1804109 (Refugee)

[2023] AATA 4578

1804109 (Refugee) [2023] AATA 4578 (27 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:Suzette Pereira

CASE NUMBER:  1804109

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Tania Flood

DATE:27 November 2023

PLACE OF DECISION:  Sydney

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

(i)The applicant satisfies s 36(2)(a) of the Migration Act; and

(ii)The other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of their membership of the same family unit as the applicant.

Statement made on 27 November 2023 at 11:00am

CATCHWORDS

REFUGEE – protection visa – Fiji – particular social group – women – victims of family violence – gender-based violence – forcible removal of children – state protection – Apprehended Violence Orders in Australia – custody of the children in Fiji – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs (‘the Department’) on 5 February 2018 to refuse to grant the applicants Protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants who claim to be citizens of Fiji, applied for the visas on 16 November 2016. The delegate refused to grant the visas on the basis that the first named applicant is not a person in respect of whom Australia owes protection obligations. The second, third, fourth, fifth and sixth applicants were refused to be granted visas because they were not members of a family unit of a non-citizen who holds a Protection visa of the same class applied for in this application and do not engage Australia’s protection obligations.

3. The first named applicant appeared before the Tribunal on 9 August and 17 November 2023 to give evidence and present arguments.   She was represented in the proceedings.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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.

8. 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

9. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in this case is whether the applicants are people in respect of whom Australia has protection obligations.

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

12. The Tribunal has before it three Department files.

13. Department file [number] contains copies of signed Minister Intervention forms for the third and fourth named applicants dated 31 March 2017, a notification letter of Protection visa barred to applicant dated 1 November 2016, application forms for a Protection visa dated 29 August 2016 for the first, second, third, fourth, and fifth named applicants and first named applicant’s husband, copy of the first named applicant’s birth certificate, Fijian marriage certificate, and copies of the second, third, fourth, fifth named applicants and the first named applicant’s husband’s [Country 1] passports’ biodata pages.

14. Department file [number] contains copy of the first named applicant’s [Country 1] visa, national ID and Fijian passport, first named applicant’s statement of claim dated 10 November 2017 requesting to have her husband removed from her Protection visa application on domestic violence grounds, a copy of the sixth named applicant’s NSW birth certificate, a natural justice letter dated 9 August 2017 from the Department to the first named applicant’s spouse requesting to provide information of the continuous relationship with the first named applicant, a copy of Fijian marriage certificate and his foreign passport, undated letter from the first named applicant requesting the Department to withdraw her husband from her Protection visa application, a copy of a NSW bond order for the first named applicant’s husband dated [in] October 2017, a copy of an Apprehended Violence Order (AVO) dated [in] June 2017, a copy of an AVO dated [in] June 2017, a copy of application forms for a Protection visa for the third, fourth and fifth named applicants along with copies of their foreign passports.

15. Department file [number] contains a copy of the delegate’s decision record dated 5 February 2018, the Department’s request for prior Protection checks for the applicant and five dependent children who all hold dual nationality or the right to reside in and enter a third country.

    First named applicant’s background

16. In her 29 August 2016 application, the first named applicant (the applicant) provided the following particulars.

17. She is from [town and province names], Fiji. She is married and has four children. She is a native Fijian. She identifies with the Mormon faith. She is a fluent speaker, reader, and writer of the English, Fijian and [Language 1] languages. She declared she lived from [specified year] to 2012 in Suva and from 2013 to 2016 in [Province 1 of Country 1].  She declared she first arrived in Australia holding a Visitor visa [in] June 2016. In Suva, she previously worked as [an occupation 1] and in a [business 1].

    First named applicant’s claims for protection

18. In her first (deemed invalid) 29 August 2016 application, the applicant claimed that she associated with Ms Oni Kirwin, and therefore, the Bainimarama had warned of the harm awaiting if she, and others supporting the same cause, returned to Fiji. She stated she was a supporter of the Christian states of Nadroga-Naros and Ra which was an issue closely monitored by the government, the Bainimarama regime. Support for these two states was perceived as sedition and so she was perceived as seditious. She feared police and military brutality awaited her including torture, rape, and death in custody. She stated that police had no power to protect her as the government was over-militarised.

19. In her valid 15 November 2016 application, the applicant claimed that because of her support for the two Christian states, her membership of the Pacific Indigenous Samaritan Association and Fiji Native Government in exile in Sydney who seek to survive as a race, she feared harm at the hands of the Fijian state. She claimed that she could not return to Fiji because there was no rule of law, no independent judiciary and freedom of speech. She claimed that because of her views she would be perceived as seditious. She claimed that her ethnic group had been killed by the Khaiyum; that her religion, land and rights had been taken away by Khaiyum.

    Protection visa interview and the delegate’s decision

20. Regarding the written claims outlined above, the applicant stated clearly on two occasions when interviewed by the delegate that these claims were made on her behalf by a charity organisation that helps Fijian people with applications for Protection visas. She stated that these written claims were not her claims and that she had no interest in either the two Christian sovereign states of Nadroga - Navosa and Ra; or the Pacific Samaritan Association Inc; or the Fiji Native government in exile. It was clarified with the first named applicant that the claims contained in her application for the protection visa were not genuine. She stated that her claims were about domestic violence at the hands of her husband; however, as her husband was in attendance at the time of her written application she could not express her real claims and had to wait until later to lodge her true statement of claims. The claims in relation to political opinion were not considered by the delegate.

21. The applicant introduced a new claim stating that she had endured domestic violence at the hands of her husband and during the interview with the delegate she stated that she had reported her husband’s beating and abuse to the authorities. She stated that the [Province 1] police had arrested her husband and her case was transferred to [City 1] police where she saw a lawyer who warned her that her husband could be jailed for 12 months if he harmed her again. The applicant said that the police warned her to leave her husband. She stated she had a court order against him and that she had the facility that if her husband harmed her again, she could seek legal protection. However, after her husband harmed her and her complaining to the police they did not do anything. She acknowledged that she separated from her husband and while living separated she learnt that her children were unwell which encouraged her to return to live with her husband.

22. The applicant stated that she was hospitalised and sought medical treatment for the injuries her husband caused. She said she could provide supporting evidence of this after getting it translated from [Language 1] into English. The applicant also stated she could provide supporting evidence of her interactions with the police and courts in [Province 1]. The delegate afforded one month to provide the evidence to the Department, however, no evidence was submitted by the applicant.

23. The applicant stated that while in Fiji she also had access to police protective measures against her husband. That when he physically abused her again, she reported him to the police and he was arrested and asked to leave the country. However, she willingly returned to [Province 1] because she missed the one child she allowed her husband to take with him to [Province 1].

24. The delegate found that the applicant had access to strong and protective legal measures against domestic abuse in both [Province 1] and Fiji. That she was able to follow the process but decided to willingly return to the family home despite having been told by everybody to leave her husband and to willingly place herself at risk.

25. Regarding her economic fears or concerns for returning to Fiji, the applicant stated at interview that her children’s education in Fiji was one of her concerns. That the education system in Fiji was of poor standards. That she would need to find employment and that her husband would find it difficult to live in Fiji with her and her children. That her husband’s financial priority was his parents and brother; that because of this she took over the responsibility of providing for her and her children. She stated that her husband was ‘mostly never’ around and often lived with his parents. She stated that she did not have a good relationship with her family and that her other concern was that she would have to take care of her kids by herself.

26. Regarding her relationship with her husband in Australia, the applicant stated at interview that her husband had improved his behaviour because of the good behaviour order in place at that time. She claimed that she had decided to come to Australia to seek protection from her husband as she knew it was a country that protected women against domestic abuse. She agreed that despite his violent behaviour she invited him back into their family home, she was financially supporting him and the family loved him.

27. The delegate found that the harm the applicant claimed was at the hands of an individual agent and that she had access to effective protection from the state in Fiji.

    The Tribunal proceedings

28. On 16 February 2018, the applicant applied for review of the refusal to grant a Protection visa.

29. On 7 July 2023, the Tribunal received correspondence from the applicant regarding divorce proceedings filed [in] February 2023 between the applicant and her husband.

30. The following information is provided in a submission made to the Tribunal by the applicant’s representative prior to the hearing:

31. Between the years of 2009 and 2016 the applicant, along with her former husband and her children travelled periodically to Australia.

32. The claims outlined above in respect of the domestic violence experienced at the hands of her husband are repeated.

33. It is submitted that the domestic violence experienced by the applicant has also affected the children, not only by witnessing the violence to their mother but also being victims and subjected to the same behaviour from their father.

34. The case of Khawar is cited in support of the applicant claims.

35. It is submitted that the applicant has undergone years of abuse and control from her former husband, which has caused her to fear for her life.  It is submitted that the applicant is a loving and supportive mother of 5 children.  At each event of abuse she would leave the family home temporarily but could never leave permanently as the children were in the care of her former husband and she could not take them into her own care.  She therefore returned home and continued to face abuse putting the care of her children above her own needs.

36. It is submitted that the applicant faces harm for reason of her membership of a particular social group – women facing domestic violence.  Statistics on the prevalence of domestic violence in Fiji are quoted.

37. It is submitted that the applicant’s former husband had the advantage of wealth and family position within Fijian and [Province 1] enforcement.  Similar to the case of Khawar, the applicant was faced with systematic discrimination by the state and it failed to provide her with protection over the years.  It is submitted that the applicant has experienced firsthand the disadvantage of the system in Fiji and [Province 1] when wealth and power entice the course of justice in developing countries. 

38. It is submitted that the applicant also fears significant harm from her former husband, specifically degrading treatment.

39. Since residing in Australia the applicant has been afforded support through having access to women’s shelters and Centrelink and counselling. She has found Australia to be a safe place for her and her children under the protection of Australian law.  During her time in Australia she was subjected to further domestic violence from her former husband but was able to confidently report this to police and successfully gained protection from the state.

40. It is submitted that the applicant has undertaken a number of courses to further her education and is giving back to the community through her chosen line of work.   Further, her children are excelling in school. 

41. It is noted that the applicant has received a number of fines on her traffic record.  It is submitted that this is due to not having a good understanding of how the demerit point system and traffic laws work in Australia and to her former husband and clients reckless use of her car. 

42. It is acknowledged that the applicant was herself charged with common assault and had an AVO issued against her.  It is submitted that this was due to an altercation between her and her former husband where his behaviour had aggravated the applicant.

43. It is submitted that if the applicant and her children were to return to Fiji the applicant will revert to her life of torment as her former husband will return with her to Fiji in order to have their children in his possession and where she will be in the hands of enforcement who will fail her once again.  Their removal will also cause them financial hardship as her savings will only support them temporarily.  Even though she has family in Fiji she does not have a close relationship with them due to her former husband despite that she continues to financially support her family in Fiji from her earnings in Australia.  It is submitted that in Fiji she will not have any financial support.

44. A typed statement from the applicant is attached in which she repeats her claims of domestic violence.  Additionally she states:

    -Money talks in Fiji and her ex-husband has relatives in some high authorities like [a Country 1 agency] and the police.   His sister plays a vital role in their community.

    -Her ex-husband has often warned her that if she returns to Fiji he will take her kids from Fiji.  This means that she will also need to follow them to [Province 1].  She states that her ex-husband will pay authorities to take her children to [Province 1].  She has witnessed her husband physically harming her children.

    -Her older son testified against his father for hitting him at court proceedings in Sydney.  Many AVOs have been served and her ex-husband was locked up many times in [Police Station 1] during the first three years they lived in Australia.  Now he understands the system and is waiting patiently for them to return home.

    -Even though there are many rules and protocols on paper showing that the Fijian government can provide protection to victims, money and family position greatly assist to get what you want in Fiji.  Her ex-husband uses his position to great advantage and he will always hold this over her.

    -She hasn’t been living with her husband for the past eight years and they have finally filed for a divorce which has helped her with her healing.  She has been doing well, working and raising her children with the help of friends and church members. 

    -In Fiji she will not be able to support her children.  She will need to use her savings provide for them but this will only last for a limited period.  Her family in Fiji depend on her for financial support.

1. A letter is attached from [Leader A], The Church of Jesus Christ and Latter Day Saints, attesting to the good character of the applicants and their contributions to the church.

2. Documentation is attached in respect of [occupation 2] services provided by the applicant, including copies of payslips, ATO records and an advice from her accountant.

3. Letters from recipients of the applicant’s [occupation 2] work are attached attesting to her great support for clients.

4. Evidence is attached of the applicants’ academic achievements in Australia.

5. A letter from the Deputy Principal of [a named] School is attached attesting to the academic and extra-curricula achievements of the children applicants and the applicants contribution to the school community.

6. A letter dated [in] July 2023 from the applicant to the Births, Death and Marriages Registry of Fiji requesting a copy of her marriage certificate for the purposes of obtaining a divorce.

7. Evidence of financial transfers to various persons.

   Tribunal Hearing

8. The applicant’s oral testimony delivered during two Tribunal hearings is summarised as follows:

9. She is a citizen of Fiji only.  She previously held a [residence permit] granting temporary residence in a [Country 1 province] but it is no longer valid.

10. The eldest children ([names]), aged [ages], were born in Fiji and are dual citizens of Fiji and [Country 1].  They hold [Country 1] passports.  The [children named]) aged [ages], were born in [Province 1] and presently are [Country 1] citizens.  The youngest [child] ([named]) aged [age], was born in Australia and is also a [Country 1] citizen.  The Tribunal discussed with the applicant country information which indicates that it would be possible for the youngest children to apply for Fijian citizenship on the basis that their birth mother is Fijian.

11. When asked about her husband’s residency rights in Fiji she said that people from [Province 1] can enter Fiji for a holiday.  She confirmed he does not have Fijian citizenship or permanent residency. The applicant agreed that it appears he would be subject to the same visa conditions as other citizens of [Country 1].

12. She is separated from her husband and divorce proceedings were filed in Fiji in around July 2023.  She is represented by a lawyer in Fiji who is progressing the application and seeking relevant documentation from her.  Her husband has agreed to the divorce and he has formed a relationship with another woman.  She and her husband last lived together in 2018.

13. The Tribunal discussed with the applicant the need for parental orders as part of the divorce noting that the Fiji Family Law Act appears to have similar provisions to Australia in this regard.  She responded that her lawyer has had some preliminary discussions with her and has asked her whether any parenting plan is in place in Australia which there is not.

14. She does not know when her husband re-partnered and she does not know where he lives.  They do not communicate.  She later said that her husband attends the same church as her family and he sometimes approaches her there making statements about taking the children from her.  She said he is in the habit of sending her harassing text messages and he follows her.  In respect of the latter claim she said that if she ever socialises in male company he later sends her abusive messages about it.  The Tribunal was shown a message stream on the applicant’s phone which appeared to contain insults and argumentation.  The Tribunal noted that at a glance the messages did not appear to contain threats of physical violence.

15. She last suffered physical harm at the hands of her husband in 2020.  She explained that her husband came to her home unannounced and attempted to hit her but she threw her shoe at him.  She said the police were called and she was the one charged with assault.  She said her son also became involved in the altercation and he later appeared in court to give evidence against his father.  She said that on that occasion an AVO was issued for [a period] and he abided by the conditions.  She said there have been other AVO’s and he has also abided by the conditions of those noting he is too scared to do otherwise in Australia.  

16. The children are no longer in direct contact with their father.  This situation has prevailed for about 3 years.  They do not want to be with their father.  She later stated that her husband attends the same church as her family and he does so in order to see the children.

17. She said that since their last arrival in Australia in 2016 her husband has never left the country and she has always refused to leave the country with him.  She said he won’t leave because he wants to get the children back.  In the past he begged her to reconcile for this reason but now she has received support and gained confidence she has filed for divorce to let him know she will never go back to him.  She said she has also advised him that once her visa status is resolved she will also fight for child support payments.  She said he refuses to provide any financial support unless the children are returned to his care.

18. She said that she and her parents, who were residing in Australia at the time, tricked her husband into bringing the children with him to Australia.  She said they did not require a visa to enter Australia but she did and so remained behind until her visa was approved.  She said that her [Relative A]  is an Australian citizen and assisted her to obtain a visa.  In this way she managed to get the children to Australia with a view to escaping her husband.  In the early years they remained together, on and off, because she had no choice but to be near her children.  After the last incidence of violence in 2020 she received support from the police and others and she realised she could do better and so they separated.

19. Regarding the marriage she said it was arranged by her father when she was just [age].  She said she didn’t want to marry him and prior to the marriage when she was sent to [Province 1] she would often run back home.  They ultimately married in 2012 and then moved to [Province 1] where she lived until 2016.  She said she and her husband visited Fiji but he never lived in Fiji and did not want to live in Fiji.

20. She indicated that her husband has extended family members, cousins and aunts and uncles, who live in Fiji.  She said they moved to Fiji under the banner of their church and have remained there.  The Tribunal asked whether any of his family in Fiji hold positions within government.  She said that they do not but he has family in the police in [Province 1] and his sister works for [a Country 1 agency] there.

21. Regarding her family she said that her parents have returned to Fiji and they live in [Town 1] near Suva.  She said her brother also currently lives there but he has married an Australian citizen and is planning to move to Australia.  She said she supports her family by paying their rent as none of them work.  She said she remains in contact with her family in Fiji and speaks to them about once a week.  She said that she and her Australian citizen [Relative A] are not on speaking terms.

22. Regarding her employment history she said that she previously worked as [an occupation 1] in [Province 1] and has some experience working in a [business 1] in Fiji.  In Australia she has developed a career in the [occupation 2] sector. 

23. Regarding the claims of a political nature which were included in the application for a Protection visa she stated that those claims are abandoned and her claims to fear harm in Fiji are purely related to the domestic violence she has endured from her husband.

24. Regarding the past physical violence from her husband she said it commenced in 2012 when she went to live in [Province 1].  She said that once when they were on holiday in Fiji in 2015 her husband punched her in the face and the police were called.  She said the police took him away and held him until he sobered up.  She did not attend the police station and he was only held for a few hours.  Afterward he returned to [Province 1] taking two of the children with him.  She later returned to [Province 1] for the sake of the children.  She said this pattern of her fleeing to Fiji and later returning to [Province 1] was repeated several times over the years.  On the occasions she remained in Fiji she rented accommodation using her savings. 

25. The Tribunal put it to the applicant that it is surprising that she claims to fear harm from her husband who is present in Australia and yet has remained here instead of returning to Fiji.  She responded that he will follow her if she returns to Fiji and is waiting for that opportunity to arise.  She said he has mentioned it to her and in front of family. 

26. The Tribunal put it to the applicant that her claim appears to be somewhat speculative noting her evidence that they separated in 2018, he has a new partner, doesn’t have residency rights in Fiji, has agreed to a divorce and doesn’t have direct contact with the children.  The Tribunal suggested that as he could at best only visit Fiji for short periods of time the risk of him harm her there might be reduced.  The applicant responded that he comes to their church so that he can see the children there.  She also said that at some point her husband would come to Fiji and attempt to harm her there.

27. The Tribunal put it to the applicant that her husband has remained in Australia since 2016 and should he ever become unlawful he could not leave and expect to return.  The Tribunal suggested that in such circumstances he might be dissuaded from following her to Fiji.  She replied that he has not gone back and only remains because of the children.  

28. The Tribunal discussed with the applicant her likely movements in the event she is required to leave Australia.  She agreed she would return to Fiji and would look for a house to rent in Suva, the main city.  She later said she would return to [Town 1] which is outside of Suva.  She agreed there was no chance she would ever return to live in [Province 1].

29. Regarding the claim that her husband would come to Fiji and forcibly take her children away from her the Tribunal asked why she thinks that would be possible given there would likely be a parenting plan of sorts in place under any divorce settlement and legal recourse for any breach of orders.  She replied that he has more money than she does and would be in a position to hire lawyers in [Province 1].  She stated that she was previously told that it could take up to two years to resolve a custody battle in [Province 1].  The Tribunal suggested that it might be a different situation in Fiji, noting that her husband is not a Fijian citizen.  She insisted that he would engage lawyers to fight for custody and said that in the event she lost custody of the children she would have to return to [Province 1] to remain close to them.  She was asked if she has discussed her rights with her lawyer in Fiji.  She replied that she has had preliminary discussions with him and he has requested copies of AVO’s and enquired about the arrangements in place in Australia for care of the children. 

30. The Tribunal discussed with the applicant information which indicates that the Family Law Act in Fiji appears comprehensive and a Legal Aid Commission as well as an active women’s rights organisation she could draw on for assistance. The Tribunal also noted that information indicates that Fiji has ratified the Convention on the Rights of the Child and has established a national coordinating committee on children. Further, the Tribunal noted that the Fijian Constitution guarantees Fijian children the right to be protected from abuse and violence; that there are 2 national helplines to respond to cases of gender-based violence and child abuse which the government resourced; that the national child helpline is staffed by professional counsellors to aid access to immediate help in situations of abuse and neglect. The applicant reiterated that she has little financial backing compared to her husband.

31. The Tribunal also discussed with the applicant country information relevant to the protection of victims of domestic violence in Fiji.  The Tribunal accepted that there are reports of some inconsistency in the application of laws but noted that she would likely reside in Suva where services are likely to be better than in rural areas.  The Tribunal also pointed out that her husband is not a Fijian citizen and it does not appear that he could act with impunity in Fiji.  The applicant responded that she remains in contact with friends in Fiji who regularly report that they are subjected to violence in the villages and in rural areas and are struggling under those conditions.  She said that she fears for her life in Fiji. 

32. Regarding other challenges the applicant might face on return to Fiji she referred to the recent increases in cost of living and argued that she would have difficulty providing for her five children on a salary similar to that which she earnt in Fiji previously.  She also stated that her children are all developing well in Australia and said that both she and them would all need to start again if they returned to Fiji which would not benefit any of them.  She added that she feels personally safe from harm at the hands of her husband in Australia but wouldn’t feel the same in Fiji.  Whilst acknowledging sympathy for the likely challenges ahead the Tribunal put it to the applicant that there is nothing before it to indicate that she would be denied employment of any kind or that the children could not access a basic education in Fiji.  The Tribunal also suggested that it appears she could petition the court for maintenance support as part of the divorce proceedings.  She replied that her husband works in [a named industry] and can mask his income by accepting only cash payments. 

33. Regarding the possibility of relocation within Fiji she argued that Fiji is a small country and her husband has church connections throughout the country.  She said that he is known by church members around the country and she is known to be his wife.  She said it would not take long for news of her location to reach him. 

34. During a second hearing held on 17 November 2023 the first named applicant advised that since the last hearing her husband has been coming to the house and trying to reconcile with her as he missed the children and has left his girlfriend.  She said that she has told him she will never reconcile with him and when she does he becomes angry and arrives at the house unannounced.  She referred to an incident which occurred at Halloween when she was away at work.  She said her husband came to the house and interrupted a party her son had organised.  She said he yelled at her son’s friends and told them to get out of the house as he wanted to be with his children.  She said that when her son called her crying and upset she called her husband and they argued.  She stated that she still believes he is a threat in her life but that unlike in Fiji, she feels protected in Australia.  She said that whenever she threatens to call the police he listens and leaves. 

35. Regarding the incident of violence which occurred when the applicant was visiting Fiji with her husband some years ago she clarified that the police did not ask him to leave the country after releasing him from custody, rather he left of his own accord but only after she agreed that two of the children could go with him to [Province 1].

36. The Tribunal discussed with the applicant news reports [1] it had accessed which reveal that a new police station has opened in [Town 1] to house the [regional] headquarters.  The Tribunal noted that the reports indicate the police station is a [specified] structure which will be home to [a large number of] officers with various units and holding cells.  The Tribunal also noted that the [Commander] is quoted as saying he assures the public the issues of service delivery, particularly within the [Town 1] area of operations, will be continuously looked into for improved police and [community relations].[2]  The Tribunal put it to the applicant that it therefore appears there will be a greater level of police resourcing in [Town 1] should she be required to return to Fiji and she returns to live in [Town 1].  The applicant responded that she speaks to female friends in Fiji regularly and they continue to report the problem of gender-based violence and the lack of adequate police protection.  She referred to an incident which had occurred two days prior to the hearing where it is reported a woman was murdered by her husband in [Town 1] simply because she returned home late.  She maintained the Fiji police are susceptible to corruption.

    [1] [Citation deleted.]

    [2] [Citation deleted.]

    Post-hearing submissions

37. On 29 August 2023 the Tribunal received a further submission.  It is stated that if the applicant’s protection visa is refused she will return to [Town 1] in Fiji.  [Town 1] is a suburb located [in a specified area] of Fiji.  It is submitted that [Town 1] has very poor protection for women facing domestic violence and from the applicant’s experience has high crime rates.  Therefore, returning to her village, would offer her no prevalent protection along the lines she has received in Australia.

38. The following documents were attached to the submission:

    -Final order – Apprehended Violence Order against [Husband A] dated [in] October 2017.

    -Final order – Apprehended Violence Order against [Husband A] dated [in] June 2020.

    -Advice of court result regarding Apprehended Violence Order dated [in] May 2020.

    -Text message exchange between the applicant and her former husband.

    Country Information

39. The most recent DFAT report for Fiji notes that Fiji is a traditionally male-dominated society with well entrenched traditional gender roles.[3]

    [3] DFAT Country Information Report Fiji, 20 May 2022

40. Violence against women is prevalent in Fiji.  Between January and July 2022, the Fiji Women’s Crisis Centre (FWCC) recorded 791 domestic violence cases, an increase from previous years.[4]  In 2020, 10 women died from domestic violence.[5] In March 2022, the FWCC reported that 64 per cent of women who have ever been in an intimate relationship had experienced physical or sexual violence.  Of these, 61 per cent of women have experienced physical violence and 34 per cent have been sexually abused or raped.[6]  In 2014 the FWCC reported that every day in Fiji, 43 women are injured, one woman is permanently disabled and 71 lose consciousness as a result of domestic violence.[7] The situation has worsened considerably in recent years, with NGOs reporting a ‘concerning increase’[8] in gender-based violence since the COVID-19 pandemic.[9]

    [4] ‘Country Reports on Human Rights Practice for 2022 – Fiji’, US Department of State, 20 March 2023

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

    [6] ‘Fiji’s Domestic Violence Average Rate at 64%’, Fiji Sun, 12 March 2022

    [7] ‘Fijian women’s experiences of domestic violence and

    [8] ‘Crisis within a crisis’: Violence against women surges in Fiji’, Sheldon Chanel, Aljazeera, 24 February 2021

    [9] ‘Country Reports on Human Rights Practices for 2021 – Fiji’, Bureau of Democracy, Human Rights, and Labor, United States Department of State, 12 April 2022; ‘Freedom in the World 2022 – Fiji’, Freedom House, 28 September 2022; ‘Amnesty International Report 2021/22: The State of the World’s Human Rights’, Amnesty International, 29 March 2022; ‘Access to safe houses key for victims of violence in Fiji: govt’, Radio New Zealand, 16 September 2020.

41. Legislative protection against violence is provided by enactments including the Family Law Act 2003, the Domestic Violence Decree 2009, the Criminal Procedure Decree 2009, the Crimes Decree 2009, and the Family Law (Amendment) Decree 2012.  Police practice a ‘no drop’ policy that requires them to pursue investigations of domestic violence even if the victim withdraws the accusation.[10]  However, women’s organisations report that police do not consistently follow this policy.[11]  Magistrates can issue restraining orders 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.  DFAT assesses that these orders are enforced by police and ‘provide some protection’.[12] 

    [10] ‘Country Reports on Human Rights Practices for 2022 – Fiji’, US Department of State, 20 March 2023

    [11] ibid

    [12] ‘DFAT country Information Report Fiji’, 20 May 2022

1. Reports identify numerous challenges regarding police protection from gender-based violence in Fiji.  DFAT states that police protection is available, but not consistently. According to DFAT some police stations do not have the equipment or transport to effectively deal with gender-based violence cases.  DFAT notes that women who seek help from advocates, such as the FWCC, may receive more assistance than from the police.[13]  The United States Department of State (USDOS) reports lax enforcement by the policy of domestic violence laws.[14]  A review by the Fijian Auditor General in 2019 found that there was ‘inconsistency’ in the application of legislation that prohibits violence against women.  The review found police often pressure women to reconcile with perpetrators and were sometimes unhelpful or hostile to domestic violence victims who filed police reports.[15]  According to USDOS, during 2022 Fijian Courts dismissed some domestic violence cases and gave perpetrators light sentences.[16]

   [13] ibid

   [14] ‘Country Reports on Human Rights Practices for 2022 – Fiji’, US Department of State, 20 March 2023

   [15] ‘DFAT country Information Report Fiji’, 20 May 2022

   [16] ‘Country Reports on Human Rights Practices for 2022 – Fiji’, US Department of State, 20 March 2023

2. In 2017, the Fiji Women’s Rights Movement reported, from a longitudinal study, that women surveyed had experienced violence for an average of 868 days before going to a police station or courts to resolve the issues, and that two in three women surveyed had faced difficulties in going to the police as the police had told them to resolve their issues within the family or village and had not taken what they reported seriously.  In a survey completed by the organisation, sixteen per cent of women reported that they had been sexually harassed or threatened by the police they had approached and forty per cent had reported the police as having attempted to reconcile them with their partner, refused to take any action in response to their complaint or delayed serving a domestic violence restraining order.[17]

   FINDINGS AND REASONS

   [17] Fiji Women’s Rights Movement, Balancing the scales: Improving Fijian women’s access to justice, November 2017

   Country of reference

3. Based on the available evidence the Tribunal is satisfied that the applicant is a citizen of Fiji.  The third and fourth named applicants are dual Fijian/[Country 1] citizens. The second, fifth and sixth applicants currently hold [Country 1] citizenship. 

   Political claims

4. When the application for the protection visa was made claims were advanced on political grounds.  As can be seen from the evidence outlined above the written claims contained in the application for the visa were renounced by the first named applicant.  She has clearly indicated that her claims are solely related to feared domestic violence at the hands of her husband.  The Tribunal has not given the earlier claims contained in the application for the protection visa any further consideration.  

   Domestic/family violence claims

5. The appeared before the Tribunal on 9 August and 17 November 2023 and her oral testimony in respect of her relationship was considered to be generally truthful and credible.  She gave a generally consistent account of her experiences in her marriage in Fiji, [Province 1] and Australia and displayed a genuine fear of her husband.  The Tribunal accepts the following:

   -She is a Fijian citizen and married her [Province 1] ([Country 1]) citizen husband in 2012.

   -After her marriage she moved to [Province 1] where she resided with her husband from 2012 until last entering Australia in 2016.

   -She has five children under the age of 18 from her marriage.  Two of the children currently hold dual Fijian/[Country 1] citizenship.  The remaining three children currently hold [Country 1] citizenship but are entitled to apply for Fijian citizenship on the basis that their mother is a Fijian citizen.[18]

   [18] The Fijian Immigration Department website ( states that to become a Fijian citizen applicants must be a child under the age of 18 who’s either parent is a Fijian citizen.

   -If she is required to depart Australia she will return to Fiji with all her children and will reside in [Town 1].

   -Her husband is not a citizen nor permanent resident of Fiji. 

   -She separated from her husband in 2018 and she and the children have lived separately to him since then.  He does not provide her or the children with financial assistance.

   -Divorce proceedings have been filed in Fiji and the outcome of the divorce is pending. 

   -Her husband remains onshore in Australia.

   -Her husband has not pursued formal arrangements for contact with the children and the children wish to remain in the custody of their mother.  

   -She suffered domestic violence in her marriage in [Province 1], Fiji and Australia. 

   -In Fiji, after an incidence of violence, the police were called and they detained her husband briefly after which he returned to [Province 1] without her.

   -In Australia, the applicant has involved the police on occasion when conflict has erupted between her and her husband and several AVO’s have been put in place by the court.  Her husband abided by the conditions of those AVO’s.  She was also charged with assault against her husband on one occasion and was subject to an AVO herself.

   -There is ongoing tension and acrimony between the applicant and her husband but neither she nor the children have been physically harmed by him since 2020.

6. The Tribunal is satisfied that if the applicant is required to depart Australia she will return to her country of nationality which is Fiji.  Based on the available evidence the Tribunal accepts that the applicant children are living with their mother and wish to continue doing so.   The Tribunal is satisfied that the applicant children will return to Fiji with her.  The Tribunal is also satisfied that all the applicant children have the ability to enter Fiji with her.  In the case of the third and fourth named applicants this ability is based on them holding dual Fijian/[Country 1] citizenship.  In the case of the second, fifth and sixth applicants who currently hold [Country 1] citizenship, the Tribunal is satisfied that they have the ability to enter Fiji visa free for a period of up to four months on account of them being [Country 1] citizens. 

   Feared physical abuse

7. The applicant has consistently claimed to fear returning to Fiji due to a history of family violence from her husband.  The Tribunal accepts from the evidence given by the applicant that she has experienced physical violence at the hands of her husband over a prolonged period of time in Fiji, [Province 1] and Australia.  The Tribunal also accepts, based on the applicant’s oral testimony and the text messages submitted as evidence, that the applicants husband continues to harass and threaten her verbally.

8. According to her testimony the applicant has filed for divorce in Fiji and she has a lawyer acting on her behalf in Fiji.  Whilst she initially testified that her husband does not dispute the divorce her most recent testimony, which the Tribunal accepts, is that he has recently begun to pursue a reconciliation with her.  The Tribunal is satisfied however that the applicant will not consent to a reconciliation and intends to pursue a divorce regardless of her husband’s acceptance of this fact or otherwise.   Even if the applicant’s husband does dispute the divorce there is nothing before the Tribunal to indicate that it will not be finalised and the Tribunal is satisfied that in due course the applicant and her husband will be divorced.

9. Despite the above, the primary applicant maintains that her husband is waiting for her to return to Fiji where he can act with impunity and harm her.  She claims that her husband has only refrained from further violent action toward her in Australia because he is too scared to breach Australian law after previously being issued with a series of AVO’s.  She claims he will not exercise the same restraint in Fiji where the law is not implemented as rigorously. 

10. The available evidence indicates that the applicant and her husband have not lived together since 2018 and there are no further claimed incidents of physical violence reported by her since 2020.    That said, the Tribunal is prepared to accept that his previous brushes with the law in Australia have likely contributed to his behaviour modification as is submitted.  

11. In this case, the person who the harm is feared from is not a Fijian citizen.  The applicant claims that because her husband is from [Province 1] he has the right to reside in Fiji thereby increasing the risk of harm to her.  However, as discussed with her during the hearing the Tribunal does not accept this.  According to the Citizenship of Fiji Act 2009 (Part 8 – rights to enter and reside in Fiji)[19] the following persons may enter and reside in Fiji:  former citizens, a foreign wife or widow or foreign husband or widower of a citizen, a child of a citizen.  The Tribunal is satisfied that once divorced, the applicant’s husband’s ability to visit Fiji will be subject to him abiding by visa conditions applicable to entrants with [Country 1] citizenship.   According to the evidence before the Tribunal foreign nationals from a range of countries, including [Country 1], can enter Fiji visa free for stays of up to four months.[20]

    [19] Citizenship of Fiji Act 2009, The Laws of Fiji, Visa Exempted Countries (immigration.gov.fj)

12. According to the applicant her husband has never lived in Fiji and has never wanted to.   Given this, and as they have not lived together since 2018 and will likely soon be divorced, the Tribunal does not consider it likely that the applicant’s husband will follow her and the children to reside in Fiji.  However the fact remains that they have five children together and based on the applicant’s most recent testimony, which the Tribunal accepts, her husband has recommenced efforts to reconcile with her and has renewed efforts to see or be around the children.   Even if the applicant secures a divorce from her husband the Tribunal cannot rule out the possibility that should she return to Fiji he might at some point in the foreseeable future travel to Fiji, albeit temporarily, with a view to pursuing a reconciliation or at least visiting his children. 

13. The Tribunal accepts that the applicant and her husband have a turbulent and violent past and the text messages viewed during the hearing and submitted post-hearing in support of the claims indicate there is considerable ongoing acrimony between the two despite their separation.  Additionally, the applicant has indicated, and the Tribunal accepts, that the children do not want to maintain contact with their father which is potentially another source of acrimony.   In the circumstances the Tribunal is prepared to accept that at some point in the foreseeable future there is a chance, that is not remote, that tensions between the applicant and her husband could boil over and result in a violent confrontation between the applicant her husband while he is present in Fiji.  Accordingly, the Tribunal is prepared to accept that there is a real chance that the applicant could be subjected to physical violence and/or emotional violence, amounting to serious harm, at the hands of her husband in Fiji. 

14. The Tribunal finds that the essential and significant reason for the harm feared is because the applicant is a member of a particular social group of women in Fiji.  The characteristics of the group are shared by each member of the group, are innate or immutable and distinguish the group from society, and it is not a shared fear of persecution. 

100.   The delegate found that the applicant would be able to access effective state protection from any harm from her husband in Fiji. 

101.   The Fiji Police Force has been described as professional and as generally treating victims of crime with dignity.  DFAT states that the FPF has an overall capacity to protect individuals from societal harassment, discrimination, and violence and that police are usually effective in carrying out their role in day-to-day crime detection, investigation and prevention.[21]

102.   However, DFAT also states that while protection for women is available it is not consistent.  Some police stations lack equipment or transport to deal effectively with cases of gender-based violence.[22] As noted above, while there is a no-drop policy, this is not enforced consistently.  The above reporting indicates that women who have experienced domestic violence are reluctant to go to a police station or courts to resolve the issues due to a lack of confidence their reports will be taken seriously. 

103.   The Tribunal considers the newly expanded police presence in [Town 1] may go some way to overcoming limitations in accessing protection due to the lack of equipment or transport to deal effectively with domestic violence situations.  However, taking into account the totality of the country information outlined above, the Tribunal is not satisfied that the level of protection available to domestic violence victims in Fiji is adequate.  The Tribunal finds that effective protection measures are not available to the applicant in Fiji. 

104.   Given the prevalence of domestic violence in Fiji and the above reporting in respect of the effectiveness of state protection the Tribunal is satisfied that the chance of harm exists across all areas of Fiji.

105.   In light of the above, the Tribunal finds that there is a real chance the applicant will suffer serious harm for reason of her membership of a particular social group, women in Fiji, if she returns to Fiji now or in the reasonably foreseeable future. 

106. The Tribunal finds that the applicant has a well-founded fear of persecution in Fiji. The applicant is therefore a person in respect of whom Australia has protection obligations under s 36(2)(a).

107.   The Tribunal notes the applicant’s claims in respect of her fears that her husband may seek custody of her children in Fiji and that she will face economic difficulties raising five children in Fiji.  However, in light of the above the Tribunal has not deemed it necessary to address these concerns. 

108.   There is no evidence before the Tribunal to indicate that the applicant has a right to enter and reside in any other country.  The Tribunal finds therefore that s 36(3) of the Act does not apply to exclude the applicant from Australia’s protection obligations.

[21] DFAT Country Information Report Fiji, 20 May 2022

[22] DFAT Country Information Report Fiji, 20 May 2022

1. CONCLUDING PARAGRAPHS

109. For the reasons given above the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.

110. The Tribunal is satisfied that the other applicants are members of the same family unit as the applicant for the purposes of s36(2)(b)(i). It therefore follows that the other applicants will be entitled to a protection visa provided the criterion in s 36(2)(b)(ii) and the remaining criteria for the visa are met.

DECISION

111.   The Tribunal remits the matter for reconsideration with the following directions:

(i)The applicant satisfies s 36(2)(a) of the Migration Act; and

(ii)The other applicants satisfy s 36(2)(b)(i) of the Migration Act, on the basis of their membership of the same family unit as the applicant.

Tania Flood
Member

ATTACHMENT  -  Extract from Migration Act 1958

5 (1) Interpretation

…

cruel or inhuman treatment or punishment means an act or omission by which:

(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

but does not include an act or omission:

(c)     that is not inconsistent with Article 7 of the Covenant; or

(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

(a)     that is not inconsistent with Article 7 of the Covenant; or

(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

(a)     for the purpose of obtaining from the person or from a third person information or a confession; or

(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

(c)     for the purpose of intimidating or coercing the person or a third person; or

(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

…

receiving country,  in relation to a non-citizen, means:

(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

…

5H    Meaning of refugee

(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note:     For the meaning of well-founded fear of persecution, see section 5J.

…

5J     Meaning of well-founded fear of persecution

(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

(c)     the real chance of persecution relates to all areas of a receiving country.

Note:     For membership of a particular social group, see sections 5K and 5L.

(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

Note:     For effective protection measures, see section 5LA.

(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

(b)     conceal an innate or immutable characteristic of the person; or

(c)     without limiting paragraph (a) or (b), require the person to do any of the following:

(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

(ii)conceal his or her true race, ethnicity, nationality or country of origin;

(iii)alter his or her political beliefs or conceal his or her true political beliefs;

(iv)conceal a physical, psychological or intellectual disability;

(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

(b)     the persecution must involve serious harm to the person; and

(c)     the persecution must involve systematic and discriminatory conduct.

(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

(a)     a threat to the person’s life or liberty;

(b)     significant physical harassment of the person;

(c)     significant physical ill‑treatment of the person;

(d)     significant economic hardship that threatens the person’s capacity to subsist;

(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family

For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

(b)     disregard any fear of persecution, or any persecution, that:

(i)the first person has ever experienced; or

(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family

For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

(a)     a characteristic is shared by each member of the group; and

(b)     the person shares, or is perceived as sharing, the characteristic; and

(c)     any of the following apply:

(i)the characteristic is an innate or immutable characteristic;

(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

(iii)the characteristic distinguishes the group from society; and

(d)     the characteristic is not a fear of persecution.

5LA Effective protection measures

(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

(a)     protection against persecution could be provided to the person by:

(i)the relevant State; or

(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

(a)     the person can access the protection; and

(b)     the protection is durable; and

(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

…

36     Protection visas – criteria provided for by this Act

…

(2)A criterion for a protection visa is that the applicant for the visa is:

(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

(aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (a); and

(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

(i)is mentioned in paragraph (aa); and

(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

…