so he pulled me down the stairs and onto the roadside. I was helpless, nobody intervened. It is the culture in Fiji. He locked me in a room for three days. I lost consciousness. All he gave me was Panadol and ice, then after a week we went to the doctor. I did not raise the incident. I could not get help, my two sisters were far away, my brothers were not there. And he didn’t allow me to see anyone. I was working at [Employer 2] at the time. I didn’t seek help. When I realised something was wrong I went to the clinic routinely and they didn’t notice anything. I told them I was feverish and they told me to rest. I went into labour at eight months. The beating was when I was seven months. He and his mother buried the baby while I was still in hospital recovering. I was so sad, I was broken.
The applicant was visibly distressed at times in the hearing and was granted breaks to assist her and to allow her to compose herself. The Tribunal asked the applicant each time if she was prepared to continue and the applicant said she was.
The applicant described other incidents in which she incurred bruising and pain to her body and referred to repeated instances of psychological and sexual abuse. She stated that her mother-in-law actively reported on her to her husband for any perceived transgressions in attire or domestic activities. Because her husband had a wide network in Fiji, she was constantly the victim of surveillance by his friends and family. She described instances in which he had discredited and damaged her reputation among family, church members, work colleagues and the wider community, seeking to indoctrinate people as they met them with descriptions of perceived faults and weaknesses. She described an incident in 2007, in which her husband attacked her in her sleep, and which prompted her to leave her home and children for seven months to stay with a friend, [Ms E]. Somehow her husband found out where she was. She claimed she was picked up by army personnel bearing guns. She reiterated that she was transported by army personnel to [City 3], where she had no option but to return to the house and resume living with her husband, because her [children] needed her.
She said violence against her had intensified after she had entered into an “extra marital affair” with [Ms E], in 2006, and her husband became suspicious. He sought custody of their children in the family court (Family Court of Fiji Islands) in 2007. She claimed she was not sure what happened to the custody application, because she and her husband were directed to undertake counselling. The Tribunal asked how she could have forgotten something as important as who had custody of her children, but the applicant said she was unsure because the court ordered the parties to undertake counselling, which they did. She said after that, the physical violence against her ceased, but frequent instances of other forms of abuse continued. She claimed at the time of the court proceedings, her husband relentlessly denigrated her, including in front of her children, describing them to others as “motherless”.
The Tribunal asked why, if, as she claimed, her husband had not hit her since 2007, she feared that he would resume physically punishing her if she returned to Fiji. She stated:
The kids are telling me they are being hit, and if it has happened in the past it can also happen in the future. And the verbal and emotional abuse, his degrading treatment of me, is why I could not go back to him.
The Tribunal then noted the applicant had claimed she had remained in the marital home until 2015, albeit continuing to suffer various forms of abuse, and asked whether she had at any time sought help from her doctor in Fiji. She responded that her husband would always wait until the bruising and swelling subsided, and then escort her to the doctor. He would then ask the doctor to backdate her medical certificates for work claims. She claimed the doctor was also frightened of her husband. She had asked him for medical records and he said he could not give them to her because by then, she was claiming protection in Australia.
Asked by the Tribunal whether she had at any time sought help from women’s services or groups in relation to the violence, the applicant responded that she did not want to go to women’s groups in Fiji because of the risk. Her husband had a friend at the Women’s Centre who would inform on her; he had friends everywhere. He was friends with police because he played [sports] with them. She said even though there are laws about domestic violence in Fiji, in her case, there was always the risk of someone calling her husband and reporting that she had been to see them. He would then want to know what she was doing there, and that would make things worse.
After she left the family home, the applicant claimed her husband had transferred his attention to physically and psychologically tormenting the children. The beatings that her children reported when she contacted them in Fiji, made her think that the violence would resume if she returned. She said he always used to threaten that he could start beating her again at any time.

Same-sex relationships

The Tribunal asked the applicant about her claim to having been in same sex relationships with [Ms E] and later, Ms [A]. The applicant claimed the relationships had provided comfort and solace such as she had not known in her marriage.
In response to the Tribunal’s questions concerning her sexual orientation, the applicant said she first realised she had a sexual preference for women in 2006:
It was also something that eventuated because of the abuse and degrading remarks and treatment I was getting at home.
I wasn’t getting the love, so when a woman gave me that I was touched that someone cared for me.
She said the relationship began because [Ms E] was listening to her, and she cared about her relationship difficulties. She did not experience a sexual orientation towards women prior to that point and she was fairly sure Ms [E] did not either. She had never seen [Ms E] with another woman. The relationship they developed broke up in 2007 after she went back to the marital home; she ended it for the sake of her children.
She said when she met Ms [A] it was the same, she had now lost interest in men.
In response to questions as to whether she saw Ms [A] as a life partner, she stated:
I would love her to stay as a life partner, but she’s young, [age], she is a good person. I think she sees me as a life partner.
She said her sexual orientation was far from being accepted in Fiji; as a woman in her [age] with children and grandchildren she would be subjected to degrading treatment and cruelty about it.
In response to the Tribunal’s questions about her wider background and circumstances, the applicant stated:
a.    She had first spent time in Australia while her husband was studying [at] university in 1996;
b.    In October 2015 she undertook a study program in [City 1] for work purposes for [her] employer. Her husband was angry that she was going but there was no violence over it;
c.     On her way back from [City 1], she stopped over in Australia and spent approximately a month with Ms [A]. It was then she learned about her potential to claim protection from Australia. Prior to that, she did not know about protection being possible. She returned a few months later and applied for protection. Ms [A] claimed protection in a separate application.
d.    She currently works in [a specified] industry in Queensland, travelling extensively. She earns around $65,000 a year. In Fiji working in [Employer 1] she earned around $19,000 a year.
e.    She holds a [specified qualification]. She has not completed the [higher degree], towards which she studied in [City 1].

Elements within documents in support of the applicant’s case

As briefly described above in paragraph [20], before and after the hearing the applicant provided the Tribunal with written statements in support of her case from herself, family, colleagues and friends. The Tribunal has taken them into consideration in its decision. For the sake of completeness, the following summarises the main elements within those documents and the Tribunal believes the following to be an accurate summary of the submitted material:
a.    Reports from news media and related sources concerning alleged human rights abuses in Fiji including incidents of violence against women and LGTBI[1] persons; impacts of violence against women and others;
b.    A letter from the applicant’s daughter [Ms B] supporting the applicant’s claims of violent abuse by the applicant’s husband;
c.     Statement (by email) from [a named person], of Fiji, addressed to the Tribunal, describing violence suffered by the applicant when he was living in the same neighbourhood as she was, and claiming that he was threatened when he refused to reveal her whereabouts in 2007;
d.    A letter from [a] former colleague [between] 2004 and 2005, who has remained friends with the applicant; claiming that she had seen bruising, swollen face, lip and eye on the applicant and witnessed absent periods when the applicant lost pay; she noted that the applicant’s husband treated her “like a prisoner”, dropping her off before and after work, picking her up for lunch and returning her;
e.    A letter from [a] friend of Ms [A], claiming to be a mutual friend and describing her own experiences of domestic violence and dealing with police and her own claim for protection from Australia;
f.   A letter from [a named person], claiming to be a former colleague of the [applicant], and stating that she had witnessed firsthand, “brutality and how violent her husband could be”. She claimed the applicant’s husband had come to their workplace as staff were preparing for Christmas lunch in 2002, punched the applicant in the face and slapped and swore at her while she lay on the floor; also stating that the applicant would “constantly arrive to work on Monday mornings with bruises all over her face and arms”;
g.    A support letter from [Ms D] of Fiji, a former work colleague who claims to have witnessed a violent attack by the applicant’s husband during the Christmas party in 2002; and of bruising and swelling and black eyes on the applicant;
h.    A letter from [a named person], claiming to be the applicant’s older sister, and recounting abuse suffered by the applicant’s mother while pregnant with the applicant; and corroborating the applicant’s account of the attack which preceded the applicant giving premature birth to a stillborn baby;
i.   A submission from the applicant reiterating her fear of harm by her husband if she returns to Fiji.
j.   Statement from Ms [A]; outlining that she is a former colleague of the applicant from Fiji, and describing their relationship.
[1] LGTBI, Lesbian, gay, transsexual, bisexual and intersex.

Credibility concerns

Having heard the applicant’s oral evidence, the Tribunal in the hearing raised with the applicant some concerns it may have, but about which it had not made up its mind. The applicant was invited to comment on the concerns, which were expressed as follows.
The Tribunal noted most of the applicant’s claims were unsupported with evidence from sources other than persons close to her situation. There were supporting statements regarding her circumstances from her daughter and Ms [A], but there no documentary evidence before the Tribunal that the applicant had ever reported any of the violent incidents she described, there was no evidence from any examining physician about the impact of the alleged abuse; and the applicant had not claimed that she had ever sought to leverage the protection of the state by seeking a form of restraining order or police assistance.
The applicant responded that as she had said earlier, she could not go to authorities because her husband’s circle of friends and informants was so wide that this would have made things worse.
On 31 May 2020 the applicant provided evidence she had recently sought assistance in Fiji to retrieve medical records but had been unable to do so because the doctor who had treated her for years was unable to access her medical records. The Tribunal notes that the applicant has tried to gain the records from a medical practitioner since the hearing but has not been able to provide information regarding any medical treatment she received for violent abuse.
The Tribunal raised that the applicant had indicated that the physical violence had ceased in 2007 and that she continued to live in the marital home until 2015. Further, that she had travelled to [Country 2] for training and had visited Ms [A] in Australia for a month afterward, and her ability to achieve this might tend to suggest there was no longer a risk of harm in her domestic life. The Tribunal also noted that she possessed certain personal attributes that might assist her to re-establish in Fiji, including being educated, belonging to a stratum of society that was in her words, middle class, being articulate in English, having been employed successfully in the public sector long-term. Therefore she may be in a reasonably strong position to re-establish herself, independent of her husband, if she returned to Fiji.
The applicant responded that she had returned to the house after leaving in 2007 because she had to take care of her children, and even if the abuse was not physical after that, it had been extreme. But she had a duty as a mother to her children. It did not mean there was no risk because her husband had kept threatening that he could always go back to beating her. So while she was able to live there, she still feared for her life; it was her children who kept her going. Even now that they are grown, as their mother she still worries about them, because the threat remains real for them, they now suffer the brunt of her husband’s temper. As regards re-establishing, as a woman aged over[age], with a reputation as being LGBTI and with her history of having left her husband, if she returned to Fiji now she would be vilified and humiliated, she would be “a laughing stock” and it would be cruel and degrading for her as an older woman.
After the hearing, the Tribunal identified some inconsistency in the applicant’s account of her appearance before the Family Court in May 2007. This became the subject of a letter sent to the applicant by the Tribunal on 5 March 2020 under s.424 of the Act.
The applicant responded in a submission to the Tribunal of 31 May 2020 that she had been genuinely confused about the date of the court hearing and apologised to the Tribunal for her error, stating she had misinterpreted the date. The Tribunal accepts the applicant made a genuine error in recounting the date as [date] May 2007. The applicant provided the letter from the Family Court of Fiji outlining the dates on which proceedings occurred, being [date] June 2007, and stating that both parties were present on and the matter was referred to a Court counsellor for a possible reconciliation. The applicant also highlighted that the Family Court did not grant custody or maintenance to either party as an outcome of the proceedings because they had reconciled.
In relation to other information sought from the applicant by the Tribunal in its letter of 5 March 2020 the applicant stated that she had been unable to secure records related to the death of her first child, despite genuine attempts to do so. She stated that it has been 30 years since the death occurred and she could only construe that her file had been misplaced. The applicant provided a supporting statement dated [date] May 2020, [a specified] Hospital in Fiji. The Tribunal accepts the record is not available to the applicant and that the applicant made a credible attempt to locate it.

Country information

The DFAT Country Information Report Fiji, 27 September 2017 states in relation to women:

3.69 The 2013 Constitution and legislation protect women’s rights to equality and freedom. For example, the Employment Relations Promulgation 2007 prohibits discrimination on the basis of sex, pregnancy, and family responsibilities. There is little official discrimination against women in law and official policy.

3.70 The Family Law Act 2003 and a range of recently enacted decrees including the Domestic Violence Decree 2009, Criminal Procedure Decree 2009, Crimes Decree 2009, and Family Law (Amendment) Decree 2012 provide legislative protection against violence. These decrees have improved the legislative framework for preventing and responding to violence against women, including by expanding authority for police to undertake investigations; providing for Domestic Violence Restraining Orders; expanding the definition of rape (including spousal rape); and increasing penalties for trafficking in women or children.

3.71 In practice, however, Fiji continues to have very high levels of physical and sexual violence against women, even when compared to high regional averages. The Fiji Police Force has ostensibly had a ‘no-drop’ policy for domestic violence cases since 1995, meaning that cases cannot be dropped by police or withdrawn by the victim and must be investigated. Nonetheless, few cases reach the courts, and those that do are frequently dismissed or light sentences handed down. Due to societal norms, only around a quarter of victims seek official protection. Several shelters are available in Fiji, as well as counselling services. Several women’s rights NGOs are active in policy formation and service provision, particularly in the area of violence against women.

3.72 In September 2016, the Ministry of Women and the Fiji Women’s Crisis Centre (FWCC) launched a national 24-hour toll-free hotline. The FWCC has operated a hotline previously; however, victims were required to pay for the calls. During the toll-free line’s first week of operation, over 100 calls were received from women. The FWCC has emphasised that a host of support services will need to be mobilised and prepared for referrals.

3.73 In practice, police protection is reportedly inadequate to protect women at risk of violence. Families sometimes turn to traditional and religious reconciliation practices in both indigenous and Indo-Fijian communities to mitigate sentences in domestic violence cases. Women who are victims of domestic or sexual violence rarely report the incident due to distrust in authorities’ ability to support them, and for fear of shaming their families or village. Lesbians face additional challenges (see Sexual Orientation and Gender Identity).

3.74 Overall, DFAT assesses women are at a low risk of official discrimination and a moderate risk of societal discrimination. DFAT assesses that women are at a high risk of domestic violence, at the hands of a spouse or intimate partner, with the situation being worse in rural areas and even worse in the outer islands. Credible sources reported that women often feel pressured to accept village compensation and remain in the abusive relationship.

CONSIDERATION OF CLAIMS AND EVIDENCE

As stated above, 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.
The applicant claims she is a victim of domestic violence and fears for her safety if returned to Fiji because of her husband’s violent nature; she has nowhere to go in Fiji but to the family home she shared with her husband until she left for Australia in 2015; her circumstances will lead her to commit suicide or otherwise harm herself; she will not be protected in Fiji because domestic violence protections are not applied in practice: domestic violence is regarded as a family matter; despite law reform and protections, whatever is written is not practised; sometimes the enforcers are the perpetrators; her husband is well connected through his community activities; she will be watched by many her movements and perceived transgressions will be monitored and reported to the applicant’s husband; her identity as same sex would compound her risk of harm if she returned, she will be ‘disowned’ by family and church members and subjected to ridicule in the community. She has found happiness with women, and refuge with her same-sex partner [Ms A] in Australia.
The Tribunal has considered each of the claims as detailed earlier in these reasons, separately and as a whole. The Tribunal is satisfied that:
a.    Severe physical and other forms of abuse, of the type described in the applicant’s claims, was inflicted on the applicant at home and at work from the time of her marriage in 1988 until court-ordered reconciliation counselling was completed 2007;
b.    After the Family Court of Fiji ordered the couple to reconcile in 2007, forms of psychological abuse remained a feature of the applicant’s family life and affected the applicant and her children; and that she and her daughter [Ms B] in particular, remain tormented by the events;
c.     The applicant’s first baby was stillborn in [year]; the applicant suffered significantly from physical abuse during her pregnancy and this may have caused or contributed to the death of her first child;
d.    The applicant having been granted multiple extensions of time by the Tribunal to provide additional submissions, made significant efforts following the hearing to seek written records in support of her case but her efforts were hampered by the COVID-19 global pandemic and in some cases, by the time elapsed since claimed events, or by the absence or inaccessibility of public and medical records;
e.    The applicant made a genuine error in recounting the date of her scheduled appearance in the Family Court of Fiji as [date] May 2007;
f.   Significant social obstacles exist in Fiji for women experiencing family violence and for persons who identify as LGTBI in Fiji;
The Tribunal is not satisfied that:
a.    The applicant’s husband was physically abusive towards her after the couple completed reconciliation counselling in 2007;
b.    The applicant’s husband has an innate and immutable “violent nature” that means he will continue to physically abuse her;
c.     The physical and other forms of abuse that the Tribunal accepts occurred prior to 2007 would recur if she returned to Fiji;
d.    The applicant would not be in a position to re-establish herself independent of her husband, if she returned to Fiji;
e.    That her mother-in-law and members of her family would ostracise her to the point she could not function;
f.   The applicant is a person who possesses a same-sex attraction that is an innate or immutable characteristic.

Analysis

At the hearing, the applicant described in graphic detail, numerous physical assaults against her by her husband from the time of her marriage in 1988 until 2007. She claimed the physical assaults ceased after a Family Court intervention in 2007 but forms of emotional, sexual and economic abuse continued until she left the family home in 2015. The applicant stated that while the physical acts of violence inflicted on her by her husband between 1988 and 2007, which were vicious and one so extreme that she believes it caused the loss of her first child, the continuation of other forms of violence (emotional, sexual, psychological, economic) affected her profoundly until she left for Australia in 2015. The applicant claimed her husband has not changed in the sense of being capable of psychological violence, and abuse aimed at her or through her surviving children, and has threatened to go back to his old ways at any time.
A concern the Tribunal put to the applicant at the hearing was despite the detailed manner in which she had described what had happened to her, there was an apparent lack of documentation and independent information to support her claims. She had had years to obtain records, and appeared to have planned her departure to Australia in 2015, but had not provided hospital records, any birth or death records in relation to her stillborn child, any medical records of her consultations about abuse or the seeking of medical attention, copies of any medical certificates issued to her, or any Family Court records or records of having sought the protection of the state or psychological services.
The Tribunal put to the applicant DFAT country information which stated:
3.71 … Fiji continues to have very high levels of physical and sexual violence against women, even when compared to high regional averages. The Fiji Police Force has ostensibly had a ‘no-drop’ policy for domestic violence cases since 1995, meaning that cases cannot be dropped by police or withdrawn by the victim and must be investigated. Nonetheless, few cases reach the courts, and those that do are frequently dismissed or light sentences handed down. Due to societal norms, only around a quarter of victims seek official protection[2].
[2] DFAT, DFAT Country Information Report Fiji, 27 September 2017.
The applicant responded that she had not reported the violence because:
“Like I said he has friends, with the police, and the guys he plays [sports] with, and they will call him if I went to the police station to report.”

Country information regarding Fiji administrative systems

In relation to the provision of documentation, the Tribunal notes DFAT Country Information Report states:
5.35 Procedures for issuing identity documents are antiquated. Identity records are kept at the headquarters in Suva but most documents have weak to no security features. Issuance, updating and access to records are susceptible to bribery and corruption.
The Tribunal accepts standards in administrative record keeping in Fiji have increased the applicant’s difficulties in obtaining documents, particularly during the pandemic.

Error in date regarding court appearance

The Tribunal accepts the applicant’s evidence that she made a genuine error in assessing and recounting the date of her Family Court appearance and gives the issue no further consideration in this decision.

Is there a real risk of significant harm?

The Tribunal has considered all the statements and written documents the applicant has provided to the Tribunal in relation to whether 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 Tribunal has found that she is not such a person, for the following reasons.
The applicant claims that if she returns to Fiji, she will be compelled by her circumstances to resume living in the family home with her husband, which she fled in 2015 and, further, if she did return to the home, whether there is a real risk of significant harm to the applicant. The applicant has claimed that were she to return to the house, she would suffer a repeat of abuse suffered previously at the hands of her husband and further, that her husband will stop her from travelling and relocating elsewhere. These circumstances, she claims, will lead her to commit suicide or otherwise harm herself.
The Tribunal has considered the evidence provided to the Tribunal by the applicant in submissions, at hearing, and following the hearing, and is satisfied that significant physical abuse occurred when she was living with her husband, and that it affected her profoundly. While she has been unable to provide the Tribunal with sufficient supporting information for it to be able to verify beyond doubt that her husband was the perpetrator of the abuse, the Tribunal is satisfied on her evidence and the supporting submissions from friends and colleagues, she was at times beaten, harassed, controlled, shamed and humiliated in front of her family, friends, her children and her colleagues. The Tribunal accepts she may have lost her stillborn baby due to abuse, and if she did, she has suffered immeasurably, particularly if, as she claims, her husband and mother-in-law buried the baby without her knowledge while she was still in hospital. However the Tribunal cannot know that physical abuse during pregnancy was the cause of the infant’s death because, despite the applicant’s best efforts to provide supporting evidence, she has been unable to do so. The evidence of the cause of death is not before the Tribunal and therefore other possibilities as to its cause, remain.
The Tribunal is satisfied however that the supporting statements submitted by the applicant from her daughter, colleagues and friends, that the applicant suffered many and frequent forms of severe abuse and that it was abuse perpetrated by her husband. It is satisfied because the statements she provided from friends and colleagues are highly correlated with the applicant’s claims about the period before 2007.
This notwithstanding, the Tribunal is not satisfied the abuse continued after the couple were ordered to attempt reconciliation, partly because the applicant has herself provided clear evidence to the effect that the violence ceased in 2007. The applicant stated in her submissions that after Family Court proceedings took place 2007, wherein the couple were forced to seek counselling, the physical abuse ceased and did not recur.
The applicant claims other forms of abuse took its place, however, including emotional and social abuse and violent pursuit of the surviving children. Further, the applicant’s daughter has provided written claims that she has suffered her father’s abuse directly. However distressing such conduct must be for the applicant and her children, the Tribunal considers it does not guarantee that if the applicant returned home, abuse would be directed towards her to the extent that it would pose a real risk of significant harm, as envisaged by the Act. She has acknowledged that physical abuse ceased in 2007, and the Tribunal notes the applicant claimed she returned to the family home for the sake of her children and continued to live there until 2015, continued to hold a senior role [with her employer], continued to travel overseas, and continued to pursue her professional, educational and personal interests while living there for eight years post the 2007 reconciliation. The Tribunal has been unable to assess or establish the degree of any other forms of abuse either to the applicant or her children in the absence of evidence that it was severe enough that the applicant sought external help. The claims that the applicant’s husband has abused his children have also been considered but the Tribunal has not been able to properly assess, on the evidence before it, the extent and reality of any abuse perpetrated against the children. Therefore the Tribunal has not been persuaded that it constitutes a risk of significant harm to the applicant.
In the absence of firm evidence to the contrary, the Tribunal concludes that having suffered abuse from the time of her marriage in 1984, in 2007 the applicant experienced a significant reduction in the intensity and frequency of physically abusive events and a mitigation of other forms of abuse. On the evidence before the Tribunal alone, it cannot be concluded that physical and other abuse was the reason the applicant decided to leave the home in 2015 and seek protection in Australia; and if she were to go home, it would start up again. Having considered her circumstances carefully on the information provided, the Tribunal is not satisfied that the applicant faces a real risk of significant harm if she returns to the family home.
It bears emphasis that the applicant’s case is complicated by her decision to leave the family home in 2015, leave the country and to enter living arrangements with a woman in Australia with whom she now claims to be in a same-sex relationship. The Tribunal notes she also claims to have been in a same-sex relationship with [Ms E] in 2006. The Tribunal has considered whether sexuality has been a major factor in this aspect of applicant’s history and whether it remains so in her current circumstances, but is not satisfied, having taken into account the applicant’s own depiction of each of the relationships, that this is the case. The Tribunal has considered the applicant’s evidence about each of the relationships separately and together, and is not satisfied either was, or remains, same-sex in nature, rather it considers that the applicant finds the company of close female friends comforting. The Tribunal concludes that each of the relationships was based on companionship and solace, rather than innate sexual attraction. In the hearing, the applicant emphasised the acceptance she felt with the two women, and the comfort of female understanding, and the Tribunal notes this aspect was expressed more convincingly than any sexual aspect. The Tribunal has considered whether there were restraints on the discussion of the applicant’s sexual life, such as a cultural constraint, but the Tribunal notes the applicant appeared frank about many uncomfortable details of her claims and is satisfied this was not the case in the context of the review and that she had a fair and open opportunity to set out all aspects her case. The Tribunal notes she attended the hearing in the absence of her current, claimed partner. Ms [A] made a submission to the Tribunal, referring to “the love that we have been shamed for” but the Tribunal considers the submission stopped short of positioning their relationship as a bona fide, sexual, long-term one. The Tribunal notes Ms [A] is not claimed as a member of the family unit of the applicant in the visa application and states in her submission she is seeking Australia’s protection in her own right. It is worth considering that this is an approach that allows the parties to go their separate ways after any visa grant. This was underscored in the hearing, when, in response to the Tribunal’s questions, the applicant expressed some doubt about the enduring nature of the claimed relationship with Ms [A], stating in that Ms [A] was “young” and that she “thought” that Ms [A] viewed the relationship as long-term. The relevance of this to the review is that the Tribunal has not been able to satisfy itself as to whether the applicant left the family home in 2015 and claimed Australia’s protection because of continuing domestic abuse; or whether it was because she wanted to join Ms [A] in Australia because of was a friendship and common interest in residing in Australia.

Resettlement in Fiji if the applicant returns

An issue for the Tribunal is whether the applicant could re-establish herself in Fiji without risking significant harm from her husband as she claims she would if she went home. The applicant claims her husband will stop her from travelling and relocating elsewhere in Fiji and her circumstances will lead her to commit suicide or otherwise harm herself.
The Tribunal is not satisfied that the applicant will be unable to re-establish independently of her husband. As described earlier in these reasons, the applicant possesses certain personal attributes that would credibly assist her to re-establish in Fiji, including being tertiary educated, belonging to a stratum of society that (in her words) is middle class, is very competent in English, is a former a successful employee of the public sector in Fiji and is a current public sector employee in Australia, where she earns a good salary. The applicant has submitted that her husband beat her about the head and this has impaired her memory and cognitive abilities. However the Tribunal notes this is claimed without supporting medical evidence and is somewhat undermined and contradicted by the applicant’s competent presentation of her case, which has been extensive, well organised and reflects the high standards a senior administrative employee might be expected to possess. In the Tribunal’s view, it therefore stands to reason that the applicant is better placed than most returnees to re-establish herself independently from her husband in her home country. The Tribunal accepts country information makes clear the going is tough for women in Fiji, and independent women who defy or leave their husbands would undoubtedly be featured in that. However the effluxion of time is a factor that must be taken into account when weighing the issues in this case. There has been no physical violence since 2007 and the applicant lived in the family home, travelled and continued to pursue her professional life before she left her husband in 2015 to come to Australia.
In reaching its conclusions in this regard, the Tribunal has taken into account the kinds of obstacles the applicant may face in Fiji, including the potential for gossip and taunts among her community, for prejudice against women who identify as same-sex, prejudice against women generally, and prejudice against women who leave their families. The Tribunal has considered the applicant’s claim that same-sex orientation was far from being accepted in Fiji; and as a woman in [age range] with children and grandchildren she would be subjected to degrading treatment and cruelty about it. The Tribunal considers that the applicant will be subject to adverse commentary regarding her perceived sexual preferences but is satisfied it will be criticism that will hurt and embarrass her, rather than place her at risk of harm.
In summary, the Tribunal concludes the applicant may experience setbacks and difficulty in establishing a home independent of her husband in a small country, possible difficulty finding employment initially, and may experience criticism and hurt about her personal life, but that she will be aided by her personal skills, training and attributes over the course. Having considered the resettlement aspects of the applicant’s case in considerable detail the Tribunal concludes such a project would be difficult but not impossible.
In relation to whether the applicant’s circumstances will be such on return that she will commit suicide or otherwise harm herself, as she has submitted to the Tribunal, the Tribunal the Tribunal is mindful of the authority in EZC18 v MHA [2019] FCA 2134, and the finding that “arbitrarily deprived life” in s.36 (2A)(a) is restricted to the risk of being deprived of life by a third party and does not include suicide or potentially self-actioned or self-directed harm by an applicant.

Complementary protection

As described above, 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.

The Tribunal has also considered the application of s.36(2)(aa) to the applicant’s circumstances. In making its findings, the Tribunal has considered the Complementary Protection Guidelines as required by Ministerial Direction No.84, made under s.499 of the Act.
In assessing whether there are 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 of significant harm, in that the applicant will suffer a repeat of the alleged violence directed towards her from the time of her marriage in1988 to 2007, and, on a psychological basis, until the time when she left Fiji for Australia, the Tribunal has carefully considered all of the applicant’s claims, whether made before, at or after the hearing, and examined all the associated submissions individually and cumulatively.

Additional time granted to provide evidence

At the time of this decision, the COVID-19 global pandemic is affecting Fiji and Australia in an administrative and operational sense, and it bears emphasis that the Tribunal gave the applicant significant and multiple extensions of time to provide evidence in support of her case because of the difficult administrative circumstances in which she has tried to source supporting documentation. For the sake of completeness, the Tribunal provides the following timeline and details concerning each extension and the submissions made over the period between early February and the end of June 2020:
On 5 February 2020, at the end of the hearing, the applicant was provided an additional 14 days in which to make further submissions in support of her case;
On 19 February 2020 the applicant provided a submission to the Tribunal attaching information concerning family violence in Fiji; and providing statements from former colleagues and friends as described in detail in paragraph [20] above;
On 5 March 2020 the Tribunal wrote to the applicant adopting the procedure in s.424AA of the Act and providing information which the Tribunal considered relevant to her case. The Tribunal invited her to comment or respond to the information by 19 March 2020, as pertains to the following:
“The Tribunal notes that your movement records (attached) show that [in] May 2007 you travelled from Fiji to [Australia], arriving in Sydney [as] the holder of a Temporary [visa], and that you departed Australia for Fiji [in] May 2007. The Tribunal notes that in your written statement, received by the Tribunal on 3 February 2020, you appear to claim that you appeared before the Family Court on that day. In your submission, you stated the following:
“A work opportunity for overseas came around in May 2007, where I travelled
to [Country 1] for a workshop. When I returned from my travel, I was received by
a summon order to appear at Family Court in [City 3] on the [date] of May 2007.”
You further stated: “I appeared before the Magistrate on the specified date ...”.
“Your statement regarding your appearance before the court is relevant to the review
because it appears to be inconsistent with your movement record, which shows you
travelled to Australia on [date] May 2007, the same date that you claim to have appeared
before a Magistrate in Fiji. The statement in relation to your appearance before the court may lead the Tribunal to doubt the credibility of this aspect of your evidence.”
The Tribunal, in the same letter, issued the applicant an invitation to provide further submissions in the form of documents relating to her medical/hospital records for her stillborn child; medical records from [Clinic 1] regarding violent abuse; documents regarding absence from work for reasons of suffering abuse; and documents in relation to the Family Court proceedings.
On 17 March 2020 the applicant responded, seeking further time to provide submissions, stating she had had difficulty getting documents. The Tribunal granted her an extension until 20 April 2020.
On 17 April 2020 the applicant sought further time for the same purpose and the Tribunal granted further additional time, until 1 June 2020.
On 31 May 2020 the applicant provided a clarification of the discrepancy in her description of when she appeared before the Family Court. The Tribunal accepts the applicant made a genuine error and did not intend to mislead the Tribunal.

Conclusions in relation to complementary protection

The Tribunal notes the applicant has progressively submitted a series of accounts of her experiences of domestic violence with a high level of consistency in her claims. She has not had the assistance of a representative. As she points out, she has put the materials forward herself. The Tribunal also notes an omission by the delegate prior to refusing to grant protection, which was to not interview the applicant about her claims. The Tribunal has had the opportunity to hear the applicant’s recounting of her experiences in the context of the hearing. Having done so and having considered all the applicant’s claims and the materials provided in support of those claims the Tribunal finds as follows [in paragraph 94] in relation to complementary protection.

Summary conclusions

After assessing all the evidence before it, and taking into account the applicant’s personal circumstances, the Tribunal has considered the claims of the applicant individually and cumulatively and weighed its findings. For the reasons described above, the Tribunal finds that there is no real chance that the applicant would suffer serious harm if she returned to Fiji.
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

DECISION

The Tribunal affirms the decision not to grant the applicant a protection visa.

Meredith Jackson
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

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

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.
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.
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.
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.
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.
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

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.
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.

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Protection visas – criteria provided for by this Act

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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.
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