1817116 (Refugee)

1817116 (Refugee) [2023] AATA 4136 (23 September 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1817116
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Christine Cody
DATE:23 September 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 September 2023 at 6:17pm

CATCHWORDS
REFUGEE – protection visa – Fiji – membership of particular social group – homosexual woman – one shorter and one longer relationship in home country – assault by family and forced marriage, abuse by husband and societal/church discrimination – no social activity, encounters or relationships in Australia – credibility – inconsistent and unreliable claims, evidence and supporting statements – previous marriage not disclosed – attitudes of parents, timing and circumstances of relationships and marriages, and residence and work – no or unpersuasive explanations for inconsistencies – previous visitor visa and unsuccessful protection application as dependent of mother not declared – studied in breach of conditions of bridging visa – country information – same-sex activity legal and discrimination low – legal protection for victims of domestic violence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), 424A, 424AA
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The applicant claims to be a citizen of Fiji and she applied for a protection visa on 30 March 2017. On 11 May 2018 a delegate of the Minister for Home Affairs made a decision to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
This is an application for review of that decision.
The applicant’s migration history
The applicant’s migration history is as follows:[1]
[1] Sourced from the delegate’s decision record, as well as Departmental records put to the applicant pursuant to s 424AA of the Act as discussed later.
·2 December 2006: granted Tourist (Subclass 676) visa valid until 29 December 2006
·[December 2006]: arrived in Australia with her mother, [Ms A]
·19 December 2006: granted bridging visa on the basis of protection visa application lodged by her mother (the applicant, aged [Age] years, was a dependent on this visa)[2]
[2] Sourced by Departmental records put to the applicant pursuant to s 424AA of the Act as discussed later.
·16 March 2007: their protection visa application was refused by the Department
·2 April 2007: the mother and the applicant lodged an application for review to the Refugee Review Tribunal (RRT)
·29 May 2007: the RRT affirmed the decision to refuse to grant protection visas to the mother and the applicant
·25 June 2007: the mother and the applicant lodged an application for Ministerial Intervention which was unsuccessful on 31 March 2008
·22 April 2008: the mother and the applicant lodged a second application for Ministerial Intervention which was unsuccessful on 9 July 2008
·[July] 2008: the mother and the applicant departed Australia
·15 November 2016: the applicant signed her offshore visitor visa application in which she stated that she had never previously had an application for further stay in Australia refused
·8 December 2016: granted Tourist (Subclass 600) visa
·[December] 2016: arrived in Australia with tourist visa
·30 March 2017: lodged a Protection (Subclass 866) visa
·11 May 2018:[3] Department refuses protection visa application
·12 June 2018: application for review lodged with the Tribunal.
[3] Notified by post.
Departmental file
The applicant provided a protection visa application form, her statement of claims dated 13 April 2017 and supporting documents.
Protection visa application form
According to her protection visa application form, her background is as follows:
·The applicant is [applicant name]. She has never been known by any other name.[4] She was born in [Year] in Suva, Fiji. She speaks Fijian.
[4] She provided her birth certificate, bio data passport page and NSW Photo Card which confirmed this.
·Her family members outside Australia are as follows: Her father, [Mr B], and her mother, who both reside in Fiji. She is not in contact with her relatives outside of Australia.
·She has a personal contact in Australia, [Ms C] (born in [Year]) (her cousin[5]).
[5] At hearing the Tribunal was informed that their relationship is cousins (removed) as their grandmothers were sisters.
·She has previously visited Australia. She has never had an application to stay in Australia refused (this, as discussed below, is incorrect).
·     Her education history is as follows:
o   [Year] to [Year]: attended Primary School, Fiji
o   [Year]: attended [High School], Australia
o   [Year]: attended [School name], Fiji
o   [Year]: attended [University], Fiji
o   [Year]: attended [Community College], Australia.
·     The applicant’s employment history is as follows:
o   June 2008: worked in [Work sector] at [Workplace 1]
o   November 2015: worked in [Work sector] at [Workplace 2]
o   February 2016: worked as [an Occupation 1] at [Workplace 3] (she told the Tribunal that this was located in Suva).
The applicant made claims in her protection visa application form, as follows:[6]
[6] With some minor spelling corrections.
“Why did you leave that country”
·I am a homosexual[7], and I wasn’t accepted in my family. I was judged, discriminated and was forced to be married out with a guy who I never loved. Homosexuals are not accepted in Fiji therefore I had to be in a community or country which I can have my own rights and being accepted for who I am.
[7] The applicant has sometimes referred to a sexual orientation of homosexual, or lesbian; the terms have been used interchangeably in this decision.
“What do you think will happen to you if you return to that country”
·I fear for my life and my safety whilst returning to Fiji due to the fact that I have fled my marriage to a man I never loved. The impact of my intention to flee to another country to where homosexuality is lawful will be the humongous problem to me personally. It is against our religion, tradition and culture to marry the same sex and to be a loyal wife to him, since I have been a homosexual I can never marry an opposite sex. Therefore I kindly request my protection visa application to be considered to enable myself to live in this country for freedom where I don’t need to be judged or discriminated as a homosexual individual
“Did you experience harm in that country?”
·I have been discriminated based on my homosexuality
“Did you seek help within the country after the harm”
·No because it is illegal in Fiji
“Did you move, or try to move, to another part of that country(s) to seek safety”
·No I did not move to any part of the country because I had families almost everywhere
“Do you think you will be harmed or mistreated if you return to that country”
·Yes I will be punished by my husband and my family from fleeing the country and I will be discriminated by the community due to my homosexuality
“Do you think the authorities of that country(s) can and will protect you if you go back?”
·No because I am homosexual and it is illegal in Fiji
“Do you think you would be able to relocate within that country”
·No because I do not have any legal right as a homosexual
The applicant’s statement
The applicant’s statement of claims included the following:
I applied for a Protection Visa due to my condition in Fiji of me being a Homosexual (Lesbian).
[In] 2016 I was being forced to marry a man whom I barely even know or loved because I wasn't accepted in my family due to the fact I was a homosexual.
I was in a relationship with my female partner for years, life was so good and I was really happy. My life started to fall apart as I tried to seek for someone's support but my whole family and the community turned their backs on me as they go on judging me, discriminated me, swore at me and it came to a point where I was being bashed by my own family and was told that I wasn't welcome in the house or as a family member. I didn't expect for this day to come as it really crushed me into pieces as I committed suicide and was saved by a friend of mine but I never loose hope in doing it again because I had no other thing to live for as all my happiness has been taken away from me. I couldn't run away anywhere else as my family is a big family and they are everywhere so the only thing that came in mind was to commit suicide and get it over with.
Being married to this guy ([Mr D]) thinking I could find peace and love and try and regain what I have lost and mend my broken heart, but it wasn't quiet actually a happy ending as I was being beat up by him, ill-treated, thrown out of the house, being beaten up while he came home every night drunk, being thrown outside with my suitcase when its raining heavily and I had to sleep outside on the rain. I thought I could even find a little peace but it went from Hell to Death. I could be beaten up almost every day and it ended up giving me severe pain or headaches well I guess that's what my family and especially my parents want it to happen to me. It came again to a point when I tried to commit suicide again because I had nothing but tears on my eyes every day. I had nothing good to look forward to everyday like normal people do or normal couples, but bashing and being told off. Coming over to Australia is another chance for me to start over again, start a new life I've always dreamed off. Surrounded by people who will love me and treat me equally, and government supports and understands people like me.
Supporting statements/documents
[Ms C] provided a supporting statement dated 13 March 2017 stating:
- The applicant is her “cousin sister”.
- [Ms C] sponsored the applicant’s travel to Australia for a visit to come and visit her and her family. Not only to come for a visit but to also come for a break from her husband who has been physically and verbally abusing her in Fiji.
- The applicant has been in a homosexual relationship for years.
- [Ms C’s] family here in Australia would be the only ones who understand her choice as it is lawful here in Australia.
- As same-sex relationships and marriages are illegal in Fiji, the applicant has been discriminated against due to her choice of same-sex relationship with her girlfriend.
- After many visits to Fiji, [Ms C] noticed how the applicant had been discriminated against through frustration and devastation as she was forced to participate in a fixed marriage by her own immediate family in Fiji.
- Last year the applicant asked [Ms C] to sponsor her as she needed a little break away from her abusive husband. [Ms C] respected her choice and understood how much she had to go through when she was forced to marry someone she never loved. She is in full support of the applicant’s intention to live in this country permanently.
The applicant’s mother provided a supporting statement dated 12 March 2017 stating:
·She is in full support of the applicant’s protection visa application.
·The applicant has been in a same-sex relationship in Fiji for a few years. As her mother, it was really hard to see her daughter being in an unlawful relationship which is against their religion in Fiji.
·Their small community sees her differently which has mostly brought shame to their family as a whole.
·Despite the mother’s several attempts to persuade the applicant to stop seeing her female partner, the applicant would run away from home until the mother found where she had been hiding and brought her back home.
·The immediate family have been “very rejectful of her choice to be a lesbian”. Therefore they arranged a marriage for the applicant to [Mr D] and they married [in] April 2016.
·The applicant attempted to run away on the day before the wedding but was unsuccessful as they had her uncles to guard her and keep her on the watch.
·After they got married, the mother noticed how devastated the applicant had gotten. She wouldn’t eat for days. Her husband had been complaining that she wouldn’t sleep in the same bed as him. This led to constant fights and arguments.
·She feels for her daughter as she tried to commit suicide twice since she got married as the husband would physically abuse her when she communicates with female friends or even neighbours.
·Since the applicant has been unhappy for many years, the mother gives her full support to the applicant in applying for a permanent visa to allow her to live in Australia permanently where she will live freely and have her right to be in a same-sex relationship with another woman.
Other supporting documents included identity documents and country information:
·A copy of the applicant’s bio data passport page and NSW Photo Card;
·A copy of the applicant’s birth certificate;
·A copy of an RNZ Article ‘Fiji PM’s Gay Marriage Comments Shock’ dated 6 January 2016, stating that the former Prime Minister Frank Bainimarama was quoted as disagreeing that Fiji should allow same-sex marriage, calling this “rubbish”. The Head of the Fiji Women’s Crisis Centre was quoted as saying that acceptance of the gay community has been slowly increasing and the leaders should instead be encouraging tolerance. Other articles commenting on the former Prime Minister’s comments were also included.
The delegate’s decision record[8]
[8] Provided to the Tribunal by the applicant.
The delegate refused to grant the visa on the basis of a consideration of country information (including the articles she had produced). There was no analysis as to the credibility of the claims, and she was not interviewed. It was stated that:
·The country information shows that Fiji is a progressive country where same-sex sexual activity is legal, the discrimination against same-sex relationships is low… the law in Fiji does not discriminate against LGBTI [people] in being in a relationship without marriage.
·While I acknowledge she may face some discrimination, as a homosexual female, I am not satisfied there is a real chance such discrimination would amount to persecution.
·In regards to her forced marriage, the applicant was [Age] years of age at the time, she is an adult who is well educated that could make her own decisions as to whether she wanted to be in a relationship with a male or not. There is legal protection for women who have been victims of domestic violence in Fiji and the availability of various crisis centres and support services that she can use.
·The support letters from her cousin and mother, do not provide a sufficient basis to be satisfied that the applicant is, in fact, persecuted or that she will face harm on return to Fiji.
The Tribunal
In addition to a copy of the delegate’s decision record, the applicant provided with her application for review form the following supporting documents.
A letter of support from [Ms C] dated 7 June 2018 (her second letter) and a copy of her Australian passport bio data page (f32) were provided. The letter stated:
I, [Ms C] am writing this letter in supporting my niece [the applicant] to live here in this country of Australia permanently.
I sponsored [the applicant] to come pay us a visit in 2017. And prior to my many visits to Fiji, i have heard from her parents how her marriage has been on the rocks due to her husband still not coming to terms that [the applicant] was in a lesbian relationship before him. In saying that, i have also seen her young life filled with overwhelming sadness and anxiety.
She has attempted to hurt herself few times while in Fiji due to stress of being bullied, harassed, discriminated against and embarrassed by the negative reactions from her husband, our family members and religious groups to which she was a part of.
Since i am a proud citizen of this country of Australia, I would like to take this opportunity in seeking your assistance in making [the applicant]'s dream come true. A dream to live here permanently where she may find a same sex true love, a place where she will have her homosexuality rights respected and will always have freedom to live and pursue with her dreams to study and be of a great asset to the country.
A letter of support dated 9 June 2018 and a copy of the Australian passport bio data page of [Mr E], husband of [Ms C], were provided. The letter stated that he wants to support the applicant who is his niece to live permanently with him and his wife. The applicant has been through a lot of dramatic and tragic situations and her choice to have a relationship with a female has had a mental and physical affect on her life and it is not pleasant for the family or the community which can involve harm and sinful views against her. She enjoys her freedom as a homosexual and individual in Australia.
A letter of support from [Ms F] dated 5 June 2018 was provided, stating:
·The applicant is related to me as my cousin sister and I have known her since she was born. She has been through a lot in her life back in Fiji, due to her choice of being a homosexual.
·Being forced into an arranged marriage to an opposite sex while being in a lesbian relationship for years has enormously affected her both emotionally and mentally.
·With all the negative views and discrimination against. her gender she has always been verbally bullied and mistreated by her family, religious groups and community as whole. it's her dream to live in this country permanently, the only place on earth she feels safe if permitted an opportunity to marry her future dream partner.
·[The applicant] has so far adapted well in her local community here in Australia. she has never experienced the freedom of her rights and equality as in Fiji as being an LGBT individual.
The applicant provided a page of typed country information (unsourced and unverified) from various dates (and undated) making assertions including from a 2005/2006 case; a statement that since 1 February 2010 private adult consensual and non-commercial male and female homosexual conduct is legal under the Crimes Decree 2010; that in April 2017 the Fiji Ministry of Health banned gay and bisexual men from donating blood and the Fiji Human Rights and Anti-Discrimination Commissioner said that he would investigate the policy; an assertion that the majority of Methodists/Catholics traditionally view same-sex relationships negatively, and Muslims consider that homosexuals need to be fixed; reports of hate crimes against LGBTI people in Fiji are rare although there was one possible high-profile case; an undated assertion that social mores relating to sexual orientation and gender identity tend to be conservative; a reference to 2013 marches being organised and an event celebrating LGBTI people being held in 2017 that was attended by many LGBTI activists as well as religious figures; and that the first gay pride parade occurred in 2018 and police provided support.
The hearing
The applicant appeared before the Tribunal on 20 July 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms C].

Some of the applicant’s evidence given at hearing is set out below:
·The applicant told the Tribunal that her protection visa application form and her statement were prepared by her.
·The applicant said that she is [Age] years old.
·She arrived in Australia [in] December 2016. When the applicant left Fiji it was not her intention to return to Fiji (in her s 424A response she states it was her intention when she left Fiji to come to Australia and claim asylum).
·Shortly after arriving in Australia, in about January/February 2017, she started to study a [course]. She studied this for 6 months, completing it successfully.
·It transpired from her evidence however that the Department had granted her a bridging visa which did not allow her to study during this period, and that she went to the Department to ask if she could study and although they told her she was only allowed to study for 6 weeks and she was not allowed to study anymore, she disregarded this and she kept on studying. When the Tribunal asked why she did that, she responded that she should not have done it, she just wanted to finish the course.
·She said that she lodged her protection visa application after she was given a bridging visa E (with no study/work rights). She stated that as she has not had the right to work, she has not worked. She is supported by her cousin. She has been looking after her cousin’s husband as her cousin and her children work. The husband had a [procedure] 20–30 years ago, and an infection, and he has trouble walking and he has numbness.
·When asked if there was anything else she has been doing in Australia apart from this, she said no.
·In Australia she has had no relationships or encounters. The Tribunal asked why and she said she just hasn’t met anyone. The Tribunal asked whether she tries to meet people and she responded that she is mostly at home, or she goes out with her cousin; she doesn’t try to meet people. The Tribunal put to her that it understood her evidence to be that she has been in Australia for almost 7 years and she has had no relationships or encounters. She agreed.
·The Tribunal asked about whether there is anything on her social media that would support her case about her sexual orientation and she said no.
·The Tribunal asked how many times she has been married and she said twice (to men, [Mr G], discussed further below, and [Mr D]). She could not recall the date of her first marriage; the Tribunal allowed her time to look for the marriage certificate but she could not find it. The applicant said that she married [Mr G] as a cover-up, and her marriage to [Mr D] only lasted 8 months from [April] 2016.
·The applicant claimed that her mother made her get a divorce from [Mr G] (the reasons changed from being because her mother didn’t like him because he gets drunk and mouthy; then she said that her mother wanted the applicant to marry [Mr D] because he is family).
·Later the reason why her mother wanted her to marry [Mr D] changed from her mother wanting her to divorce [Mr G], and to marry [Mr D] instead because he is family, to saying that her mother wanted her to marry [Mr D] because when she was in [Suburb 1] as a girl with her mother she had a relationship with a girl. She then changed her evidence and said, however, that her mother did not know about this. The applicant said when she returned to Fiji in 2008 she met a girl called [Ms H] 2 weeks later. They had a romantic relationship for 4 months. In 2009 she met [Ms I], she is 2 years older than the applicant, she is now [Age] years old. She had a relationship with [Ms I] from 2009–2012 and afterwards on and off. [Ms I] is known to her cousin and would come to the cousin’s daughter’s house. She then said that her mother wanted her to marry [Mr D] because she didn’t want her to date girls. She said that the applicant would bring shame to the family.
·The applicant said her mother found out about [Ms I] in 2010. When she found out she was really mad. The mother told the applicant that if she broke up with [Ms I], she would be her daughter again as she said if members of their church found out about the relationship, they would reject her (the mother) and she would be not able to attend full services at church. However, the church never found out.
·The Tribunal asked the applicant what treatment she received from her mother. She said that she would be kicked out of the house for up to 3 weeks at a time. Sometimes her mother said hurtful words to her.
·Her father was also upset when he found out (which was also about 5–6 years before she came to Australia). He was not as upset as her mother. He said he didn’t accept it but they didn’t really talk about it. She said they don’t really have a father–daughter relationship.
·Some relatives may have known because the mother would yell about the applicant. The Tribunal put to her that if this was a matter of such shame it was difficult to understand why her mother would shout about it which would let other people know.
·The community did not know.
·She confirmed that no one else did or said anything to her.
·She said that she always knew she liked girls. She has had 4 relationships: 2 marriages to men, and 2 lesbian relationships.
·The last time she had contact with [Mr D] was March 2016; when the Tribunal noted this could not have been the case (they married in April 2016) she said it was March 2017. At that time he asked her when she was coming back to Fiji and she said she wasn’t sure when. He was quite angry. She thinks she blocked him after 1 week as she couldn’t take it anymore.
·When the Tribunal asked if she was married now, she said no. The Tribunal asked her to explain this and she said he called me and he said he has filed for the divorce. The Tribunal asked her when he called and told her that. She changed her evidence and said that he called her mother and her mother told her. The Tribunal put to her that she had just changed her evidence; she agreed but did not offer an explanation.
·When the Tribunal asked her if she knows anything else about the divorce she said no. The Tribunal asked why not, was she not interested in knowing? She said: I just don’t want to… it’s been very rough… and when I got divorced when my mum called me she wasn’t happy about it. The Tribunal said that she said she did not know if she got divorced but in her evidence she has been speaking as if she is divorced. She then claimed that she never saw solid evidence of her divorce (but she continued to speak as if she was divorced). She said that the conversation with her mother occurred 2 years ago.
·She then explained that her mother was a [Church member] and that is why she is not happy: there are certain rules like adultery and those kinds of rules based on the Bible and so she was not happy with the applicant getting divorced from [Mr D]. A further reason was that the applicant’s husband is a distant relative of hers so her mother was not happy. The applicant said that she would be ashamed and embarrassed to be divorced. Her mother was also not happy that she came to Australia.
·The Tribunal asked the applicant what she fears if she returns and she said that she doesn’t want to go through what she went through again, from [Mr D], and she doesn’t want to be with him. The Tribunal put to her that she is divorced and she doesn’t have to go back to him. She said she was not sure if she was divorced and the Tribunal noted that she had previously easily obtained a divorce (from her first husband) so it would appear that she could do the same this time. The applicant agreed.
·She said she also fears that her mother may kick her out of the home again. The Tribunal noted she claimed that this had previously occurred and she has found somewhere to live for a short period of time then returned. She agreed.
·The Tribunal put to her that she claimed that homosexuality is illegal in Fiji, but it is not. It put to her that if she was a lesbian, it would think she would know whether or not it was legal. She said that in Australia people don’t get yelled at for being homosexual and going out to dinner but in Fiji they will be yelled at. The Tribunal put to her that she has been here for almost 7 years but she has not done anything like that, she has not gone out to dinner in such a situation. She responded that even though she is not going out for dinner, she is not being judged, she is being accepted. The Tribunal said to her that she should correct the Tribunal if this is wrong, but it does not appear that she is expressing herself as a lesbian in any way in Australia, and she said that is correct.
·The Tribunal noted that she had claimed in her statement that she had faced discrimination in Fiji, but she made no mention of this at hearing. It asked her to explain this and she said that people make rude comments that they should be with men when they walk down the street. She said that she is not perceived as gay generally, this would only happen when she was with the [Sport] team (she no longer plays [Sport]). She also said that it would happen if women held hands.
Other evidence and information is set out below.
The Tribunal put to the applicant during her evidence some inconsistencies and concerns when they arose. Before taking a break and then taking the witness’s evidence, the applicant acknowledged that her evidence was “all confusing” and inconsistent, saying she has said what she can remember.
After the witness’s evidence there were further concerns and the Tribunal raised a number of concerns, giving both the applicant and the witness a chance to say anything further.
At the end of the hearing, the Tribunal put to the applicant that although it had not made up its mind it has concerns with her credibility, her claim to be a lesbian and that she was in an abusive relationship. It said that it had concerns with the reliability of the witness’s evidence and it did not know how much weight it could put on the supporting letters. The Tribunal said that it would be sending a s.424A letter after the hearing.
At the end of the hearing the Tribunal said that it had considered the DFAT report and if it did not accept her claims that she was a lesbian who would want to go back and hold hands with a woman or would be perceived as a lesbian or that she was in an abusive relationship and faces a chance or risk of harm in the future, then having regard to country conditions it may not accept that she faces a real chance of serious harm or a real risk of significant harm. It asked if she wanted to say anything and she said she understands that there are doubts and the Tribunal is not convinced and the decision is up to the Tribunal. She said that if she goes back maybe she will be harmed and maybe she won’t be harmed. The Tribunal asked her to confirm the reason she faces harm if she returned and she said even though she is not communicating with her former husband, she knows him. They got married without him knowing she was a lesbian and after he found out he started to get abusive. She then said that she herself would feel hurt if she was married to someone who used to be gay, it’s like the feeling of being used, because that thing (ie the person’s sexuality) would always be there between the couple. The Tribunal put to the applicant that this does not sound like something a homosexual would say (namely that she would be hurt if she found out that her heterosexual husband used to be gay), rather it sounds like something a heterosexual would say. She agreed.
On 25 July 2023 the Tribunal sent a letter pursuant to s 424A of the Act, with a response due 8 August 2023. The applicant telephoned the Tribunal that day saying she would like an extension of time to respond. The Tribunal requested that she provide her reasons in writing. Instead, she provided her comments and response later that evening.[9] At the conclusion of her s 424A letter the applicant requested that she be enabled to remain living in Australia, which she considers to be her home country where she is safe and has many opportunities to be an upstanding and contributing member of her community.
[9] She had, in response, requested information as to the source of part of the information put; the Tribunal informed her that the source had already been footnoted in the s 424A letter; she did not offer any further comment or response.
CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS AND REASONS
The issue in this case is whether or not the applicant meets the definition of refugee or is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of reference
The applicant produced her passport to the Department, who accepted that she was a Fijian citizen and national, and assessed her claims against Fiji. The Tribunal was also provided her passport and accepts that she is a national of Fiji, and that the appropriate country of reference for the assessment of her refugee claim, and the receiving country for the purposes of her complementary protection claims, is Fiji.
Credibility
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well‑founded”, or that it is for the reason claimed. Similarly, the fact that the applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
Pursuant to s 5AAA of the Act, it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.
Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at 596; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at 169–70).
The applicant gave evidence which was inconsistent with her written materials, with her supporting statements, with the evidence of the witness, and which was also internally inconsistent. Further, the witness gave evidence which was inconsistent and changing. As noted above, concerns and inconsistencies were put to the applicant and when required pursuant to s 424A of the Act. These matters caused concerns with the credibility of the applicant and claims about her circumstances and background.
Firstly, the Tribunal was concerned with inconsistencies concerning how the applicant was treated because of her claimed sexuality/relationship with a woman in Fiji, as set out below:
Inconsistent evidence as to treatment received at the hands of the community/religious groups due to her sexuality/relationship with a woman in Fiji
·In her statement the applicant claimed that when she tried to seek support, the community turned their backs on her, judged her and discriminated against her. In her protection visa application she claimed that she was always being discriminated against and judged.
·Further, in [Ms C’s] statement to the Tribunal, she said that the applicant was bullied, harassed, discriminated against and embarrassed by the negative reactions of the religious groups that she was part of.
·Her mother’s supporting letter states that the community see the applicant differently which has brought shame to their family as a whole.
However, in her evidence to the Tribunal, the applicant said that the community and the church were unaware that she was a lesbian, the only people who knew were her mother who lived in Fiji, her father, the [Sport] team she played with (who she said were themselves LGBT), [Ms C’s] daughter and the applicant’s [sister], [Ms J], with whom she lived for a while.
She told the Tribunal that the only person who was upset was her mother. When asked about her mother’s reaction, she said she was upset; her mother told her that the applicant would be her daughter once again once she stopped having a lesbian relationship; sometimes her mother would tell her off or throw her out of the house and would tell the applicant that she could not take with her goods purchased for her by her mother.
The Tribunal asked about the reactions of others, and the applicant said that her sister said it was okay, her father found out about 5–6 years before she came to Australia and he was not happy, he said that he doesn’t accept it, but that was all. Apart from that, her mother would sometimes shout at her about her sexuality in front of people such as her aunt and older cousins. Although the applicant was given the opportunity, she did not suggest that she had ever been physically harmed by anyone, nor discriminated against, including by the community or religious groups she was part of.
The Tribunal put to the applicant that her evidence was inconsistent with her written materials: her mother’s letter said that the community sees the applicant differently which has brought shame to their family as a whole; the applicant’s statement says that the community knew she was gay and turned their backs on her. The Tribunal noted that the evidence in this regard was very inconsistent.
In response the applicant was silent. She then said that as far as she knows, the only people that maybe knew were those that heard her mother blasting it out when she was angry at the applicant, but outsiders did not know. The applicant did not explain why she had claimed in her statement, nor why her mother had claimed in her statement, that the community had an adverse attitude towards her.
The Tribunal put to her that her response did not explain her claims as to the behaviour of the whole community towards her in her statement. In response she said she meant to say in her statement that she had attended a community organisation for help but they had done nothing to assist her.
The Tribunal is not persuaded with her explanations. It does not accept that the applicant has been able to explain the significant inconsistencies between her own claims, as well as those who claim to support her (including her mother, the witness and the supporting letter from [Ms F]), as to how she has been treated by the community in Fiji for being a lesbian (or being perceived as a lesbian). If she had faced discrimination or adverse judgment from the community or religious groups, the Tribunal would have expected that she would have said so at hearing; instead she said this had not occurred. The Tribunal considers that this undermines the claim that she had been discriminated against and judged by the community/religious groups as well as her credibility.
Inconsistent evidence as to how her mother treated her: The Tribunal put to the applicant that she had given evidence at hearing that her mother would kick the applicant out of the house, and the applicant would stay away perhaps for up to 3 weeks at a time. However, in her mother’s supporting letter, she claimed that the applicant would run away from home until her mother would find where she was hiding and bring her back home. The applicant was unable to offer an explanation for this inconsistency. The Tribunal considers that this undermines the applicant’s claim as to how her mother would treat her because of her sexuality/relationship with a woman, and her credibility.

Inconsistent evidence as to who, within the family, rejected her because of her sexuality/ relationship with a woman: The Tribunal put to her that her mother’s letter says that her immediate family strongly rejected her because she is a lesbian, but the applicant’s evidence was that it is her mother who rejected her, not the immediate family. In response the applicant said that her family has not come up to her or said she is a disappointment but she could see it in their faces. The Tribunal noted that this explanation was inconsistent with her statement where she claimed: my whole family… turned their backs on me as they go on judging me, discriminated me, swore at me and it came to a point where I was being bashed by my own family and was told that I wasn’t welcome in the house or as a family member.
The Tribunal put to her that this was completely different to her evidence, including her evidence to the Tribunal, that no one had physically harmed her from her family (or the community; her only claim of physical harm was from [Mr D]). The applicant did not offer an explanation for this inconsistency except to say that her mother had kicked her out.
The Tribunal considers that this significant inconsistency, and the applicant’s inability to explain this, undermines the claim made by the applicant and on her behalf that her family strongly rejected her because of her sexuality/relationship with a woman, and the applicant’s credibility.
Inconsistent evidence as to physical harm suffered as a result of her sexuality/relationship with a woman: The Tribunal was concerned that significantly different claims were made and evidence was given in this regard:
·As noted above, in the applicant’s statement to the Department she claimed: it came to a point where I was being bashed by my own family.
·Further, [Ms C] gave evidence to the Tribunal that she witnessed both of the applicant’s parents take her into a room and start punching her; the reason she gave for the applicant being punched by her parents was probably because of the lesbian gossip about the applicant. [Ms C] said that when she walked into the room, she stopped them punching the applicant.
However, the applicant gave evidence at hearing that she was never harmed physically by anyone (except for her husband [Mr D]).
The Tribunal raised at hearing the concern that there was inconsistent evidence in this regard, including that while the applicant said that her parents had never physically harmed her, the witness claimed they had punched her. In response the cousin maintained she was present and saw this. The applicant did not provide an explanation for this inconsistency.
This inconsistency was also put to the applicant in the s 424A post-hearing letter however the applicant did not respond to or comment on this. The Tribunal considers that if the applicant had been punched by her parents due to her homosexuality she would have mentioned this at hearing (or provided an explanation for this omission when given the opportunity to respond to the s.424A letter), which indicates that the witness made up this claim during her evidence to support the applicant’s case (and that the applicant’s claim to have been bashed by her family in her statement was also made up).
The Tribunal considers that the above undermines the applicant’s claim that she is a lesbian who received adverse treatment for this reason (and it also undermines the reliability of the witness’s evidence as discussed later).
Further, [Ms C] also told the Tribunal that the boys in the family kept an eye on the applicant and they threatened that “if you do that again” (engage with a lesbian) they would harm her. This, however, was also inconsistent with the applicant’s own evidence; she made no claim at hearing that the boys in her family had threatened her for being a lesbian; the most she said was that she could “see it” in people’s faces but they never said anything to her.
The Tribunal put its concerns at hearing. The cousin’s explanation did not assist, as she said that she thinks the applicant was not present (which is difficult to understand as it was her claim that the threats were directly made to the applicant: “if you do that again…” (emphasis added). The applicant did not offer an explanation at hearing.
This inconsistency as to whether or not the applicant had received such threats from the boys in the family was also put in the s 424A letter however the applicant did not respond to this inconsistency. The Tribunal considers that if the applicant had been threatened by boys in the family that if she engaged in homosexual activity she would be harmed, she would have given this evidence to the Tribunal. She did not do so, which indicates that the witness made up this claim during her evidence to support the applicant’s case. This undermines the claim that the applicant is a lesbian who was the subject of adverse treatment for this reason (and it also undermines the reliability of the witness’s evidence as discussed later).
Further, the Tribunal discussed at hearing the letter from [Ms F] with the applicant. She said that [Ms F] is her cousin. The Tribunal asked what [Ms F] knows, and the applicant said that all she knows is that she knows about me and my partner [Ms I] and how my mum treats me. She does not know anything else. The Tribunal put to her that this evidence is inconsistent with the letter from [Ms F] who stated that the applicant: has always been verbally bullied and mistreated by her family, religious groups and the community as whole. The Tribunal noted that [Ms F’s] letter was also inconsistent with the applicant’s own evidence as to the treatment she had received. The Tribunal asked whether the applicant wanted to comment on this and she said no.
The Tribunal notes that the applicant has provided a support letter which is undermined by her own evidence; and that she did not offer any explanation for this. The Tribunal considers that this undermines the claim that the applicant is a lesbian who was the subject of adverse treatment for this reason.
Secondly, the Tribunal had concerns with the applicant’s evidence about her marriages.
In her protection visa application form, the applicant only referred to 1 previous marriage to a man that she entered into despite being homosexual. She claimed in that form that she could “never” marry the opposite sex, because she is a homosexual. However, the offshore file contained her marriage certificate to [Mr D], which showed that she had been married previously; she was a divorcee.[10] The Tribunal asked her at hearing how many times she had been married; she said she had been twice married to men. Before [Mr D], she married the first time to [Mr G]. She said this was a cover-up marriage she entered into with a friend, but that her mother found out and she then forced the applicant to get a divorce from [Mr G] and immediately marry [Mr D].
[10] As put pursuant to s 424A of the Act.
The applicant’s omission to mention this first marriage was difficult to understand. Given she mentioned one marriage to a man, and stated that it was against her sexuality, the Tribunal considered that she would have also mentioned her first marriage if it was entered into as a cover-up (to essentially protect her because she was homosexual, not because she willingly wanted to marry a man).
The Tribunal asked the applicant why she did not mention her first marriage in the statement to the Department and she said she did not think it was necessary. The Tribunal did not find this to be persuasive.
The Tribunal also put this omission to the applicant pursuant to s 424A of the Act, noting that her omission to mention that she was twice married to men may be indicative that she is heterosexual. She responded that she has been married twice, she was ashamed because she was young and conflicted about her sexual identity and she apologised for not providing the correct details.
This explanation, that she was conflicted about her sexual identity, was inconsistent with the explanation she gave to the Tribunal: she was always aware of her sexuality and she married [Mr G] to give her some cover. The Tribunal is not satisfied with her explanations for the omission, noting her claim in her protection visa application form that she is opposed to marrying men because she is a lesbian.
While the Tribunal understands that a lesbian may enter into a marriage for various reasons, including the reasons claimed by the applicant, this does not mean that this applicant has done so for the reasons claimed.
Thirdly, the Tribunal had additional concerns relating to evidence about her marriages:
·     The applicant made inconsistent claims about her desire to marry [Mr D]. When asked at hearing whether she had wanted to enter into the marriage with [Mr D], she said no. However, in her statement to the Department, she indicated that she had wanted to marry [Mr D]: marrying this guy ([Mr D]) thinking I could find peace and love and try and regain what I have lost and mend my broken heart, but it wasn’t quiet [sic] actually a happy ending. The Tribunal put the inconsistency to the applicant. She responded that she had wanted to find some peace and love; she did not explain why she said that she did not want to marry him.
·     The Tribunal put to her that if she had married [Mr D] because she wanted to find peace and love, then this conflicted with the claim that she attempted to run away the day before the wedding. The applicant responded that she did not try to run away before the wedding, she said that she only ran away once, after they were married to her sister’s place. The Tribunal put to her that according to her mother’s statement, the applicant had tried to run away the day before she was getting married but they had the uncles on guard to watch out for her, stopping her from running away. The applicant said she cannot offer an explanation for this inconsistency.
·     The applicant gave changing evidence as to why the relationship between her and her [Mr G] broke down. The applicant told the Tribunal that she married [Mr G] when she was aged about [Age] years; she was married to him for 1 year in 2014. Initially she said that the relationship finished because her mother did not accept it because he was a very bad boy, maybe because he drinks and he gets very mouthy. The Tribunal put to her that her mother forcing her to divorce [Mr G] was inconsistent with her earlier evidence that her mother was against divorces for religious reasons. She responded that her mother wanted the applicant to marry [Mr D] because he is family, and she was forced to marry him the next day after the divorce from [Mr G]. The Tribunal put to her that this did not make sense given it was her evidence that her relationship with [Mr G] finished in 2014, and that she married [Mr D] in April 2016. In response she said she will look for the marriage and divorce certificates in the break (she did not thereafter refer to these documents). The Tribunal was concerned that the applicant changed her evidence as to whether or not her mother believed in divorce, and that her evidence that she was forced to divorce [Mr G] to marry [Mr D] the next day was not possible given her evidence as to when she married [Mr D].
There was also inconsistent evidence from her cousin as to the reason why the applicant was forced to marry [Mr D]. Her cousin told the Tribunal that the applicant had a lesbian relationship with [Ms I] for 6 years, from 2008 to 2014, and in 2014 when the applicant’s mother found out, the consequence was that she forced the applicant to marry [Mr D]. This was inconsistent with other evidence namely:
·     The applicant said she married [Mr D] in April 2016, which undermined the cousin’s evidence that it was finding out about [Ms I] in 2014 which led to the applicant being forced to marry [Mr D].
·     The applicant herself said that she only had a relationship with [Ms I] from 2009 until 2012 (although she saw her on and off afterwards). Her evidence that the lesbian relationship with [Ms I] finished in 2012 (lasting 3 years) was inconsistent with the cousin’s evidence that the relationship endured for 6 years.
·     The applicant claimed, as noted above, that it was her mother’s discovery of her marriage of convenience to [Mr G] that led to her parents forcing her to divorce him and then immediately marry [Mr D] (compared to the cousin’s claim that it was the applicant’s mother’s discovery of the applicant’s lesbian relationship with [Ms I] that led to her forcing the applicant to marry [Mr D]).
·     The applicant’s evidence as to the consequences of her mother finding out about her lesbian relationship with [Ms I] (in 2010) was that her mother was really mad at the applicant, telling the applicant that when she breaks up with [Ms I], then she will accept the applicant as her daughter again (compared o the cousin’s evidence that the consequence of the applicant’s mother finding out about the applicant’s lesbian relationship with [Ms I] was that she forced the applicant to marry [Mr D]).
When concerns about the inconsistencies were raised at hearing, the cousin said she had not really kept a tab on these matters. The applicant was asked if she wanted to say anything about the concerns; she said no. The witness then said that she got all of the years wrong.
The Tribunal accepts that the applicant also claimed in her evidence that her mother forced her to marry [Mr D] because she liked girls, and that the cousin may have mixed this up. The Tribunal also accepts that these were not the cousin’s personal circumstances, but the circumstances of another person who was living in another country.
However, when the cousin gave this evidence, she did not say that she did not know about these matters; she gave specific evidence to the Tribunal indicating that she did know about these matters. The Tribunal also notes that the applicant at hearing did not seek to offer any explanation; it has taken into account her s 424A response where she said that the cousin was not privy to the exact dates of her relationships, which is why there is confusion.
The Tribunal notes that in the cousin’s support letters she said that she is the one who sponsored the applicant to come to Australia, the cousin said that she had had many visits back to Fiji, she had spoken to the applicant’s parents and she had seen the applicant back in Fiji on her visits. Further, as noted in the s.424A letter it is stated that the cousin is close to the applicant, and that the applicant has been living with her and supported by her for the last 7 years. Given these matters, and noting that her cousin wrote to the Department and Tribunal about the applicant’s personal circumstances, the Tribunal considers it reasonable that the cousin would know more of these details about the relationships and the reason why the applicant was forced to marry [Mr D]. The Tribunal was concerned with the inconsistent evidence in numerous respects: the length of time the applicant had a lesbian relationship (3 or 6 years) in Fiji, and whether she was forced to marry [Mr D] because her parents found out about her first marriage to [Mr G] or because they found out about her lesbian relationship. The Tribunal does place some weight on the inconsistencies in the cousin’s evidence about these matters as set out from paragraph 62 above).
Fourthly, the Tribunal noted that there was inconsistent evidence about the applicant’s claimed lesbian partner. The applicant told the Tribunal that she had a lesbian relationship in Fiji with [Ms I] who plays for [a Sport] team and that she was 2 years older than the applicant (who was born in [Year] and is aged [Age] years), thus indicating that her partner would now be aged [Age] years. The cousin’s evidence was also that the applicant’s partner had been a [Sport player].
The Tribunal referred to Departmental movement records which stated that [Ms I] was born on [Date], thus, she is now [Age] years of age, some 6 years older than the applicant[11]. The Tribunal considered that official government records would have the date of birth given by that person to the Department when making a visa application. This appeared to be a reliable source of information and when it was put to the applicant in the s.424A letter, she did not say in response that this date of birth was incorrect; she said that she stands by her claim that they were in a relationship. The Tribunal does not find this response to be persuasive.
[11] There was a further source of information about this [Sport] player but it contained a significantly different date of birth ([Year]) and the Tribunal considered that the Departmental records were more reliable.
The Tribunal considers that the Departmental records, which were not disputed by the applicant, are a reliable source of the age of her claimed former partner. The Tribunal considers it reasonable that the applicant would know the age of her former partner, noting her claim that they were in a relationship for a number of years, and she has not suggested a reason for her lack of knowledge of her former partner’s age (indeed she provided specific details of the age of her former partner, namely that she was 2 years older than the applicant).
The Tribunal considers that the applicant’s incorrect assertion of the age of [Ms I] undermines her claims that she was in a lesbian relationship with her as claimed.
Fifthly, the Tribunal had concerns about the claimed nature of the applicant’s relationship with [Mr D].
The Tribunal noted that the applicant’s portrayal of [Mr D] was of a controlling, abusive person: in her protection visa application form she claimed he abused her, he was controlling her and that she had to be a loyal wife to him. Further, the supporting letter from the applicant’s mother submitted by the applicant to the Department stated that [Mr D] would physically abuse the applicant if she even communicated with friends or neighbours, and he was complaining after the marriage that she would not sleep in the same bed as him.
The offshore visa application documents portrayed a different type of relationship. The applicant signed her offshore visitor visa application on 15 November 2016 and a supporting statement on 30 October 2016, in which she claimed that her husband was supporting her in taking a vacation to Australia. She produced evidence of that support, including her husband’s bank statement and his [deleted] card, as well as photos of him working on her farm, and their marriage certificate.
The Tribunal put to the applicant at hearing that her husband supporting her to go on a vacation (without him) to Australia after they had only been married for about 6 months, appeared to be at odds with the claims about his nature as claimed in the protection visa proceedings (controlling, abusive, violent, unhappy with her having contact with other people and not sleeping in the same bed as him). It said that it is difficult to see how her husband would let her, and support her, to go on vacation in Australia as he is so angry and upset at her. She responded that she doesn’t know why, she can’t explain it. The Tribunal does not find this to be a persuasive response.
The Tribunal put to the applicant that it was also difficult to understand why her husband would give her a bank statement to support her leaving him to go on vacation to Australia. In response she said that she told him she would go for Christmas to visit her cousin and come back again. The Tribunal referred her to her statement and noted that all the claims indicate that he would not support her going to Australia for a holiday, away from him. She responded that she asked him for his bank statement; she otherwise was unable to explain why a person so described would support her leaving him to go on a holiday to Australia.
In the s 424A letter the Tribunal suggested that her husband’s support of her vacation so early in their marriage indicates that they had a good marriage and undermines the claims that he abused her and would seek to cause her harm upon return because she left the marriage.

In her response she said that Fiji has a high domestic violence rate, 6.5 out of 10 women are a victim of abuse (she did not specify the source of this information) and that victims can be triggered. She said that she had to tell her husband so that she could satisfy the visitor visa requirements so she could obtain his card and other documents.
The Tribunal accepts that victims of domestic violence can face many difficulties; this does not mean however that the applicant’s relationship involved domestic violence.
The Tribunal considers that her husband did not object to, and supported her, to go on vacation, when there is no suggestion that he was obliged to do so, at a time when it is claimed she was not being the type of wife that he wanted her to be, and he was not wanting her to mix with others. The Tribunal considers that his support for her going on a holiday to Australia without him undermines that claimed nature of the relationship.
A further concern arose as a result of inconsistent evidence from the cousin, as it was the cousin’s evidence that the applicant’s abusive husband did not even know, let alone support, the applicant coming to Australia. The cousin claimed that the applicant and her husband were based in [Island], her daughter told her that she (the cousin) needed to get the applicant out of Fiji; the applicant was then assisted to physically escape; money was organised to get the applicant secretly away from her husband in [Island]. In order to escape, the applicant was taken to [Town 1], then [Town 2] in Suva. When clarification was sought, the cousin confirmed that the applicant’s husband didn’t know the applicant was coming to Australia; she was trying to get away from him, he really kept an eye on her, he would not have let her go, so the applicant had to leave in secret.
This evidence from the cousin was completely inconsistent with the applicant’s offshore visa application and her evidence to the Tribunal when discussing the support of her husband for her visitor visa application.
The applicant did not offer a credible explanation at hearing for this, and in her s 424A response the applicant repeated the response referred to in paragraph 77 above. The Tribunal considers that the applicant has not explained why the cousin gave such detailed, yet inconsistent evidence as to how the applicant was able to leave her abusive husband to visit the cousin in Australia and thus escape him. The Tribunal considers that this undermines the credibility of the claims about the nature of the relationship between the applicant and the husband (and the reliability of the witness).
A further concern in relation to the claimed nature of the applicant’s relationship with [Mr D] arose because the applicant provided inconsistent and changing evidence as to how often she was beaten by [Mr D]. She told the Tribunal that he started to beat her when he found out she was a lesbian, 2 months into the marriage. He would then get drunk and hit her and swear at her when he drank. When asked how often this was, she said he would drink almost every weekend.
The Tribunal put to the applicant that this was inconsistent with her statement, where she claimed that he would come home drunk every night and beat her up. She then changed her evidence and said that it was every night. The Tribunal was concerned that the applicant was prepared to change her evidence to respond to an inconsistency, and she did not explain why she changed her claim. The Tribunal considers that this is a significant change and undermines her claims that she was subjected to assaults by her husband, as well as her credibility.
Sixthly, the applicant gave inconsistent evidence relating to her occupations and addresses, which were relevant to her claims about her husband, where they were each located, and what she had been doing in Fiji.
In her protection visa application form, the only address she provided was “[Suburb 2]” (which is close to Suva), where she said she had resided since [Year].
She told the Tribunal, however, that:
·She was born in [Suburb 2] in Suva and she lived there for about [Number] years then came to Australia (2006).
·When she and her mother returned to Fiji in 2008, it was to [Suburb 2] however the applicant moved between her parents’ home (in [Suburb 2]) and her sister’s home in [Town 2]; she spent most of her time with her sister in [Town 2].
·She lived for 1 year in [Island] when she worked on [Island] at [Workplace 2] (2014).
·She then returned to Suva where she lived with her parents until she left Fiji for Australia (2016). She said that her husband lived with her at her parents’ home.
However, in her offshore visitor visa application signed 15 November 2016 and her supporting statement signed 30 October 2016 (the applicant confirmed at hearing that the signature on this statement was hers) she claimed that she resided at [Village] in [Island] in [Province]. The cousin also claimed to the Tribunal that the applicant was living in [Location] with her husband (2016) before she escaped him to come to Australia (as noted above). The claim that she was living in [Island] was inconsistent not only with her written materials provided to the Department in support of her protection visa application, but also with her evidence to the Tribunal.
Further claims made in her offshore visa application were inconsistent with what she presented in her protection visa proceedings. The applicant’s claims in her statement in support of her offshore visa application were that: her father was [overseas], he had left the applicant and her husband to look after the farm, she and her husband ([Mr D]) are commercial farmers, she wants to come on vacation to Australia because she loves farming and she wants to see more and learn more about farming to apply on return to her land in [Island] (and she also wants to visit her aunt and uncle).
Contrary to her claim in the offshore application that she was a professional farmer, in her protection visa application form, she listed a number of occupations, but did not claim to be a farmer. In her protection visa application form she claimed that in 2016 she worked in Suva as [an Occupation 1] at [Workplace 3]. This however was inconsistent with her evidence to the Tribunal that she ceased that work in 2015 and did not work at all in 2016. Further, in her evidence to the Tribunal she said her occupations were: [deleted]; there was no claim to be a farmer (professional or otherwise).
The Tribunal raised concerns at the end of the hearing about these matters with both the applicant and the cousin. The cousin was given an opportunity to comment but the Tribunal did not understand her explanation and said this to the cousin. The cousin said she was trying to get away from him. The Tribunal did not consider this to be an explanation for the inconsistent evidence. The applicant said that when she had given evidence that she and her husband lived with her parents in Suva, she meant that her husband lived on the island in [Island] and she lived in Suva, so they were mostly in between Suva and [Island]. During that time, they were in [Island] and her sister helped her to come to Australia. The Tribunal said it did not understand her response and it noted that it had already put to her that it was difficult to accept that the husband let her come. The applicant did not engage with this. The cousin then added that she was not in Fiji at the time. She then said that she had been in Fiji in September 2016 for the funeral of the applicant’s sister. The Tribunal accepts that the cousin was not in Fiji when the applicant left, but this does not explain the inconsistent evidence. The Tribunal did not find these explanations to be persuasive.
The Tribunal also put to the applicant pursuant to s 424A that the above indicates that inconsistent evidence has been given, with no satisfactory explanation, as to where she lived before she came to Australia, and concerning where she claimed to have lived with her husband (in Suva with her parents according to her evidence at hearing, while working for [Workplace 3] in Suva, according to her protection visa application or, according to her evidence at hearing, not working at all in 2016, or according to her offshore visa application, in [Island] working on her farm as a professional farmer with her husband). It was also put that her cousin’s evidence about where she was living in 2016 was inconsistent with her own claims.
In her s 424A response she said that as an indigenous Fijian their residential locations are different to the standard Caucasian understanding whereby they have a village home: hers is [Village] in [Island] and a mainland home: hers is [Suburb 2] in Suva. She travelled between the two, with visits to her sister in [Town 2]. The Tribunal has considered this response, however it notes that this is inconsistent with her evidence to the Tribunal where she specified different (inconsistent) times where she resided at [Island], Suva and at her sister’s home in [Town 2]. There is no explanation provided as to why she did not provide this information when initially asked at hearing to explain where she lived. The Tribunal does not find her explanation to be persuasive.
In her response concerning her occupations, she stated that she does have a farm in [Village] and as a farmer one cannot solely survive off the produce of the land because if they have adverse weather conditions such as cyclones etc., this can greatly affect the harvest therefore, to survive she had to get additional work at [Workplace 2] and as [an Occupation 1].
The applicant did not explain why she made no claim to be a farmer in her protection visa application or her evidence to the Tribunal. She has also not explained the inconsistency in her evidence relating to whether or not she was unemployed the year she came to Australia, or had been working at [Workplace 2] in [Island], or working at [Workplace 3] in Suva, or had been a farmer in [Island]. While the Tribunal accepts that cultural differences should be taken into account, the Tribunal is not satisfied that this explains all the inconsistencies in the evidence about where she lived and what she did in Fiji. Given that the inconsistent evidence even relates to where she claimed to be living (and working) with her husband, the Tribunal considers her credibility to be undermined about much of her background, including her marriage.
Seventhly, the Tribunal had further concerns about claims of the applicant’s parents’ attitudes.
In the applicant’s statement to the Department (signed 13 April 2017) she claimed her whole family turned their backs on her, they judged her, discriminated against her, swore at her, and she was being bashed by her whole family and told that she was not welcome in the house nor as a family member, to the extent that it made her want to commit suicide. She also claimed in her statement that her parents did not care that she was being beaten up every day when she was married, such that she suffered severe pain and migraines; this is what her family wanted to happen to her and so she tried to commit suicide again. Further in her protection visa application signed 30 March 2017 she stated that if she returned to Fiji she will be harmed, punished by her family for fleeing the country (having acted contrary to her family’s culture and tradition in being a homosexual and in leaving her marriage and not being loyal to her husband).
The applicant’s father: However, the applicant provided inconsistent claims about the nature of her relationship with her father and his actions towards her, which undermined the claims made in her statement:
·In support of her 2016 offshore visitor visa application the applicant produced her father’s bank statement, with the applicant stating that her father supported her vacation to Australia and would assist in funding it.
·The Tribunal noted that her father’s [Social media] account, in his name, [Mr B], with his photo, is open to the public. On 18 June 2017 he updated his profile picture making his cover photo a photo of the applicant. On 2 May 2019, the applicant[12] “loved” a post made by her father in [Country].
·Further, when the cousin posted on her [Social media] page photos of herself with the applicant (posted 13 and [April] 2017) and tagged the applicant’s father, he commented “nice pic”.
[12] The applicant’s [Social media] account is in the name [Account name], which she told the Tribunal was the name she used for her [Social media] account as it was based on family names.
The father making a photo of his daughter his cover picture on his public [Social media] account, and his positive comments on a photo of the applicant on the cousin’s [Social media] post, occurred 1 year after the applicant claims to have run away from her marriage in Fiji, and only a few months after she made her protection visa claims about the assaults, rejection and isolation from her family due to her homosexuality, as well as her claims that she will be punished, harmed and excluded from the family if she seeks to return.
The father’s support for her travel to Australia as set out in the offshore file occurred in late 2016, yet a few months later the applicant claimed that her family assaulted, rejected, isolated her and would continue to do so, to support a protection visa application. The applicant herself loved her father’s post in 2019.
When the Tribunal discussed these matters at hearing, the applicant said firstly that she could not recall that her father had given her his bank statement to support her application to come to Australia. Concerning the [Social media] postings, the Tribunal noted she had told the Tribunal that her father found out she was a lesbian and they did not have a father–daughter relationship; however on his public [Social media] account, after he knew she was a lesbian, he had made his cover/profile photo a photograph of the applicant (18 June 2017).
The applicant responded that he has a lot of social media accounts. This did not explain why he would do this. The Tribunal also noted that she had “loved” a social media post made by her father (2 May 2019), by putting a love heart on a post that her father had done. The Tribunal put to her that these matters seem to undermine her claims about her father and the type of relationship they had.
In addition to the above, which appeared to be inconsistent with the claims in her statement that her father (a family member) assaulted, rejected, isolated her and would continue to do so, the applicant also gave evidence to the Tribunal that was inconsistent with her statement about her father. As noted above, at hearing she did not claim that her father had ever assaulted her nor that he would do so upon her return; she told the Tribunal that they do not talk, they do not have a father–daughter relationship, they are not close (and he told her that he did not accept she is a lesbian).
When the Tribunal put to her the concerns with the different evidence about her father, she said that people have different ways of showing love to each other. While the Tribunal accepts that is true, it is not satisfied in this case that this can explain the changing characterisation of her father’s attitude towards her, from being verbally and physically violent, excluding and rejecting her, to actively supporting her to have a vacation which means she will be away from her husband, to making a photo of her as his public [Social media] cover photo.
In her s 424A response the applicant said that: her father had supported her application to come to Australia as he believed it would be best to leave what he considered bad influences. As a Fijian child one grows up in an environment whereby violence is a constant threat if one steps outside the social and cultural norms to which she was a victim. Although the social media posts are from a “significant” time after these events had taken place, the applicant contended they show what can be considered as healing of the relationship in terms of her father’s views towards her. However, just because someone may like a post or leave a positive comment does not mean that the deep-rooted feelings of hurt and resentment have healed fully and that there isn’t a risk still there which the applicant believes there is.
The Tribunal is not persuaded by this response. The applicant’s evidence at hearing was not that there had been a healing of her relationship with her father; rather she gave evidence that they did not have a father-daughter relationship. Although the Tribunal accepts that people can post on [Social media] and provide written and financial support for various reasons, the Tribunal considers that the father’s support for her vacation, and his making a photo of her his cover picture, undermines her claims in her statement that they had a relationship characterised by exclusion, rejection and physical assault.
The applicant’s mother: The Tribunal also noted that, in the applicant’s evidence to the Tribunal she claimed it was her mother who was the most abusive towards her in Fiji, but according to the letter she produced from her mother, her mother now supports her protection visa application.
The Tribunal put to the applicant that this was difficult to understand, especially as her support for the applicant to be granted a protection visa suggests that her mother supports the end of the relationship with [Mr D], but she had told the Tribunal that her mother does not agree with the end of the relationship. The applicant responded by saying that her mother wants her to be with her husband. The Tribunal put to her that if she stays in Australia, she will not be with him. The applicant agreed this is correct, and did not offer any other explanation.
The Tribunal considers that this inconsistent evidence undermines the applicant’s claims concerning her mother’s beliefs and wishes.
Eighthly, the Tribunal had concerns with the applicant’s preparedness to change her evidence in response to concerns raised with her own evidence. As noted above, the applicant told the Tribunal that when she left Fiji, it was not her intention to return to Fiji. When the Tribunal asked who knew about this at the time, the applicant said that her cousin knew that the applicant did not intend to return to Fiji. She discussed it with her cousin, and her cousin said she would help her and she knew that the applicant was coming to stay with her.
This, however, was inconsistent with the position taken by the cousin on numerous occasions including her cousin’s evidence to the Tribunal: she said that she supported the applicant to come to Australia but that she did not know the applicant was going to stay in Australia, she thought the applicant would visit Australia and then return to Fiji.
The cousin also made this claim in support of the applicant’s offshore visitor visa application: the cousin provided a letter dated 27 October 2016 stating that she wanted to sponsor the applicant to come to Australia for a holiday from [November] 2016 to [February] 2017, and she mentioned in the letter, on 3 separate occasions, that the purpose of the visit was for a holiday only.
Further, in support of the applicant’s protection visa application the cousin provided a letter dated 13 March 2017 to the Department when she stated that she sponsored the applicant to come for a visit and to have a break from her abusive husband, and in support of her application for review before the Tribunal the cousin provided a letter dated 7 June 2018 stating that she sponsored the applicant to pay us a visit.
However, if the applicant’s evidence to the Tribunal, that her cousin knew all along that she would be staying in Australia, was correct, then this caused significant concern with the credibility of the cousin, as it indicated that the cousin was prepared to write letters to the Department in support of 2 applications, and to the Tribunal in support of the review, claiming that she thought the applicant was only going to visit.

The Tribunal accepts that the applicant was educated and working in Fiji, but it is not satisfied that she has been honest concerning her work (nor where she lived).
The Tribunal does not accept that the applicant faces a real chance or real risk of being perceived as a lesbian or suffering adverse attention for this reason, nor does it accept that she faces a real chance of serious harm in her relationship or from her parents, family members, society or church for any reason.
The Tribunal does not accept that the applicant believes or actually faces a real chance of serious harm for the reasons of race, religion, nationality, membership of a particular social group or political opinion. The Tribunal is not satisfied that country information means that this applicant faces a real chance of serious harm.
The Tribunal has considered the applicant’s claims individually and on a cumulative basis, in the context of its findings that the applicant is not a credible witness concerning past events or future harm feared, as well as the relevant country information, and, apart from those claims accepted above, the Tribunal rejects all the various claims made and finds that she does not have a well-founded fear of persecution as a refugee for any of the reasons put forward by her or on her behalf.
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s 36(2)(aa) (see Attachment B, which provides a summary of the relevant terms). The Tribunal has accepted that the applicant will return to Fiji as a working age female and that she is educated and has some work experience. It accepts that she will return home to her husband, and it does not accept that she has problematic relationships with her family. The Tribunal has found that the applicant is not a witness of truth concerning her claims that she faces a real risk of significant harm.
The Tribunal is not satisfied that she faces a real risk of experiencing significant harm for any reason including sexuality, perceptions, her relationship or from her family.
On the evidence presently before it, 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 a receiving country, in this case Fiji, there is a real risk that she will suffer significant harm for the purposes of s 36(2)(aa) of the Act. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
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 any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Christine Cody
Member

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

There are a few LGBTI NGOs operating in Suva that may cover issues regionally for other Pacific countries. DFAT understands that they are relatively effective in raising awareness of LGBTI issues and dealing with authorities. However, in-country sources told DFAT that this needs to be understood in the context of overall low visibility of LGBTI people and LGBTI issues; LGBTI issues are rarely spoken of and raising awareness is a difficult task. There are few research studies of LGBTI issues in Fiji and it is difficult to observe or analyse patterns of discrimination and violence against LGBTI people.

Gay men and lesbians often do not come out to their families and are often not accepted when they do. This can cause significant problems because of the traditional role that families take in welfare during times of sickness or unemployment. LGBTI people may find more acceptance in Suva, particularly in wealthier circles. According to sources, societal belief in the efficacy of ‘corrective rape’ of lesbians remains prevalent in the indigenous Fijian community, although DFAT has no way of assessing or verifying the prevalence of such practices.

Twenty-one-year-old gay man, Iosefo Qionitoga Magnus was murdered in 2017 with no arrests made. A transgender woman, 23-year-old Akuila Salavuki, was found dead in a pool of blood in May 2018. Her accused murderer was acquitted. In-country sources told DFAT that when anti-LGBTI violence occurs it is more likely to be targeted than random, but that anti-LGBTI violence may be underreported which obscures any understanding of the prevalence of anti-LGBTI violence. Media articles about violence may not disclose that the violence was an anti-gay hate crime, for example.

In-country sources told DFAT that LGBTI individuals can experience societal discrimination when accessing goods and services. LGBTI issues are not discussed generally in Fijian society, and little data other than anecdotal reports exists to demonstrate that discrimination.

The tourism industry provides employment opportunities for LGBTI people, according to in-country sources. The tourism industry is highly international by its nature and is more inclusive of LGBTI people. It also provides an opportunity for people to work away from their families, who may have rejected them.

Transgender people report high levels of discrimination and abuse. Police promised to review claims of abuse directed towards transgender people on the Transgender Day of Remembrance (an international day to remember victims of anti-transgender violence) in 2018. Some transgender women are seen and may even be accepted as ‘entertainers’ but may find it difficult to find mainstream employment.

Overall, DFAT assesses that LGBTI Fijians are at a moderate risk of official and societal discrimination and a moderate risk of violence. Because of homophobia and transphobia, many LGBTI people may hide their identity. Taboos against reporting violence against LGBTI people also exist, which may make patterns difficult to identify.

[2023] AATA 4136

23 September 2023

Key Legal Topics

Areas of Law

Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness