1728575 (Refugee)

1728575 (Refugee) [2022] AATA 4887 (30 November 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Eugene Goodluck Perazim (MARN: 0742014)
CASE NUMBER: 1728575

COUNTRY OF REFERENCE: Fiji
MEMBER:Amanda Paxton
DATE:30 November 2022
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 30 November 2022 at 9:37am

CATCHWORDS
REFUGEE – protection visa – Fiji – particular social group – single woman without protection – abandonment by biological mother – employment – fear of gender-based violence – psychological hardship – mental health issues – social stigma – referral for Ministerial intervention – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 417, 499
Migration Regulations 1994, 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 8 November 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who is a citizen of Fiji, applied for a Protection Subclass XA-866 visa on 21 June 2017.
In her written application to the Department, the applicant declares that she was born on [date] in Suva in Fiji.[1] She states she can speak, read and write English. She states she belongs to the Fijian indigenous group and her religion is Christian. She states that she was unemployed. The applicant states that she came to Australia [in] March 2015 as the holder of a visitor visa and then applied for a remaining relative visa which was refused.[2] In her application for a protection visa, the applicant indicated that she left Fiji because as a person abandoned by her mother and raised by her grandparents, and now as a single woman without protection, she fears discrimination and threats to her safety from the community if she returns to Fiji.
[1] See Departmental file [Number].
[2] Ibid.
The delegate refused to grant the visa on the basis that the applicant is not a person of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a Protection visa of the same class as that applied for by the applicant (s 36(2)(c) of the Act).
The applicant validly applied for review of the refusal decision at the Tribunal on 17 November 2017. The applicant provided the delegate’s notification of refusal of application for a Protection (Subclass 866) visa and decision record to the Tribunal.
The applicant appeared before the Tribunal on 13 October 2022 to give evidence and present arguments. The Tribunal exercised its discretion to hold the hearing by MS Teams video. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The video was clear throughout the hearing and the applicant’s answers were appropriate to the Tribunal’s questions. The applicant indicated she was able to give evidence and present arguments in this medium. The Tribunal was satisfied that the applicant was able to give evidence and present arguments to the Tribunal throughout the hearing.
The Tribunal also received oral evidence from the applicant’s father, [Father A], who attended throughout the hearing. The applicant’s [Brother A] and [his] partner, [Partner A], also provided oral evidence.
The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.
The applicant was represented in relation to the review.
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–5LA, 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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issue in this case is whether the applicant has a well-founded fear of being persecuted in Fiji for one or more of the five reasons set out in s 5J of the Act and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant 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 decision under review should be affirmed.
Written claims for protection
The applicant made the following claims in her protection visa application:[3]
·     She left Fiji because of mistreatment and abandonment by her biological mother since birth, gross discriminatory conduct towards her, serious abuse, persecution and the continuing psychological torture that she faced there.
·     She states that if she returns to Fiji, she will experience serious harm, unbearable abuse and imbecilic remarks.
·     She would also be subjected to discrimination, persecution and denial of access to basic services by the Fijian authorities.
·     She will experience gross discrimination in getting a job in Fiji and as a result face significant economic hardships and her ability to subsist will be impeded.
·     She states that she did not seek help because she is hated, abandoned and disowned by her relatives in Fiji.
·     She would face a serious threat to her personal security and liberty due to her vulnerability as a female without male protection. She would also likely face sexual abuse.
·     She would not be protected by the Fijian authorities who are helpless and there is no point seeking their assistance.
·     She claims the Fijian authorities are male-dominated and do not protect females. The system is also very corrupt. As a single female living in a politically unstable country without male protection, she is vulnerable to abuse.
·     The psychological effects of all of these on her would be indeterminably disastrous and ruinous.
[3] See Departmental file.
Submission to Tribunal
On 1 October 2022, the Tribunal received a submission from the applicant’s representative dated 29 September 2022.[4]
[4] 1728575, Doc Id. 10289678, 1 October 2022.
The representative states that the applicant arrived in Australia in March 2015 on a three-month tourist visa to visit her Australian biological father and stepmother who was battling serious health issues. Her stepmother passed away [in] February 2022 after contracting COVID-19.
The applicant also makes the following declaration to the Tribunal:[5]
·     My unplanned conception in [year] occurred as a result of a casual relationship that my father had with my biological mother. [Number] years after I was born, my mother took me to my paternal grandparents’ home and left me with them. Consequently, I was left to be brought up by my paternal grandparents.
·     My Australian father, [Father A], and stepmother, [named], were providing financial support for my upkeep.
·     My total abandonment by my biological mother, left me with indelible shock, ineffable painful memories and continuing psychological hardships. As a consequence of this, I developed low self-esteem. To date I continue to experience grief and guilt over the lost biological mother-child bond. I also experience sadness and confusion whenever I hear my friends talk about their mothers. It is extremely difficult for me when I see other children experiencing a normal life with an intact family.
·     While at school in Fiji, I experienced unbearable abuse and imbecile remarks from some of my school mates who frequently taunted and mocked me about not having a mother. My teasers always said to me that my mother abandoned me because I was useless and unlovable. This prompted me to start looking for my mother in 2006 when I became a teenager in order to re-establish a relationship. Sadly, my mother was not keen to re-establish a relationship with me. I was heart-broken and overwhelmed with grief. All along, my only consolation has always been the love, care and support that I receive from my Australian family.
·     My paternal grandfather who raised me is [age] years old now and he is frail with health problems. My stepmother who I was caring for since my arrival in Australia in March 2015 passed away in February 2022 after contracting COVID-19. My biological father and agnate siblings are Australian citizens and I reside with them in Australia. I have nobody in Fiji to draw support from.
·     I am fearful for my safety in Fiji. As [an age]-year-old single female, without a home, no child or relatives, in particular no male protection in a politically unstable country with a high level of violence and discrimination against women in Fiji, I am vulnerable to discrimination, rape and harm.
[5] 1728575, Doc Id. 10289678 and 10289679.
In this submission, the applicant’s migration history is set out. In summary, it is explained that the applicant would not have a prima facie case to satisfy the criteria for an onshore child migration visa (Subclass 802) because of her age. She applied for a remaining relative (Subclass 835) visa in July 2015 sponsored by her father on the basis of being a remaining relative of her Australian parents, having been estranged from her biological mother since she was [age] years old and with no other near relatives in Fiji. This application was refused by the Department on grounds that she did not meet the legal requirement of a remaining relative visa because her biological mother resides in Fiji even though she has never been part of her life. The applicant’s review application was unsuccessful at the AAT. The applicant and her Australian family’s request for Ministerial intervention in order for the applicant to remain in Australia with her parents and agnate siblings was not considered.
In the event this decision is affirmed, the applicant’s representative requests the Tribunal recommend Ministerial intervention pursuant to s 417 of the Act.
Evidence at hearing
The applicant confirmed she was born on [date] in Suva, Fiji and is currently single. She stated that when she was [age] years old her biological mother took her to her paternal grandparents in their village of [Village 1], about [distance] from Suva, where she lived until she came to Australia. Her grandparents supported themselves with subsistence farming.
The applicant’s father has [specified siblings], the applicant’s uncles and aunts, and while they all grew up in [Village 1], the family’s traditional village, they now work in Suva and have their own families. All the family, including the applicant’s cousins, normally get together in the village for special events such as her grandfather’s birthday and Christmas. The applicant is in touch with her relatives in Fiji, mostly her aunt.
The applicant’s grandmother died in 2003, and her grandfather is now very old ([age] years old) and living with the applicant’s aunt in Suva. The applicant is not certain who is now looking after the farm but believes it is probably her uncle.
The applicant’s father went to Australia in [year], before the applicant was born. He had [number] children, now adult, with the applicant’s late stepmother.
The applicant said she went to the local school in the village and enjoyed school and was sometimes successful in schoolwork, but she came across some difficulties when children would point her out because she was being brought up by her grandparents not her parents.
After completing school, she studied a three-month course in [occupation 1]. To do this, she went to Suva each day from the village and did her practical experience in a hospital. After completion of the course, she looked for work but could not find any locally.
She remained in the village looking after her grandfather in a subsistence lifestyle, helping at home, collecting firewood, doing the laundry in the river, cooking etc. and her father and stepmother continued to support her financially. In her leisure time, she helped at home and played [specified] sports with friends.
In 2013, the applicant came to Australia to visit her father and family, staying for one month. On return to Fiji, she went to her grandfather’s home and continued helping in the home and on the farm. She came again to Australia in 2014 for a short visit for Christmas and New Year.
In 2014, the applicant commenced a six-month course of study in [occupation 2] in Suva, but she did not complete the course because her visa for Australia was granted. The applicant was then [age] years old.
The applicant explained that she lives with her father and that she is in good health. She is happy to be in Australia because life is much easier than at home. Her father’s adult children, her half-siblings, are all living and working in Melbourne.
What does she fear?
The applicant told the Tribunal that she speaks with her relatives about life in Fiji and they all say that she should not go back to Fiji because life is hard there and secondly that she should stay with her father. She stated that it would be hard to return to Fiji because she has been here for seven years and will have to start over again.
She stated that she experienced difficulties before coming to Australia because there was very little opportunity to get employment. She had virtually no source of income, but her father and stepmother sent her money.
When asked about any other reasons she experienced hardship in Fiji, she said that she needs her real father and mother to be happy and that it is hard to face life without them. She said that being without them in Fiji discouraged her and in future this could make her commit suicide. In later follow-up about this claim the applicant said she had talked to her father about these thoughts. She had not sought support for her mental health when she was living in Fiji.
The Tribunal prompted the applicant to discuss any concerns about her safety. She said that worried her because as a woman in Fiji there is no-one to protect her should she be abused or raped.
She said there were no other reasons that she feared returning to Fiji but that she wanted to remain so she can help her family here.
Evidence of the applicant’s father, [Father A]
The applicant’s father told the Tribunal that he came to Australia before his daughter was born, looking for the opportunity to earn a living. He is [age] years old and still working. He lived together with his wife with whom he had [number] children.
He described returning to Fiji in 2009 and spending Christmas and New Year with all the family in the village. He saw the applicant there and was pained to realise that although he supported the applicant, he had not brought her up.
He stated that when he left Fiji, he asked his father and mother if he could take the applicant with him to Australia but that they did not agree because they said the applicant was not just a granddaughter to them, but their daughter, as dear to them as their own.
The applicant’s father stayed in touch with the applicant, contacting her in writing and by phone. He said that every time he contacted her, she insisted that she wants to join him in Australia and when his mother died in 2003, she felt more alone.
The applicant’s father said that he has great fear for the applicant if she has to return to Fiji because life in Fiji is not as easy as people think. His father is now [age] years old and dependent on his sister, and his brothers have families of their own and say that they cannot afford to have the applicant with them.
He fears the applicant will commit suicide in Fiji and stated that there are a lot of young people committing suicide because of the difficulties they face in having to care for themselves. He observed to the Tribunal that the applicant had told him that she had thought of taking her life a couple of times and he fears this will occur if she goes back to Fiji where she has limited support.
The applicant’s father told the Tribunal that his wife had died earlier this year of COVID-19 and that the applicant, who lives with him, now supports him at home.
Evidence of witness: [Partner A]
[Partner A] told the Tribunal that she is the partner of the applicant’s half-brother and that she had met the applicant around 2015, when the applicant came to be with her father for stability and support from them. She stated that the applicant would be supported financially wherever she was but that it is best if she is at home.
She understood that it was a struggle for the applicant when she was living in Fiji, because she received inconsistent support and experienced hardship through mistreatment and discrimination. In response to questions from the Tribunal about such experiences, the witness said the applicant was looked down upon, that there was nothing else, but that she felt devalued by these attitudes.

She said that she understood that the applicant maintains communication with family members in Fiji, mostly her grandfather.
[Partner A] stated that the applicant is an asset in her father’s household, very helpful and a big blessing to them all.
Evidence of [Brother A]
[Brother A] told the Tribunal that he didn’t know he had another sister until 2009 when he went to Fiji on a holiday. This was his first experience of his Fijian family where he met many first cousins, and he was later told one of the group was his sister. He felt a connection straight away and they fit in very easily together. He fully accepts her as his sister and knows her to have a kind caring heart and morals and values. Her presence in Australia has brought them much happiness and great support to his father.
He said that if the applicant returns to Fiji, life will be very hard. It would also be very hard on the family in Australia because she is their sister, and they love her dearly and appreciate everything she does to support his father and the family.
Oral submission to the Tribunal from the applicant’s representative
In an oral submission to the Tribunal, the applicant’s representative stated that he understands that the applicant may not have the basis of a claim for protection but because of the extreme hardship she will face when she returns to Fiji without relatives to provide support to her, he asked that the Tribunal also consider complementary protection sympathetically, as she has repeatedly talked about suicide, having lived a life of hardship, having been rejected by her mother and disowned by her father. He submitted that her risk of suicide is high given she would not have anyone to provide her with support in Fiji. It is contended that the psychological hardship she would suffer meets the definition of significant harm for complementary protection. In the event the Tribunal did not make such findings, it was submitted that it would be appropriate to refer the matter to the Minister.
Independent information
The DFAT Country Information Report on Fiji dated 20 May 2022 provides the following economic overview of Fiji:[6]
2.7 The World Bank defines Fiji as an upper-middle income country. Fiji is one of the largest economies in the Pacific region, but about a quarter of the size of the next largest, Papua New Guinea. Its per capita gross domestic product (GDP) is much higher than most Pacific neighbours’.
2.8 Tourism accounted for about 40 per cent of the pre-COVID-19 economy; the pandemic caused significant disruption. According to the Asian Development Bank, GDP growth was negative 15.7 per cent in 2020. Remittances from the diaspora, another important source of income, were also badly affected by the pandemic. Agricultural production, especially of fruits and vegetables, sugar and kava, is important to the economy but vulnerable to cyclones.
2.9 About 30 per cent of the population was living in poverty in 2019, according to World Bank data, but estimates of poverty rates vary and the full impact of the COVID-19 pandemic is not known. According to the International Labour Organization (ILO), subsistence farming and kin-based wealth redistribution leads to a lower rate of extreme poverty than might otherwise be expected.
[6] DFAT Country Information Report Fiji, 20 May 2022.
In regard to mental healthcare in Fiji, DFAT report the following:[7]
Mental health
2.13 The law provides for public mental healthcare but, in practice, it may not be available. Some support is available from nursing stations, health centres, general practitioners and hospitals. A public psychiatric hospital, St Giles, is located in Suva. Sources told DFAT there was an inadequate number of mental health professionals to meet demand. Telephone counselling and mental health CSOs provide services, and online resources from Australia and New Zealand might be used by Fijians. Drug and alcohol services are available at St Giles. The US Department of State 2021 Human Rights Report describes St Giles as ‘underfunded’. Sources told DFAT that facilities and treatment are basic and medication might be unavailable.
2.14 Like many countries, including Australia, there can be a societal stigma against mental health conditions in Fiji. This may limit support options from family. These attitudes are less common among the wealthy and the more highly educated. In spite of these challenges, people with intellectual and mental disabilities are more likely to be cared for at home than in a medical facility.
2.15 Other services for mental health patients might be available. There is an increasing number of counsellors (who are not psychologists or psychiatrists) and some non-government organisations provide counselling services. In practice, counselling services are not available in more remote areas and there is a lack of mental health services generally.
[7] DFAT Country Information Report Fiji, 20 May 2022.
Relevant to consideration of the circumstances of women in Fiji, the DFAT report observes the following:[8]
[8] DFAT Country Information Report Fiji, 20 May 2022.
Women
3.49 Fiji is a traditionally male-dominated society and traditional gender roles are well-entrenched. According to World Bank figures, the participation rate for women is the lowest in the Pacific region at 35 per cent of the total labour force (by contrast, Australia’s rate is about 46 per cent of the total labour force). These figures are from 2019 and the impacts of the pandemic on the largely feminised tourism sector may have made the situation worse.
3.50 The 2021 US Department of State Human Rights Report notes that there are no laws that prevent women from participation in political processes, but that traditional gender roles restrict that participation in practice for iTaukei (meaning “indigenous owners” in Fijian/indigenous Fijians) women. Similarly, iTaukei women are entitled to inherit land equally to men, but in practice this does not occur and many women work on land that is owned by their male relatives.
3.51 A study by the Fiji Women’s Crisis Centre (FWCC) from 2013 (the most recent study by the FWCC) found 64 per cent of women who had ever been in a relationship had experienced domestic violence. In October 2020 the then Minister for Women, Children and Poverty Alleviation, Mereseini Vuniwaqa, said that 72 per cent of women in Fiji might experience violence in their lifetime. Vuniwaqa said that violence in Fiji affected women from all socio-economic backgrounds. She also noted that in 2020 (to October) police had recorded 1,545 cases of violence against women. Elsewhere, Vuniwaqa has acknowledged that Fiji’s rate of violence against women and girls is among the highest in the world. The media reported 10 deaths from domestic violence in 2020.
3.52 Reported cases of sexual assault are also high. According to media reports, 531 cases of rape were recorded against 240 victims, of whom 165 were minors, in 2020. The Fiji Women’s Rights Movement analysed rape cases in the High Court in 2020 and found a male perpetrator in all 81 cases and an average age of victims of 14 years. Spousal rape is illegal under Fijian law. In April 2021, a man who sexually assaulted his wife when she ‘refused intimacy’ was sentenced to a 6-year and 10-month prison term by the High Court in Lautoka.
3.53 Police protection is available but not consistently. Some police stations do not have the equipment or transport to deal effectively with cases of gender-based violence. Women who seek help from advocates (for example, the FWCC Centre runs a hotline) may receive more assistance.
3.54 A magistrate can issue restraining orders. These orders operate similarly to apprehended violence orders in Australia, with conditions that aim to protect a person from assault, threats, intimidation, ‘abusive, provocative or offensive’ behaviour or the procurement of those offences by another person. These orders are enforced by police and provide some protection.
3.55 An audit by the Fiji Auditor General in 2019 found that there is ‘inconsistency’ in the application of legislation that prohibits violence against women. It notes ‘pressure on women to reconcile with their husbands/partners’ by police or society, as well as a lack of knowledge among women about their rights. Fiji Police have a ‘no drop’ policy for domestic violence. This means that cases cannot be dropped by police nor be withdrawn by victims; they must be investigated. This is to prevent victims from being pressured by family to drop the cases. In practice, the Auditor General found (and in-country sources confirmed to DFAT) that the policy was not implemented in all cases and that police did sometimes drop domestic violence cases or were unhelpful or even hostile to victims.
3.56 NGOs provide some services to women and girls who are subject to violence. For example, the FWCC offers a 24-hour telephone crisis counselling service that can coordinate emergency assistance throughout the country. Lawyers and counsellors might also be available to victims. Women’s domestic violence services reported an uptick in demand during the COVID-19 pandemic. Cyclones, which cause people to shelter together in their homes, have had a similar effect of increased violence.
3.57 Women experiencing violence in the outer islands or rural areas may have more difficulty escaping violence. Shelters are unlikely to exist in remote areas and a family member may be relied upon for protection. Conversely, family ties and loyalties and traditional hierarchies can protect perpetrators. Relocation is not necessarily helpful; Fiji is relatively small and sometimes people can be tracked down through kinship networks. DFAT assesses that women who experience domestic violence are, by definition, at a high risk of violence, and a moderate risk of discrimination in the form of lack of access to protection.
DFAT report the following concerning the operation of the Fiji Police Force (FPF):[9]
[9] DFAT Country Information Report Fiji, 20 May 2022.
5.6 The Fiji Police Force (FPF) is a national police force that covers the whole country. The US Department of State Overseas Security Advisory Service 2020 Crime and Safety Report assesses Fiji police as ‘professional’ and notes recent improvements in training and accountability. It notes that police may not be based in vehicles and may not arrive in time to disrupt crimes in progress but assesses that ‘victims of crime can expect fair treatment with dignity’.
5.7 Police are generally well-resourced by the Government and receive funding and training from overseas aid partners. The police are, in general, disciplined (but see comments on violence below). Policing is conducted on a community policing model and police are generally actively engaged with the communities they serve.
5.8 Corruption in the FPF is reported, but DFAT understands that it is not widespread. There are some allegations of corruption and DFAT is aware of pockets of corruption that have later been exposed and investigated. Complaints about the FPF are made to the Human Rights and Anti-Discrimination Commission.
5.9 Policing in outer islands and more remote places is more difficult because of the greater influence that the chief-based hierarchy has in the outer regions. Police are generally not deployed to their home communities to avoid conflict with traditional hierarchies.
5.10 The Fiji Police Force overall has the capacity to protect individuals from societal harassment, discrimination, and violence, and police are usually effective in carrying out their role in day-to-day crime detection, investigation and prevention.
Police violence
5.11 Police violence is often reported in the media and by human rights groups. In-country sources told DFAT that assaults in custody occur, and that monitoring and accountability systems to prevent such assaults are either not implemented or not implemented effectively. The situation is worse outside of cities. Convictions often rely on confessions, which may be extracted through beatings. DFAT understands that the situation is improving with courts dismissing cases that rely on evidence obtained through violence.
5.12 According to a 2020 article in The Guardian, the acting Commissioner of Police condemned ‘indiscipline’ among the ranks and ordered an investigation into the death of 46-year-old Mesake Sinu, who police claimed jumped to his death from a second-storey window. Critics allege that police beat Sinu to death. In the same article, The Guardian reported figures it had obtained showing that 400 charges of ‘serious violence’ were laid against police between May 2015 and April 2020, which included allegations of rape and homicide.
5.13 Police misconduct, including excessive violence, is regularly investigated with a full range of censures routinely used, from disciplinary measures to dismissal and criminal charges being placed. In most cases, there is reasonable action taken when a complaint is reported.
5.14 Five police officers were charged in 2020 after they threw a villager off a bridge. Four officers were allegedly involved in the assault and one other attempted to interfere with witnesses. In April of the same year, an opposition member of Parliament was arrested after he posted a video on Facebook in which he spoke about the incident.
5.15 A viral video published on social media in May 2021 showed two police officers holding a man’s head to the ground, with his arms held behind his back, while pepper spray was sprayed in his eyes. The man was wanted for possession of marijuana and had allegedly resisted arrest.
5.16 With the increase in the number of people with smartphones there has been an increase of similar videos posted to video-sharing platforms such as YouTube. Outside of prominent examples such as those mentioned above, in-country sources told DFAT that police violence is much less likely to occur in public, largely because people will film such events and the media will report on them.
With regard to employment and welfare, DFAT provide the following:[10]
Employment and welfare
2.18 Most Fijians work in the informal sector, especially in the tourism, agriculture and aquaculture industries. According to estimates by the ILO, about two thirds of Fijian workers are not employed formally; this number might be rising due to reduced hours and job losses following COVID-19 disruption.
2.19 The minimum wage is currently FJD2.68 (about AUD1.75) per hour and employers are required to display the minimum wage in workplaces. There are ongoing discussions about raising the minimum wage that have not been implemented at the time of writing. According to the 2021 US Department of State Human Rights Report for Fiji, the minimum wage did not provide a ‘decent standard of living for a worker and family’, and inspectors responsible for enforcement did not have capacity to ensure that workers were paid correctly. In-country sources told DFAT underpayment occurs and legal remedies are not always effective.
2.20 The tourism sector was significantly disrupted by the COVID-19 pandemic. Some staff were retained during the pandemic, but many lost their jobs or returned to home regions. About 60 per cent of workers in the sector (pre-pandemic) were women. Relocation to work in tourist areas is common. The sector re-opened to international visitors in December 2021.
2.21 Fiji’s labour force participation rate in 2016 (the most recently available statistics) was about 58 per cent. More than 70 per cent of men and about 40 per cent of women participate in the labour force. The official unemployment rate was about 4.8 per cent in 2020. Youth unemployment is much higher: 14.8 per cent in 2019, according to the Asian Development Bank and the ILO. These figures do not take COVID-19 disruption into account; the true rates of unemployment and youth unemployment are probably higher.
2.22 The pension system consists primarily of the Fiji National Provident Fund (FNPF), which covers only formal sector workers. Sources told DFAT that some people in the informal sector do not have bank accounts and thus would not be able to participate in the FNPF. Other pensions for people with disability, children and the very poor also exist, as do bus fare subsidies and food vouchers distributed by the Ministry of Women, Children and Poverty Alleviation. The amounts paid under various schemes (not including food vouchers and bus subsidies) is typically about FJD35-90 (AUD20-60) per month.
2.23 iTaukei generally have large kinship networks with extended family often providing support when a family member is in need. It is uncommon for elderly people to live alone; they more commonly live with family who will support them. Even in times of high unemployment, such as during the COVID-19 pandemic, many iTaukei are able to move back to traditional villages and participate in subsistence living communities. These family resources may have been stretched during the COVID-19 pandemic, given the large scale of economic disruption with more family members seeking support. While family and kinship ties are less pronounced in Indo-Fijian families (iTaukei families have formed these networks over a much longer time) they still exist; extended family groups, and associated welfare support, may also be present among Indo-Fijian families. Remittances are an important part of the Fijian economy and may have been a source of support for some Indo-Fijians following recent high levels of outward migration.
Assessment
[10] DFAT Country Information Report Fiji, 20 May 2022.
Identity and country of reference
Based on a copy of the applicant’s passport which was provided to the Department and in the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of Fiji and not a national or citizen of any other country. The Tribunal accepts that she does not have a right to enter and reside in any country other than Fiji. Therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection by s 36(3) of the Act. The Tribunal also finds that Fiji is the applicant’s ‘receiving country’ for the purposes of s 36(2)(aa).
General
On the basis of the consistent, direct and open evidence of the applicant at hearing, corroborated by her witnesses, her father, half-brother and half-brother’s partner, the Tribunal finds that the applicant was born on [date] (she is now [age] years old) in Suva, Fiji. The Tribunal finds the applicant is an indigenous Fijian woman and Christian.
On the same basis, the Tribunal accepts that the applicant was taken by her mother to live with her paternal grandparents in the family home village of [Village 1], about [distance] from Suva, when she was [age] years old. The Tribunal accepts that her mother severed ties with her and that in spite of the applicant’s efforts when she was a teenager, her biological mother did not re-establish a relationship with her.
The Tribunal accepts that after completing school, the applicant studied a three-month course in [occupation 1], going to Suva each day from the village. The Tribunal accepts that she could not find work locally so she remained in the village looking after her grandfather, helping at home, collecting firewood, doing the laundry in the river, cooking etc., receiving financial support from her father and stepmother. The Tribunal accepts that she later commenced a six-month course of study in [occupation 2] in Suva.
The Tribunal accepts that the applicant’s grandmother died in 2003 and she remained living with her grandfather in [Village 1]. The Tribunal accepts that she continued to receive financial support from her father and stepmother. The Tribunal accepts that the applicant visited her father and family twice before her last arrival in Australia in 2015 at the age of [age].
Stigma arising from family background
The Tribunal acknowledges that the early rejection of the applicant by her mother has been very hard for the applicant to manage psychologically. The Tribunal accepts the applicant’s evidence that she has suffered low self-esteem, and feelings of grief, confusion and guilt over the loss of the mother-child bond. The Tribunal also accepts that the applicant suffered emotionally from the absence of her father although he continued to be present in her life through letters, phone and financial support. However, on the basis of the evidence before it, the Tribunal considers that the applicant was cared for, loved and protected by her grandparents as their own. Taking into account the applicant’s evidence at hearing about her school and adult years in Fiji, the Tribunal is also satisfied that she was supported economically, had access to basic services such as education, and had the emotional and psychological support of her grandparents and friends.

In her written statement, the applicant claims that she was the subject of taunting and abuse at school, because she was raised by her grandparents rather than her biological parents which is not customary. The Tribunal accepts that the applicant was taunted by some of her school mates because she was not raised in a traditional family, and that this presented psychological challenges for the applicant. However, on the evidence before it, the Tribunal considers she was able to enjoy school, had friends and the strong support of her grandparents, and that she was included in the social life of the school, community and her extended family. On this basis, the Tribunal is satisfied that the treatment she received from some school mates, while unpleasant, did not constitute ‘continuing psychological torture’ as claimed and did not amount to serious harm within the meaning of s 5J(4), or amount to significant harm as defined in s 36(2A) of the Act. The Tribunal finds she was not subject to persecution or significant harm from school mates or anyone else arising from the stigma of being raised by her grandparents as a child growing up in Fiji.
The applicant claims that if she returns to Fiji, she will again experience abuse, including being looked down upon, for reason of being raised without her mother. At hearing, the applicant’s responses to enquiry about the mistreatment she feared on return to Fiji for this reason, such as the nature of abuse, were limited. She stated that growing up without the love of a mother and father has left her with feelings of mistrust in Fiji, whereas she is safe in Australia. However, she indicated that she had not been the subject of harm as an adult from any agent for reason of her family background. As above, the Tribunal acknowledges that the applicant has been deeply affected by her mother’s rejection of her, but on the evidence before it, the Tribunal does not accept that she has been the subject of abuse for this or any other reason as an adult. The Tribunal also considers that the applicant described a life where she was able to study, received the care and protection of her grandparents and family, was included in family events, and enjoyed leisure time, including sport with friends. The Tribunal is satisfied that as an adult she was not the subject of abuse or harassment in Fiji for reason of her family background. The Tribunal is satisfied the applicant was not subjected to serious or significant harm in Fiji for this reason.
Looking to the future, on the evidence before it, the Tribunal is satisfied that there is not a real chance the applicant will suffer persecution involving serious harm from the community for reason of her family background should she return to Fiji now or in the foreseeable future. On the same basis, the Tribunal is satisfied there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Fiji, there is a real risk that she will suffer significant harm for this reason.
Gender-based discrimination and violence
The Tribunal now considers the applicant’s claims that she would be subjected to discrimination, including denial of access to basic services by the Fijian authorities and discrimination in getting employment in Fiji, and faces a threat to her personal security and liberty on return to Fiji due to her vulnerability to abuse as a single woman without home and male protection.
While the Tribunal accepts the applicant is a single woman of [age] years, the Tribunal does not accept the applicant is without male or family protection, or that she will be without a home if she returns to Fiji. In reaching this conclusion the Tribunal considers that the applicant’s written claim, that she was hated, abandoned and disowned by her relatives in Fiji and that she has no-one to draw support from, is not supported by her oral evidence. As discussed above, the applicant indicated that her grandparents cared for with considerable devotion and that after the death of her grandmother she continued to live in the family home with her grandfather until she departed Fiji. The Tribunal also takes into account the applicant’s evidence at hearing indicating that she has always been accommodated and provided for by her immediate and extended family. In this regard, the Tribunal notes the applicant has many paternal uncles, aunts and cousins on her father’s side, and that all the members of her extended family, the applicant included, maintain familial contact, getting together for family, cultural and religious celebrations in the family village. The applicant also indicated that she continues to maintain relationships with her relatives in Fiji, particularly her aunt who is caring for her aging grandfather. On this evidence, the Tribunal does not accept the applicant has been disowned by her relatives, or that she has no relatives, or that she has no-one to draw support from in Fiji.
On the basis of the applicant’s oral evidence, the Tribunal also formed the view that her relatives have some resources (such as the family home in the village) and are able to provide the applicant with some practical and welfare support. The Tribunal accepts that the applicant’s relatives would be unable to provide financial support to the applicant because they experience financial pressures themselves. However, the Tribunal takes into account evidence at hearing that the applicant would continue to be financially supported by her Australian family wherever she was, and also notes that the applicant may have the opportunity to contribute to her own support through employment or as she has done in the past, rely on participation in subsistence living in the family’s traditional village.
In reaching the conclusion that the applicant will have the support and protection of her extended family in Fiji, the Tribunal also takes into account country information above, discussed with the applicant, that in line with iTaukei cultural norms, the applicant could expect to receive practical and welfare support from her large kinship networks. In this respect, the Tribunal considers that as a single woman, she would be incorporated into her extended family, and taking into account that the applicant has always been accommodated and provided for in the past, the Tribunal is satisfied that the applicant’s family would make arrangements for appropriate accommodation and support for the applicant in Fiji.
The Tribunal is satisfied on the basis of the evidence before it that the applicant’s immediate and extended family in Fiji will continue to provide appropriate accommodation and family, including male, support and protection. The Tribunal does not accept that the applicant will be returning to Fiji as a vulnerable single woman without male protection.
Gender-based discrimination
The Tribunal has considered whether the applicant faces a real chance of serious harm or a real risk of significant harm on return to Fiji arising from discrimination against her as a single woman in the context of the finding above that she will have the appropriate protection and support of her extended family network in Fiji.
In this consideration, the Tribunal has had regard to DFAT country information above, discussed with the applicant at hearing, that while Fiji is a traditionally male-dominated society and traditional gender roles are well-entrenched, there is little official discrimination against women in Fiji. The DFAT information indicates that the law is not discriminatory against women and women in Fiji have the same rights and status as men under family law and in the judicial system, and that the law provides for non-discriminatory provision of services. That said, the country information before the Tribunal, put to the applicant, indicates that cultural gender role beliefs restrict participation of most indigenous women in political life and could account for the relatively low participation rate for women in the labour force. In this regard, the Tribunal accepts that women in Fiji experience gender disparity and a moderate level of societal discrimination.
In considering whether the applicant faces discrimination amounting to serious or significant harm as a single woman, the Tribunal takes into account the applicant’s particular circumstances. On the evidence before it, including the evidence of the applicant’s witnesses, the Tribunal is satisfied the applicant did not face discrimination in accessing basic services, or in any other area, in Fiji. At hearing, the applicant said that as a single woman in Fiji, it is easy for people to point their fingers at her and abuse her, but when asked, she could provide no evidence that she had been subjected to such conduct, or any other discriminatory conduct, as an adult. She indicated that she has never been denied access to basic services and that she could access basic services on return to Fiji. The Tribunal also notes that she did not face discrimination in obtaining education at school, or in accessing vocational courses later in Suva.
In her written claims, the applicant states she will be subjected to discrimination in employment in Fiji such that her capacity to subsist would be threatened. At hearing, the applicant told the Tribunal that she did not obtain employment after her first course because she could not find work locally in her village outside of Suva. On the evidence of the applicant, the Tribunal is satisfied that the reason she did not obtain employment at that time was that work in her field of [occupation 1] was not available in her local area, not for reason of discrimination. While the Tribunal acknowledges that the country information indicates that women may encounter discrimination, the Tribunal considers there is no evidence before it that the applicant has suffered discrimination, or as claimed ‘gross discrimination’ in employment or more general societal discrimination in Fiji.
On the evidence before it, including independent country information discussed with the applicant, the Tribunal is satisfied that there is not a real chance or a real risk the applicant will suffer significant economic hardship in Fiji that threatens her capacity to subsist, for reasons relating to her gender or for any other reason. The Tribunal is further satisfied that any societal discrimination the applicant may encounter on return to Fiji as a single woman would not amount to serious or significant harm. The Tribunal is satisfied that there is not a real chance the applicant will suffer persecution involving serious harm due to gender-based discrimination by Fijian authorities, the community or any other agent, should she return to Fiji now or in the foreseeable future. On the same basis, the Tribunal is satisfied there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Fiji, there is a real risk that she will suffer significant harm for this reason.
Gender-based violence
The Tribunal has considered whether in the applicant’s circumstances as accepted, as a single woman, living within an extended family network, she faces a real chance or a real risk of gender-based violence, including sexual violence, rape and abuse.
The Tribunal has considered the information provided in the DFAT report set out above, discussed with applicant, indicating that Fiji is generally stable and secure and that crime rates, especially for violent and organised crime, are generally low. DFAT also indicate that while organised crime exists in Fiji, it is not large-scale and is unlikely to affect people’s day-to-day lives. Considering the country information before it, the Tribunal does not accept the applicant’s claim that she would be vulnerable to abuse as a single woman in Fiji because Fiji is a politically unstable country.
However, the Tribunal accepts DFAT’s assessment that domestic and gender-based violence is a serious problem in Fiji. Regarding the applicant’s claim to have a real chance of persecution involving serious harm for this reason, the Tribunal has considered the applicant’s evidence indicating that she has not been subjected to such harm in the past in Fiji. At hearing she stated that she bases her concern about facing a risk of gender-based violence on media reports. On the evidence before it, the Tribunal is satisfied that the applicant has not been personally at risk of domestic or gender-based violence in the past or that there is evidence to suggest that she will be targeted for such harm on return to Fiji. On this basis, the Tribunal is satisfied that the applicant does not face a real chance of persecution involving serious harm due to gender-based violence from the community or any other agent, should she return to Fiji now or in the foreseeable future. On the same basis, the Tribunal is satisfied there are not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Fiji, there is a real risk that she will suffer significant harm for this reason.
The Tribunal has also considered the applicant’s written claim that she would not be protected by Fijian authorities in the event of violence against her because they are male-dominated, corrupt and do not protect females. In response to DFAT information above put to the applicant indicating that the FPF is a ‘professional’ force, generally well-resourced and trained, the applicant stated that she could seek help from her family or police if she feared harm, but she didn’t know if they could help. She said that in Fiji it is well-known that people doing the right thing are being assaulted by the police who should be looking after them, and for this reason, she does not know what the police would do if she went to them. In view of the DFAT information above discussed at hearing, the Tribunal acknowledges that accusations of police violence are commonly reported and regularly investigated. However, the Tribunal considers the information indicates that the level of police misconduct is improving and occurs in situations such as where people are in custody or in relation to investigations. The Tribunal is satisfied that the chance the applicant would be subjected to such conduct by police if seeking assistance is remote.
The Tribunal also acknowledges that the DFAT report indicates that some women may experience barriers to accessing protection, such as women in remote locations. However, the Tribunal accepts the DFAT assessment that the FPF overall has the capacity to protect individuals from societal harassment, discrimination and violence, and police are usually effective in carrying out their role in day-to-day crime detection, investigation and prevention. As discussed with the applicant at hearing, DFAT advice also indicates that there are progressive laws, such as the ‘no drop’ policy, in place in Fiji to protect women and that there are also NGOs available to assist women experiencing gender-based violence. Also discussed with the applicant, and her father, at hearing was the claim that corruption in the police force presents a barrier to obtaining protection from police. The applicant’s father stated that friends tell him that corruption persists in the FPF. However, in this respect, the Tribunal gives weight to the independent assessment of DFAT that corruption is not widespread and concludes that the applicant would not be denied protection if needed for this reason.
Having regard to the country information before it, the Tribunal is satisfied that the applicant would have access to institutions and services related to security, protection and justice, on return to Fiji. The Tribunal does not accept the claim that she could not seek help from Fijian authorities because they are helpless. The Tribunal is satisfied that in the circumstances of the applicant, a single woman within an extended family in Fiji, she can access the durable protection of an appropriate criminal law, effective police force and an impartial judicial system. The Tribunal finds that effective protection measures are available to the applicant. The Tribunal finds that she does not have a well-founded fear of persecution on this basis. The Tribunal is further satisfied the applicant could obtain protection such that there would not be a real risk that she would suffer significant harm from gender-based violence or any other reason as a single woman in Fiji.
Economic hardship
In considering the applicant’s claims to face economic hardship in Fiji, the Tribunal acknowledges DFAT country information discussed with the applicant that while Fiji is one of the most developed and connected of the Pacific Island economies, poverty is widespread with about 30 per cent of the population living in poverty in 2019. The Tribunal acknowledges that the Fijian economy has also been affected by COVID-19. The Tribunal also acknowledges the applicant’s wish expressed at hearing to remain in Australia where she has employment opportunities and will be able to look after herself instead of relying on others.
The Tribunal accepts the applicant’s oral evidence that she has little education, and her employment opportunities would offer only low income, and that she may not be able to live in the economic comfort that she enjoys in Australia. The Tribunal accepts that it is possible the applicant would have difficulty finding employment in Fiji. However, the Tribunal considers that the country information indicates that any failure to provide the applicant with employment is due to the Fijian economy rather than any intentional act or omission. The Tribunal also finds that the risk of harm due to lack of employment in Fiji is one faced by the population of Fiji generally and not faced just by the applicant only.
As discussed above, the Tribunal is also satisfied the applicant would continue to obtain financial and practical support from her family in Australia and Fiji. As discussed at hearing, the independent DFAT information above also indicates that she could supplement her income in a small way through social welfare assistance offered in Fiji, although the Tribunal accepts the applicant’s father’s comment that this is very limited. Overall, the Tribunal is satisfied that she will have access to some financial resources and appropriate arrangements for her accommodation and welfare if she is required to return to Fiji.
The Tribunal has considered the applicant’s circumstances on return to Fiji and is satisfied the applicant does not face a real chance of serious harm as instanced in s 5J(5), such as significant economic hardship that threatens her capacity to subsist, denial of access to basic services, where the denial threatens her capacity to subsist, or denial of capacity to earn a livelihood of any kind, where the denial threatens her capacity to subsist. Further the Tribunal finds that any economic difficulties the applicant may experience are not for a s 5J(1)(a) reason. The Tribunal finds the applicant does not have a well-founded fear of persecution arising from her economic circumstances.
In considering whether there would be a real risk that the applicant will suffer significant harm in Fiji for economic reasons, the Tribunal has considered whether there is a real risk that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on her, she will be subjected to torture or cruel or inhuman treatment or punishment or she will be subjected to degrading treatment or punishment if she returns to Fiji. As discussed above, the Tribunal is satisfied the applicant has access to financial support from family in Australia, such as support from her father, and welfare support from her extended family in Fiji. The Tribunal is satisfied that the applicant’s economic circumstances in Fiji will enable her to support herself. Considering all the evidence before it, the Tribunal is satisfied that there is not a real risk the applicant will suffer significant harm as defined at s 36(2A) in Fiji arising from her economic circumstances. Accordingly, the Tribunal is satisfied the applicant does not have a real risk of significant harm in Fiji on this basis.
Psychological impact of return on the applicant’s mental health

The Tribunal has considered the psychological impact of returning to Fiji on the applicant, in particular separation from her father and half-siblings, which she says will be ruinous, and adjustment to life in Fiji after an extended period (seven years) of stay in Australia. As above, the Tribunal accepts that the applicant has suffered psychological hardship as a result of the rejection of her mother and separation from her father and has spoken to her father about suicidal thoughts. The Tribunal accepts the applicant has drawn support from living with her Australian family. On the very limited evidence available to it regarding the applicant’s mental health, the Tribunal accepts that leaving her father and half-siblings will have a negative impact on her mental health. The Tribunal further accepts that the applicant may experience challenges adjusting to life in Fiji after an extended period away.
In considering whether the applicant faces persecution involving serious harm on return to Fiji for these reasons, the Tribunal notes first that the applicant is familiar with the Fijian culture and way of life and has found that she will have the support of her extended family in Fiji and is satisfied these factors will assist her with adjusting again to life in Fiji. The Tribunal does not accept that the applicant faces a real chance of serious harm or a real risk of significant harm on return to Fiji for this reason.
Regarding mental health concerns arising from separation from her father and half-siblings, the Tribunal has also considered DFAT country information above, discussed with the applicant, that the law provides for public mental healthcare that could assist the applicant manage any mental health concerns arising from her return to Fiji but accepts that in practice limited mental health support is available in Fiji for reason of insufficient availability of services. The Tribunal accepts that the lack of public mental healthcare affects all residents who have similar mental health conditions as the applicant. The Tribunal notes that inability on the part of a state to prevent harm is not sufficient to establish a refugee nexus. In this instance, it must be shown that the failure on the part of the state to prevent the relevant harm is the result of toleration or condonation of the conduct, not simply inability to prevent it. While the independent evidence indicates that Fiji’s mental health system faces a number of challenges, as outlined above, the Tribunal finds no independent evidence to suggest that the lack of mental healthcare is the result of toleration or condonation by the Fijian authorities.
While in Fiji there are inadequacies in the Fijian healthcare system and there is an inability to access mental health treatment for all those who need it, the Tribunal is satisfied that the Fijian state does not withhold mental health treatment for one of the reasons enumerated in s 5J(1)(a). Rather it is because relevant medical services for mental health are not available for the whole population. The Tribunal finds the applicant does not have a well-founded fear of persecution on this basis.
Based on the evidence before the Tribunal, the Tribunal further finds that the inadequacies of the Fijian mental healthcare system or the inability to access mental health treatment in Fiji that the applicant may face on her return to Fiji does not amount to significant harm as defined. It does not constitute the carrying out of the death penalty, the arbitrary deprivation of life, cruel or inhuman treatment or punishment or degrading treatment or punishment. The country information indicates that any failure to provide the applicant with relevant and appropriate mental healthcare treatment or support will be due to the Fijian economy rather than any intentional act or omission. The Tribunal also finds that the risk of harm due to inadequate mental healthcare services in Fiji is one faced by the population of Fiji generally and not faced by the applicant personally.
Having considered all the applicant’s claims, individually and cumulatively, the Tribunal finds that there is not a real chance the applicant would suffer persecution involving serious harm on her return to Fiji. The Tribunal finds the applicant does not have a well-founded fear of persecution.
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the complementary protection criterion in s 36(2)(aa). The Tribunal is not satisfied that any difficulties the applicant may be subjected to, on her return to Fiji, would amount to significant harm as defined. Therefore, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that she will suffer significant harm.
Consideration of referral for Ministerial intervention
The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 417 of the Act which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.
The guidelines include the following criteria as to the use of intervention powers:
· where there are compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident;
· where there are compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person.
In relation to referral for Ministerial intervention, the applicant submits that there are strong compassionate circumstances in this case that a failure to recognise may result in continuing hardship to the Australian family unit and have severe psychological implications for the applicant. The Tribunal largely agrees with those submissions. The Tribunal is satisfied that the applicant’s father is an Australian citizen and that since the death of his wife from COVID-19 in February 2022, the applicant provides him with strong practical and emotional support. The Tribunal also considers that the applicant has been deeply affected by the absence of her parents, and that there could be significant emotional and psychological consequences of returning to Fiji for the applicant who, while having support from relatives, would not have the support of her immediate family members, her father and siblings.
The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in departmental policy ‘Minister’s guidelines on ministerial powers (s351, s417 and s501J)’ and will refer the matter to the Department.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
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 criteria in s 36(2).
decision

102. The Tribunal affirms the decision not to grant the applicant a protection visa.
Amanda Paxton
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 4887

30 November 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction