1817431 (Refugee) - [2022] AATA 2981

1817431 (Refugee) [2022] AATA 2981 (7 July 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1817431
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Jane Marquard
DATE:7 July 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act;
(ii)that the second named applicant satisfies s 36(2)(aa) of the Migration Act; and
(iii)that the third named applicant satisfies s s36(2)(b)(i) of the Migration Act on the basis of membership of the same family unit as the first named applicant.

Statement made on 07 July 2022 at 10:37am
CATCHWORDS
REFUGEE – protection visa – Fiji – Federal Circuit Court remittal – ethnicity – Indo-Fijian – discrimination and harassment – no real chance of serious harm – particular social group – women in Fiji – culture and attitudes towards women in Fiji – husband’s lack of acknowledgement of own behaviour – no effective police protection – real chance of serious harm in the form of family or domestic violence – decision under review remitted
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth), ss 5, 36, 65, 423A, 499
Migration Regulations 1994 (Cth), Schedule 2, r 1.12
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
ABT16 v Minister for Home Affairs [2019] FCA 836
Applicant A v MIEA (1997) 190 CLR 225
Applicant A v Minister for Immigration and Ethnic Affairs (1996–97) 190 CLR 225
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chan v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Khawar (2002) 210 CLR 1
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Sujeendran Sivalingam v Minister for Immigration and Multicultural Affairs [1998] FCA 1167
Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76
SZEPZ v MIMA (2006) 159 FCR 291
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
BACKGROUND

The first named applicant is [an age]-year-old woman from [Town 1] in Fiji. The second named applicant is her son, aged [age] years. The third named applicant is her daughter, aged[age].
The first named applicant’s husband, [an age]-year old man from [City 1], Fiji, arrived in Australia on a visitor visa [in] October 2014. His application for review has been considered separately. The applicants arrived in Australia [in] January 2015 on visitor visas.
The applicants applied for protection visas under s 65 of the Migration Act 1958 (the Act) on 12 January 2015. The applicants sought protection on the basis of discrimination, violence and harassment against Indo-Fijians. A delegate of the Minister for Immigration and Border Protection refused to grant the visas on 21 August 2015. The delegate was not satisfied that the harm that the applicants claimed that they would suffer would amount to serious or significant harm. This Tribunal, differently constituted, affirmed that decision on 13 December 2016. The Tribunal differently constituted was not satisfied that the first named applicant or her husband were credible witnesses and did not accept their evidence about incidents of harm which allegedly took place in Fiji.
The matter is now before the Tribunal pursuant to an order of the Federal Circuit Court [in] June 2018. The court found that the Tribunal differently constituted failed to take into consideration a letter from the first named applicant that was emailed to the Tribunal on 22 November 2016. The court found that in doing so, the Tribunal failed to consider cogent evidentiary material, and therefore fell into jurisdictional error. The matter has been remitted by the Federal Circuit Court to this Tribunal for reconsideration. New claims were put before this Tribunal by the first named applicant, specifically, that she fears domestic and family violence from her husband and that the state of Fiji would withhold protection.
This Tribunal must determine whether the applicants meet the refugee or complementary protection criteria set out in the Act. Details of the relevant law are set out below, but in summary, in order to meet the refugee criterion the applicants must have a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. To meet the complementary protection criterion there must be substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed to their home country there is a real risk of significant harm.
SUMMARY OF RELEVANT LAW AND PRINCIPLES OF REVIEW
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations1994 (Cth) (the Regulations). Extracts of the relevant legislative provisions are set out in Attachment A to this decision.
An applicant must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c) of the Act. 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.
Refugee criterion
Section 36(2)(a) of the Act 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, owing to a well-founded fear of persecution, he or she is unable or unwilling to avail themself of the protection of that country: s 5H(1)(a) of the Act.
Under s 5J(1) of the Act, a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. There must be a real chance that he or she would be persecuted for one or more of those reasons, and the real chance of persecution must relate to all areas of the relevant country.
The High Court has found that persecution may be directed against a person as an individual or as a member of a group: Chan v MIEA (1989) 169 CLR 379 at 429 (Mason CJ). The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality: Applicant A v Minister for Immigration and Ethnic Affairs (1996–97) 190 CLR 225 at 233 (Brennan CJ).
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 of the Act, which are extracted in Attachment A to this decision.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s 36(2)(a) of the Act, he or she may nevertheless meet the criteria for the grant of the visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) of the Act.
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) of the Act, which are extracted in Attachment A to this decision.
The applicant must satisfy the statutory elements
It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA of the Act.
The applicant must satisfy the Tribunal that all of the statutory elements are made out (Abebe v Commonwealth of Australia (1999) 197 CLR 510).
The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to seek out evidence to support an applicant’s claim (ABT16 v Minister for Home Affairs [2019] FCA 836).
Mandatory considerations
In accordance with Ministerial Direction No.84[1], made under s 499 of the Act, the Tribunal must take account of the ‘Refugee Law Guidelines’[2] and ‘Complementary Protection Guidelines’[3] prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. While the Tribunal should have regard to policy as there is public interest in achieving consistency, Departmental policy is not binding on the Tribunal.[4]
[1] Ministerial Direction No.84, Consideration of Protection Visa applications, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, 24 June 2019
[2] Policy – Refugee and humanitarian – Refugee Law Guidelines, Section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines), Department of Home Affairs
[3] Policy – Refugee and humanitarian – Complementary Protection Guidelines, Department of Home Affairs
[4] Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Member of the same family unit
Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations to include a spouse, dependent child or de facto partner of the family head (reg 1.12(1)(a)).
What information can be considered on remittal?
Where a direction is given to reconstitute the Tribunal, the Administrative Appeals Tribunal Act1975 (Cth) requires the reconstituted Tribunal to continue the proceeding.[5] In completing a reconstituted review, the Tribunal may have regard to any record of the proceeding as previously constituted.[6] This includes any record of evidence taken in the proceeding. The Tribunal must determine the review by dealing with the issues as they present themselves at the time of its determination and according to the facts as the Tribunal finds them to be at that time.
[5] s.19D(4) of the Administrative Appeals Tribunal Act 1975 (Cth), inserted by the Tribunals Amalgamation Act 2015 (No.60 of 2015)
[6] s.19D(4) of the Administrative Appeals Tribunal Act 1975 (Cth), inserted by the Tribunals Amalgamation Act 2015 (No.60 of 2015). See also SZEPZ v MIMIA (2006) 159 FCR 291 at [39] and MIAC v SZGUR (2011) 241 CLR 594 at [50]
In SZEPZ v MIMA (2006) 159 FCR 291, a Full Court of the Federal Court found that, where a Refugee Review Tribunal decision has been set aside by a court and the matter remitted for reconsideration owing to a jurisdictional error, it does not follow that all the steps and procedures taken in arriving at that invalid decision are themselves invalid. The Tribunal still has before it the material that was obtained when the decision that had been set aside was made and is obliged to continue and complete the particular review and not to commence a new review.[7]
[7] MZXRE v MIAC (2009) 176 FCR 552 at [5] North and Rares JJ
EVIDENCE CONSIDERED IN THIS REVIEW
The Tribunal has considered evidence and submissions made to the Department, other Departmental records pertaining to the applicants, evidence to the Tribunal and independent sources about Fiji. The Tribunal has also considered the material provided and the oral evidence given at the previous hearing held by the Tribunal, differently constituted.
Independent sources
The Tribunal has considered a range of country information, which is referred to in the findings.
By way of background, the recent DFAT Report notes that Fiji is comprised of 300 islands and has a population of 940,000. The two main ethnic groups are the Melanesian iTaukei and Indo-Fijians, descendants of colonial sugar cane workers. About a third of the population are Indo-Fijians, following large-scale emigration. The current Prime Minister Josaia Voreqe (Frank) Bainimarama launched a fourth coup d’etat in 2006. He later introduced the 2013 Constitution that abolished race-based voter rolls and quotas on parliamentary seats. His FijiFirst party won the 2014 and 2018 elections. The World Bank defines Fiji as an upper-middle income country, which was badly affected by the COVID-19 pandemic. About 30 per cent of the population live in poverty.[8]
[8] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Fiji’, 20 May 2022
Summary of evidence in Department files
The applicants provided details of their claims in application forms provided to the Department, as well as supporting documents. The first named applicant and her husband also attended interviews with a delegate of the Department.
A summary of their evidence follows.
The applicants are from Fiji and of Indo-Fijian background. They are Sunni Muslims and speak Hindi.
The first named applicant’s father, brother and sister live in [Town 1], Fiji. She also lived in [Town 1] from [year] to 2001, and then in [City 1]. At the Department interview, she said that her brother was working and had [children]. Her sister was not working and looked after [a number of] children.
Her husband lived in [City 1] until he came to Australia. His mother and one sister live in Fiji, one sister lives in Australia and another sister lives in [Country 1]. Her husband completed [College] in 1991 and then a course in [an institution] of Fiji. He worked at [at a workplace] between 1999 and 2000 and then as [an Occupation 1] [at a workplace] between 2002 and 2005.
The first named applicant attended [College] in 1996. She then completed a [qualification] at [an] Institute in 2001. In 2013 she completed [another qualification] at [university]. She worked as [an Occupation 3] in [City 1] from 1996 to 2001 then was self-employed as a tailor until 2014.
The first named applicant and her husband married in November 2002 in [City 1]. They rented a house in the squatter settlement in [City 1] from 2002 until they left for Australia. They paid rent to indigenous landowners. The first named applicant said that they are practising Muslims, who pray, donate, celebrate festivals, contribute to zakat and go to the mosque.
The applicants stated in their applications that they left Fiji because of discrimination against Indo-Fijians. They said there were ‘problems’ in the squatter settlements. They said that they were unable to own land.
The first named applicant said that her parents had land problems with Fijians. Her father was a casual labourer. She said that at the wedding invited Fijians asked for more food after dinner, but it was ‘forcefully done, which was fearful’. She said that they had to pay rent for land but her husband’s income was low and they could not afford to pay. She said that locals would often come to her house asking for money if there was a funeral. If she refused to give money to the Fijians they would tell her to move from the area.
Asked by the Department what they thought would happen to them if they returned, the applicant and her husband said that they would ‘face the same problems as before’. The first named applicant’s husband said that he was ‘scolded by neck (throat) by some Fijians. My wife was forcefully attempted to be kissed by a Fijian. Fijians taking revenge of us (eg. In village shops they take snacks from my kids). Group of Fijians came asking for money, from my wife at night-time while I was not there’. He said that he did not seek help as police do not have authority over Fijian landowners. He could not move anywhere as Fijians own land everywhere.
The applicants said in a statement accompanying the protection visa application that in December 2014 when the husband was in Australia, three Fijian men came to the door and asked the first named applicant for money. These men said that the first named applicant had to stop sewing as only Fijians can sew and sell. The next day they came to tell her to sew clothes for family members and they tried to come near her and kiss her.
In the statement accompanying the application, the applicants said that the son of the landowner came with a few other indigenous Fijians to the applicants’ house asking for land money and when the first named applicant’s husband refused, they held his neck. The applicant and her husband reported this to the police but were hassled by the landowners as a result. They then gave these local Fijians some money. The first named applicant confirmed at the Department interview that her husband was strangled by the neck, even though they had paid the rent. Her husband gave evidence at the Department interview held in May 2015 that about two years prior, the landowner’s nephew [Mr A], came to the house demanding money even though the rent was paid. He said that the door was open, [Mr A] came in and grabbed his neck. He said that he reported it to the police, who said they would warn [Mr A]. He said that [Mr A] did not come again.
At the Department interview, the first named applicant said that when they went for prayers the Fijian people ‘created trouble’ for them. She said that they ‘usually come to our house, every time ask for money and sometimes are drunk and ask for matches and glasses. They want extra money even though we are paying for the land.’ She said that sometimes they screamed outside if she did not answer the door. She said that the applicants had not experienced any other problems relating to religion. At the interview, she said that she came to Australia because some of the Fijians went to her house when her husband was not there, although usually they did not come if he was home. She said that they asked for money and matches.
She also said that near Christmas, at 7.30pm three drunk Fijians came to the house when her husband was not there and asked for money and for her to sew clothes. She told them she did not have money and gave them clothes for free, but they still stayed. She said that she had told them that she would ring the police. She rang the police but they did not come. When they heard that she had rung the police the men took the clothes and ran away. She said that they came close to her and tried to kiss her.
She said that one day the Fijians punched her husband because they wanted money for cigarettes. He told her about it. She said that her son was hit in the balls and he cannot go to the village shops as the Fijians grab his snacks.
She said that when her husband came to Australia he had no intention of seeking protection, but she rang him and told him what the Fijians were doing. She did have the intention of seeking protection in Australia. She said that she prepared the forms, and no-one helped her.
She said that they cannot own land in Fiji. She said that there were other Indians in her neighbourhood. She said that Fijians would torture her if she returned. She said that they may have broken into her house and stolen things. She said that there had been murders of Indians in Fiji.

She said that the applicants were not members of any political groups in Fiji.
Her husband did not mention the Christmas incident at the Department interview, despite being asked about the problems his wife faced, and why she needed protection.
Summary of evidence before the Tribunal differently constituted
The applicant and her husband appeared before the Tribunal differently constituted on 8 November 2016. In addition to repeating the claims made to the Department, the first named applicant also said that she fears being raped on return to Fiji, as a woman and as an Indo-Fijian woman. She claimed that her son would see her being sexually assaulted, and her daughter may ‘face the same problems’.
She said that three Fijians came to her door in Christmas 2014 and were drunk and swearing. She saw them coming from the roadside at about 5.30pm. They knocked and she did not open the door. They then started shouting so she opened the door and they came inside. They wanted money but she did not have any, so she gave them clothes. She said that they did not go away. Two were in the sitting room and one followed her into the bedroom and kissed her four times and started touching her body parts and breasts. She said that she pushed him away and her daughter cried, and she said she would call the police and they left. She said that it all happened on one day.
Her husband said that his wife and children remained at their home prior to departure for Australia. The first named applicant agreed this was the case. However later in the hearing she said that the day after the Christmas 2014 incident she locked up the house and went to her close friend’s place, where she remained until she came to Australia. She could not recall the name of her friend. She later said that her husband did not know that she went to the friend’s house.
The first named applicant said that there were two incidents when her husband was beaten, as set out in police reports provided. In 2013 [Mr A], the landowner’ nephew, came by himself to the house asking for money. When her husband refused to pay, he ‘strangled’ her husband inside the house then picked up a stone and hit him on the head. She said she witnessed it and there was blood everywhere and her husband’s sister took her husband to hospital. He had stitches and was out of work for three months, and he now has a scar on his head. The police came the next day and said that they would warn [Mr A].
Her husband referred to two different incidents, to which he said the police reports relate. He said that these were the only incidents of harm which took place. In the first incident, he was attacked while walking in 2014. In the other, a group of indigenous Fijians came to his house in 2013 and he went outside and was hit on the head.
In a letter dated 22 November 2016, the applicants responded to a natural justice letter sent by the Tribunal, which put to the applicants a number of concerns the Tribunal (differently constituted) had concerning the credibility of the evidence. The responses given by the applicants were not referred to in the findings of the Tribunal differently constituted and for this reason the matter was remitted by the court to this Tribunal for reconsideration. This Tribunal has considered the response of 22 November 2016, and the evidence is discussed later in this decision. The first named applicant said in the response that ‘it is a true incident that Fijians come and threaten Indians. We are unaware of the time when they would come. Usually, they cause certain harassments and torture to Indians when they are in need of money’. She said that rapes are increasing in the country. She had no ‘personal evidence’ because she called the police ‘at that certain occasion’, but they did not come. She said that her family fears returning because of race and nationality.
Evidence before this Tribunal
The first named applicant and her husband appeared before the Tribunal on 14 December 2021 by video to give evidence and present arguments. It became apparent from the subject matter that the case should be heard in person, so the matter was adjourned. There was some delay due to restrictions imposed by the COVID-19 pandemic, and the hearing was finally scheduled on 7 June 2022. An interpreter of Hindi assisted the Tribunal.
It was explained to them that while their matter is being considered afresh, their evidence to the Tribunal previously constituted would form part of the Tribunal consideration.
A summary of their oral and written evidence is set out below, with some of the evidence also referred to in the findings.
Evidence of the first named applicant
At the first Tribunal hearing by video on 14 December 2021, the first named applicant confirmed that she was alone in the room and that her husband was in a separate room.
She confirmed that she was born in [Town 1] in Fiji, which is on the mainland. Her parents, who have passed away, both came from that area. When she was growing up her father was [an occupation], and her mother was a housewife. She has one brother and one sister. They are living in [Town 1]. They are both married with children. Her brother was working [but] is currently looking for a job. Her sister is a housewife and her brother-in-law is working as [an Occupation 2] part-time. She also has quite a large extended family including aunts and cousins in [Town 1].
She said that [Town 1] is an area of mixed ethnicity, but she mixed only with Indo-Fijian people.
She said that her husband comes from [Town 2] but his family have moved to [City 1]. He has two sisters and other family members in [City 1]. His sisters are housewives and look after the children, and their husbands had jobs at the time the applicants left Fiji. His sisters live with their in-laws. Her husband’s mother is living in [City 1].
The first named applicant went to primary and high school in [Town 1]. After getting married she studied [a course]. Before the wedding, she had to work due to her parents’ financial situation. She worked in a [factory] and as [an Occupation 3] but after the coup d’etat there was ‘no more work’. She said that she also studied [another course]. After her wedding, she sewed for others and studied part-time. People gave her orders and she sewed for them.
She said that her husband studied at [an] institute in Fiji. He worked as [an Occupation 1] as well as [an Occupation 2] as there were not always [Occupation 2] jobs available. He also did some [other] jobs. When he came to Australia, he came for a visit, not for work.
She and her husband moved from [Town 1] to [City 1] after they married in 2002. They moved into a house with her mother-in-law, as her father-in-law had died. Her mother-in-law later moved in with her daughters, and the first named applicant lived alone with her husband. They lived there until they came to Australia. She said she moved from there to another location with a family she knew from the village ‘after a criminal incident for a while’. This family said that she could live there for a while. She was asked the names of the friends with whom she stayed. She said that she did not know their original names but only knew the nickname of their son. She said that she could not recall how long she moved out for. Asked if she could provide a rough estimate of how long she lived in the different location, she said that she cannot calculate how long it was. She said other people were supporting her. Her brother and sister live in [Town 1] and her brother-in-law was too far away and had domestic duties. They could not help her financially so these other people ‘helped them with everything’. She was asked if it was a period of days, weeks or months. She said that she forgot. She was asked why she could not remember how long she stayed there for. She said that it was seven years ago, and she had forgotten. She said that she can ‘only remember a few things such as the episode when a man came to the house’.
She said that the area they lived in was ‘sort of a village’ comprised mainly of indigenous Fijians but there was a minority of Indians in the area. The indigenous Fijians lived in a poor area nearby. She said that the Indo-Fijians got together for gatherings and festivals. They were not all Muslims, but some were. The men would go to mosque in the town, which was about 45 to 50 minutes away by bus. There was a Muslim Indian school in the town which her son attended. She was asked if she had indigenous Fijian friends in [City 1]. She said that she sewed ‘bula’ shirts and sulus for indigenous Fijians, and just said ‘hello, hi’ with them. She said that she only talked to the wives and not to the men.
The Tribunal asked the first named applicant why she fears returning to Fiji. She said that she did not ‘ask anyone if my house is still there and I do not know if it is still there.’ She said that an ‘incident that happened to me causes me upset and gives me flashbacks’. She said that the incident that happened was witnessed by her children and caused them both to be scared. She said that if she returned, the locals would know her, as she had a sewing business, so the ‘same incident could happen’ to her. She said that she could not go to [Town 1] due to crime. The applicant told the Tribunal that her sister had informed her that ‘natives’ raped the applicant’s niece, who is in Year [grade] in [Town 1], about three months prior to the Tribunal hearing. Her sister told the applicant that she and her husband were out at the time. They live in an old-fashioned house in [Town 1], and the windows do not lock. While they were out, men got in and raped her niece. Her sister took her daughter for a medical check-up and they confirmed that she was raped but despite reporting it to the police, the police took no action.
The first named applicant was asked by the Tribunal what she thought would happen to her if she returns to Fiji. She said that she has a ‘domestic violence issue’. She said that she could not provide to the Tribunal the name of the person whom she believes will inflict domestic violence on her. She said that she is ‘only talking to my brother and sister about this’. The Tribunal assured her that the Tribunal hearing was confidential and that if she had fears of domestic violence, she should share them with the Tribunal. She said that her parents have passed away and she thinks that if she went back to Fiji, domestic violence would be committed on her. She said that when she was in Fiji, indigenous people touched her private parts. She said that this may have been why her husband committed domestic violence on her. She reported it to the police in Australia and it went to court. The court ‘settled the case’ with conditions. She said that in Fiji if you report domestic violence to the police, they do not take action, but in Australia they have taken action. She said that the domestic violence happened twice, in 2015 and 2019. The court issued an Apprehended Violence Order (AVO), but she is not sure of the conditions. She said that her husband has not committed domestic violence since 2019. She was asked if she was fearful of further domestic violence. She said that she is afraid he will do it again. She said that she is protected in Australia but will not be in Fiji.
She was asked why she did not discuss these issues when previously before the Tribunal. She said that she told the previous Tribunal member. She said that she ‘mentioned this’ in her ‘response’.
The Tribunal asked the applicant if the information about her fears of domestic violence could be discussed with her husband. She said, ‘please do not ask him’. She said that she ‘does not know what would happen’. She said that she works in a [particular workplace] so does not want to talk to him about it and ‘cause problems’.
She was asked if she has considered leaving her husband because of his domestic violence. She said that she did not consider it because her daughter was upset and always crying. She was asked if she had any support from counselling or domestic violence support services. She said that ‘one lady’ gave her counselling and a case worker is supporting her.
The first named applicant provided the Tribunal with an email address at which she could be contacted privately. She also said she would provide police and court reports to the Tribunal, which were later provided. At this point the first hearing was adjourned.
In written submissions the first named applicant said that she and the children fear that if they return to Fiji her husband may act violently towards her and the children. She said that:
domestic violence is not taken seriously in Fiji like it is here and there would be no effective deterrent against (my husband) harming us if we were over there. I would be too scared to live with him in Fiji in case he hurt me again or tried to take the children. For a long time, my son was too scared to be with (my husband). In Fiji, the police will not protect us. They say they are coming but they don’t come. My parents have passed away and my brother and sister live in [Town 1]. If I went to live with siblings, (My husband) will come and find me and the children and hurt us. The police will not help us. I could not live on my own with the children somewhere else in Fiji because I have no other support networks. I would not be able to find a job because it is too difficult to find a job. My brother and sister cannot find employment. I would be harassed by local Fijians. I would be too stressed to find employment and would not be able to support myself and the children. If I did live on my own in Fiji with the children, I fear that (my husband) will track us down to find the children. We will not be protected by police. I am also scared of (my husband’s) family. His mother lives in [City 1] (his father has passed away) and she has already threatened me. He has two brothers and three sisters who also live in [City 1] in different areas. At the moment they refuse to speak to me. I fear that they will cause problems for me if I return to Fiji and ask why I called the police in Australia. I fear that they will try and take my children from me and be violent towards me. One of their relatives has already helped (my husband) take my son from me in Australia.
In around March 2015 when we were staying at the house of [Ms B] (my husband’s sister) she became unhappy about us living there. She used to pick fights with me over trivial issues. We had an argument and there was a lot of tension. She started yelling and screaming at me. I told (my husband) that we needed to move out and find our own place to rent. (My husband) told me that we could not afford to rent our own place. I told him I did not want to stay there. His sister was treating me like a servant. I had to clean and do all the washing. He became angry. He wanted me to keep quiet. He then forced his fingers inside my mouth and scratched inside my mouth. My mouth bled and I cleaned it up with a tissue.
Later that day when we were out, I refused to go home. I told (my husband) to drive us to the house of my friend, [Ms C]. The children and I stayed there. [Ms C] contacted the [Suburb 1] police and I reported the incident to them. In the evening the [Suburb 1] police came to [Ms C]’s house and took photos of my mouth. I don’t know whether the police took action against (my husband). I refused to come home unless he found us our own place to rent. We stayed at [Ms C]'s for around one or two months.
One afternoon (I cannot remember the date) (my husband) came to [Ms C]'s house and we were not there. He telephoned me to ask where I was. I told him I was at the shopping mall in [Suburb 1] with [Ms C] and the children doing some shopping. (My husband) then turned up at the mall with his sister's son (from her former husband), [Mr B]. I saw that they were talking to my son. (My husband) told me that my son no longer wanted to stay with me. I disagreed. I was carrying our passports in my handbag and (my husband) took my son’s passport as well. [Mr B] also demanded that I give him my phone because his mother had bought the phone for me and said that if I didn’t give him the phone he would make a police report saying that I took his mother’s phone, so I gave it to him. (My husband) and [Mr B] took my son and left the shops together. I was extremely upset but I did not want to argue. [Ms C] witnessed it all.
The next day I reported the incident to my caseworker[at] [SERVICE PROVIDER]. [The caseworker] telephoned [Suburb 1] police. The police came to [SERVICE PROVIDER] and drove me to [Ms B’s] house. The police spoke with [Ms B] and (my husband) The police told (my husband) that he must allow my son to return to me or he would be arrested. The police then returned my son to me. I don’t know if the police took any action against (my husband).
[Ms B] was angry that I had reported (my husband) to the police. I don’t remember the exact date, but following this the police telephoned me and said that they wanted to see me at [Suburb 2] police station. I attended the police station and they arrested me on the basis of a false police report. When my son had stayed at [Ms B]’s place, she told [Mr B]to take him to the police and told my son to make a false report that I had assaulted him and he did not want to stay with me. I denied the assault and explained what had happened. The police released me and took no further action against me. When the police questioned my son at his school, he told them that I had not assaulted him and that [Ms B] had told him to make a false statement against me.
After initially staying with [Ms C], [SERVICE PROVIDER] arranged some accommodation for me and my kids so we moved out of [Ms C]’s place and moved into the [SERVICE PROVIDER] accommodation for a little while. I don’t remember how long it was but it may have been a few weeks. After this, [name deleted] rented a unit at [Suburb 2]. I moved into the unit with him and the children. We could not afford furniture. We had no mattresses, only blankets. On Christmas Day 2019 I returned home from work. (My husband) was sleeping on the bed. I went to have shower and I saw some wet spit on the pillow. I asked him whether he had wiped his mouth there. (My husband) got angry and had a cigarette on the balcony. We argued and he punched me in the mouth. I had a bloody lip and my tooth was loose.
My daughter was in the living room and could hear it all. I telephoned the [Suburb 2] police. The police came and arrested him and obtained an ADVO against him.
After that incident, my husband) and I separated and we were no longer living together. One day while we were separated (my husband) came into our unit and left groceries there. He was arguing with my son. They were in the living room and I was in the back of the house so I did not see their argument. I told (my husband) to leave and he did. He was in breach of the ADVO. Without me knowing, my son went to the police and reported (my husband). I don’t know what my son told the police but the police asked me for a statement. They asked if (my husband) had assaulted me and I told them he had not.
In 2020, the police took out an ADVO against (my husband) to protect my son. I am not sure why. My son won’t tell me what he told the police so I have stopped asking.
We had to go in Court in January 2021 for (my husband’s) breach of my ADVO. After (my husband’s) court case was resolved and the ADVO was varied, (my husband) came back to the apartment to live with me and the kids. (My husband) is no longer prevented from approaching me or contacting me.
We are living together again now. (My husband) has not harmed me since coming back. I believe that his involvement with the police and courts in Australia have scared him and he is too fearful to harm us again whilst in Australia. However, law enforcement for domestic violence is weak in Fiji and I believe that if we had to return to Fiji there would be nothing to stop him from harming us over there. I believe that if we went back to Fiji it is likely that he would hurt me again and I believe that he would take the children away from me.

The Tribunal hearing resumed on 7 June 2022. At this hearing separate evidence was taken from the first named applicant and her husband. The first named applicant confirmed that she was making two sets of claims about fearing returning to Fiji. The first was fear of violence as an Indo-Fijian woman. The second was fear that her husband would resort to domestic and family violence in Fiji because she is a woman, and there is no effective protection available in Fiji for victims of domestic and family violence.
The Tribunal asked the applicant to comment on her statement that she did not want her husband to know about the domestic violence claims as she did not know what would happen. She said that at the time the hearing was through a Zoom link so she was afraid. She said that her husband was aware that the Tribunal knew about the domestic violence in the past as he had overheard something in the Zoom hearing, but he did not know that she had made claims to fear domestic violence in the future. She said that she is not afraid that her husband would harm her in Australia as the interactions with the police and the court system had made him very fearful and he is afraid of his visa being cancelled. However she believes that if he returns to Fiji, he would harm her and her son, as the prevailing culture which discriminates and disrespects women would influence him. She said that at the moment in Australia her husband is showing her respect.
The Tribunal noted that legislation in Australia recognises that ‘violence’ includes physical, sexual, emotional and psychological abuse or injury,[9] as well as conduct designed to exert power by restricting access to financial, familial and cultural resources and limiting social autonomy, sometimes referred to as coercive control. She was asked if her husband had inflicted other types of abuse in addition to the instances of violence listed in the police reports and her statement. She said that he had not been violent or abusive after they were married or while in Fiji, but he had changed in Australia. The first time he was violent was in 2015, as set out in her statement. She said that there was conflict with her husband’s sister who never helped them and encourages the applicant’s husband to save money to return to Fiji. She said that her husband got angry and took it out on her. He told her he was not sleeping and became stressed and pressured and ‘his mind was not working’. She said that he had said something bad to her in 2019 but she could not remember what it was. She said that sometimes her husband tries to control her. He wants the family to ‘follow his way of living’. She said this includes what they do around the house, and going to bed, and what they eat. She said that she has told him it is not just him who controls their lives. She said that there were no other incidents of physical violence besides those described in her statements. She said that he has not assaulted her son again, but it was ‘not good’ that he assaulted a teenager.
[9] >
She said that they are both saving for the children. Her husband pays for rent, electricity and groceries, and she provides money for meat and fish, and Opal cards and personal expenses and she is putting the rest of their money into savings. They are jointly working towards the future but have separate bank accounts.
She was asked if she knew what his attitudes to women are. She said that when he was arrested, he could not sleep at night. She said that he does not understand that men and women are equal because in Fiji, men are superior to women. She said that there are no rights for women in Fiji. When he committed violence on her it came from a deep-seated belief in Fiji that women are not equal to men.
She said that he gets on with the children ‘ok’. She said that if he gets angry she tells him to calm down and not to talk to the kids with a raised voice. She said that recently he is not raising his voice or assaulting his children. She said that he is scared of the police. She said that her son is scared of him but at home she is always there.
She said that she fears that if they return to Fiji, there will be no police protection for her and the children, and she fears her husband will assault them. She said that his family think that she has done the wrong thing by reporting him. She fears that they will encourage him to harm her. She fears he and family members will fight with her. She fears that he would be violent towards her and the children.
She said that she fears the police would not respond if she called them for assistance in Fiji. The reason for her fear is that she called them in the past when there was a crime committed, and they did not come. She said that her sister in Fiji had a similar experience. His family would also commit violence, for example in Australia they made a false report about her. The police did not believe them.
She was asked why her husband would inflict violence on her in Fiji if he had not done so prior to her coming to live in Australia. She said that she fears him because the incidents in Australia have been severe. She said that after the police took him away in a police car he was kept in a small space and he said that he could not breathe. This has kept him from committing further violence in Australia, however if he returned to Fiji he would not be constrained. She said that she is not sure that he agrees that he assaulted her and her son. He has not taken responsibility. She said that he was angry at her for reporting him. He does not say that he is angry anymore, but she does not know if he is ‘angry inside’.
She said that they were living separately after he assaulted her and while he was on the AVO he stayed with his sister. She said that after the 2020 incident she was very upset and sick. She had bruises around her mouth and had to give up work. She agreed to take him back because her daughter was sad and wanted him to return, and she felt that he would not harm her as he fears the police. She said that she has a gentle heart, so took him back. She said that she feels maybe he has learnt his lesson and she wants to move forward.
The first named applicant confirmed that her husband was convicted of an offence and had to do community service.
She said that she was not seeing a counsellor at the moment because it was too difficult to fit in with work.
The applicant was asked if she could move to a different part of Fiji, such as [Town 1] where her family live, and avoid harm from her husband. She said that he would know where they were and he would find her and harm her. She said that she fears his family who are violent and would try and take the children away from her. She said that she does not understand his family as her family never fought.
The Tribunal asked the applicant if she wished to add anything to her comments in the letter dated 22 November 2016 about the inconsistencies in evidence about the incidents in Fiji or in regard to the decision of the Tribunal previously constituted. She said that she did not want to add anything. She said that she did not know that she could ‘include the domestic violence issue’ in her claims at the time of the Department decision.
She said that she could not identify the individuals who harmed her in Fiji, but she fears criminals in her region. She would probably need to sew to earn a living and this would bring her into contact with criminals in her area. Although she works in a [particular industry] in Australia, there is only one [such workplace] she knows of, and it is a long way from her house. Asked if she could relocate to a different region and avoid harm, she said that she would still face harm wherever she goes. Asked if she is concerned about sexual assault, she said that she does not have an answer but men did try and touch her breasts and private parts when her daughter was young. She said that many women face this problem in Fiji.
The first named applicant concluded her evidence by telling the Tribunal that she has done everything for her husband, yet he has still been violent towards her and her son. She does not think that he ‘agrees that he made mistakes in inflicting violence on them’. There may be repercussions for her if they return to Fiji, as he might still be angry with her for taking action against him in Australia. She fears that he will assault her and the children. She fears that his family will support him in his actions as the culture supports it and there is inequality between men and women. She reiterated that in Australia he is scared of the police and the law, but in Fiji he will not be. She said she wants things to be fair. But she does not know if he agrees. Her son also fears that if they return to Fiji, he will be assaulted. He has told her personally but does not want to say anything in front of anyone else.
She said she feels safe at the moment as her husband is afraid of the police, but she believes this could change if he returned to Fiji.
Evidence of the first named applicant’s husband
The first named applicant’s husband confirmed that he was born in [Town 2] but lived in [City 1] prior to coming to Australia in October 2014. He said that he came to Australia as a visitor but after two to three months he saw ‘lots of differences in safety and security’. He said that his wife and children came later and told him of ‘a few incidents of crime’, so they decided to ask for protection.
He said that his mother and two married sisters are living in [City 1].
He said that before they travelled to Australia, they were renting a house in an area where there were a number of criminal incidents. The Tribunal asked him if he returned to Fiji, if they could move to a different area where there was less crime. He said that they lost their land when he was little as his father died. He came from a broken family and his mother was illiterate. They lived in one house then another and were poor. He had no shoes until he was [age range]. He said that they lived in a squatter area where there was land taken from the Indo-Fijians. He was asked again why, if they returned to Fiji, they could not move to a different part of Fiji and avoid the crime in the area they lived in in [City 1]. He said that they have no land. He was asked if they could rent. He said people do rent, but there is discrimination against Indian people. He said Suva is also dangerous.
It was put to the first named applicant’s husband that the recent DFAT Report, and other sources about Fiji, indicate a low level of discrimination and violence against Indo-Fijians. The applicant responded that in Fiji at ground level it is different from what is said in the media and in reports. He said that this is reflected in many ways, for example in certain areas there is a lot of crime and people require burglar bars. He said that he knew of somebody who was told to hand over his keys for the car or the criminals would burn his house.
The first named applicant’s husband was asked what he fears if he returns to Fiji. He said that he fears discrimination, and lack of security. He said that Fiji is not a place for Indians to live anymore. He was asked why he fears he would be targeted. He said that violence is not at a low level for Indian people, they are being targeted. He said he had been beaten in the past and could have lost his life.
He was asked if he could seek police protection. He said that the police cannot protect them. He said that if you read media reports, it appears as if the police are effective, but cases relating to the Indo-Fijians are given low priority and not dealt with. He said that Indo-Fijians are treated in police stations as ‘low grade’.
He was asked if he has fears for his children. He said that they have no future as Indo- Fijians are ‘neglected’. He was asked about attitudes to women and girls in Fiji. He said that mostly bad things happen to Indo-Fijian women or girls.
The Tribunal queried the first named applicant’s husband about his domestic violence record. He said that the domestic violence was based on ‘misunderstandings’ and it was ‘not that big’ and he is ‘not blaming’ anyone, but small things were ‘made bigger than they were’. He felt that everything was ‘stretched’ and there was an AVO so he no longer lived with his family during the period of the AVO. He said that he was asked by the court to stay away and this went on for about 10 to 12 months. He said that he can’t remember the exact period. He returned about 17 months ago to the house. He said that he and his wife are in a genuine and continuing relationship. He said that both are working and contributing to the finances – he is [an occupation]. They both share parental duties. He said that he does more than three-quarters of the parental duties and she helps with a quarter.
The first named applicant’s husband said that he did not like the way he was treated in Fiji as an Indo-Fijian. In Australia he had a chance to apply for jobs. He has worked hard for a company with 760 workers but only 160 permanent workers and he was offered a permanent job because of the way he has performed [his work]. He said that the ‘big boss’ called him into his office and said he had done eight or nine miracles on [the job]. He said that in Australia he has been given opportunities and wants a peaceful life. He said that in Fiji he was discriminated against in employment and has a scar on one side to the other of his head from an attack. He had stitches in his head, and still gets pain there. He said that in Fiji, there is a ‘problem from crime’ and people cannot speak up against the government as it is not safe. He said that he just wants a happy life. He has not applied for social security and has worked non-stop since he has been in Australia. He now has a good job in a new company.
DOCUMENTS RECEIVED BY THE TRIBUNAL
In response to a summons, the NSW Police provided a number of documents. The first named applicant provided a copy of an AVO. These documents are discussed in the findings.
FINDINGS AND REASONS OF THIS TRIBUNAL
Key issues for determination
In determining whether the applicants meet the refugee or complementary protection criteria, the key issues are:
·     Have the first and second named applicants been subject to domestic and family violence from the first named applicant’s husband in Australia?
·     Whether the first named applicant faces a real chance of serious harm from her husband in the form of domestic and family violence if she were to return to Fiji, for reasons of her membership of a particular social group of women.
·     Whether effective protection or relocation would be available options.
·     Whether the second and third named applicants face a real chance of serious harm from the first named applicant’s husband in the form of domestic and family violence, for one of the reasons set out in the legislation.
·     Whether there is a real chance of serious harm or a real risk of significant harm if the applicants were to return to Fiji for reasons of their ethnicity.
·     Whether the second and third named applicants face a real risk of significant harm and therefore meet the complementary protection criteria.
·     Whether the third named applicant is owed protection as a member of the same family unit as the first named applicant.
These issues and other threshold issues are discussed below.
Nationality
For the purposes of the refugee criterion, s 5H(1) of the Act refers to a person being outside the country ‘of nationality’. For the purposes of the complementary protection criterion, s 36(2)(aa) of the Act refers to a person being removed to a ‘receiving country’, which is defined as a country of which the applicant is a national.
The applicants all have Fijian passports. The Tribunal is satisfied on the basis of their passports and testimony that they are nationals of Fiji and that Fiji is the receiving country for the purposes of the legislation.
Have the first and second named applicants been subject to domestic/family violence in Australia inflicted by the first named applicant’s husband?
The Tribunal is satisfied that the first and second named applicants have been subject to domestic and family violence as that term is described in the National Domestic and Family Violence Benchbook[10] (the Benchbook), from the first named applicant’s husband between 2015 and the current time in Australia. The background to claims for protection on the basis of domestic and family violence and the Tribunal’s reasons for its findings are set out below.
[10] National Domestic and Family Violence Benchbook, last updated June 2021, The first named applicant made new claims to this Tribunal that she and her son had been subject to domestic and family violence from her husband in Australia. These claims had not been raised in her application to the Department. Section 423A of the Act, which applies with respect to protection visa applications made on or after 14 April 2015, requires the Tribunal to draw an adverse inference as to the credibility of an applicant’s claim or evidence, where an applicant raises a claim or presents evidence that was not put forward before the primary decision was made. In such cases, if the Tribunal is satisfied that the applicant does not have a reasonable explanation as to why the claim was not raised or evidence not presented before the primary decision-maker, s 423A of the Act requires the Tribunal to draw an inference unfavourable to the credibility of the claim or evidence. Section 423A of the Act does not apply in this matter as the application was made prior to April 2015 however nonetheless the Tribunal considered why these claims were not raised to the Department and if adverse inferences should be drawn. The Tribunal accepts as reasonable the first named applicant’s explanation that she did not know that domestic and family violence was relevant to claims for protection. Additionally, it was clear that she finds it difficult talking about the violence such that this may have inhibited her discussing the matter at that time. No adverse findings are made on the basis that the claims about domestic and family violence were not made at the earliest opportunity.
101. The Tribunal is satisfied that the first and second named applicants have been subject to domestic and family violence, on the basis of testimony to this Tribunal, as corroborated by police reports and copies of orders made by the NSW courts. In response to a summons, the NSW Police provided a number of documents from the NSW Police Force Computerised Operational Policing System (COPS). The documents recorded domestic and family violence events involving the first and second named applicants.
102. The first named applicant referred in her testimony to an incident in March 2015 in which her husband forced his fingers in her mouth and scratched it, causing it to bleed, while shouting at her. She said that the police were called and investigated. The police documents refer to an incident of family violence [in] March 2015 with assault [in] March 2015 and to an incident in which a child/young person was at risk. An AVO was made [in] March 2015 and there were court appearances relating to this in April and May 2015. The first named applicant’s husband was charged with assault occasioning actual bodily harm and common assault [in] March 2015. According to the first named applicant, her husband was subject to a Community Service Order.
103. The first named applicant also referred to another incident in which her husband and his nephew attempted to take the children’s passports and demanded that she hand over her telephone. Following this incident, she said that her husband forced their son to make a false report about her to the police. The second named applicant later told police that he had been forced by his cousin to make this false report. According to the first named applicant, following this incident, the family moved out of the home and lived separately from her husband, but some time later, for financial reasons, moved back into a unit with him.
104. According to a police report [in] January 2019, the second named applicant claimed that his father kicked and punched him in the face and dragged him on the ground causing carpet burns to his right elbow, following an argument about watching television. His mother stated that she was in the room and did not see the assaults. The mother and son told police, according to reports, that they held no fears about his behaviour and wanted police to speak to him.
105. Also contained in the reports is a domestic violence episode [in] June 2019 involving the second named applicant and his father, which is referred to in the police reports. According to the police report dated [date] June 2019, on [date] June 2019 the first named applicant’s husband yelled at the second named applicant for not completing his homework and pushed his telephone out of his hand. The victim did not supply a statement to police as he did not believe that the actions of his father were with intent to cause any fear or harm towards him. He also told police that his father hit his mother, however she denied this and said that she was not involved.
106. There was a further incident [in] December 2019 referred to in the reports. An AVO was issued [in] December 2019. The first named applicant said that her husband punched her in the mouth, and she had a bloody lip and her tooth was loose. She said that her daughter was in the living room and heard it all. The police were called. This is confirmed in police reports. After this, her husband no longer lived with the other applicants. The first named applicant has spoken in her testimony of how upset and ‘sick’ she became after this incident, having to give up work.
107. In 2020 the police took out an Apprehended Domestic Violence Order (ADVO) against the first named applicant’s husband in regard to his son. An application for the ADVO stated that the person in need of protection was the second named applicant. An Interim ADVO dated [January] 2020 stated that the first named applicant’s husband was required to attend court in April 2020 and made a number of orders including that he could not approach or contact the first or second named applicants in any way or go within 100 metres of the place where they live. According to police documents, in August 2020 the first named applicant’s husband had punched his son a number of times after attending the residential house to drop off groceries. He also grabbed his son’s jacket causing it to become tight around his neck. The punches caused redness and swelling. According to the police reports, the son attempted to call police but his mother prevented him. She tried to intervene and was pushed to the ground by his father. His father also spat on his son twice. Police attended the residence but the first named applicant was reluctant to provide police with information.
108. The first named applicant also referred to the fact that her husband was charged in August 2020 with breaching his ADVO after attending the house to leave groceries and arguing with their son.
109. A Final ADVO dated [November] 2020 and applying until [November] 2022 required that the first named applicant’s husband could not do any of the following in relation to the first and second named applicants:
·Assault or threaten them;
·Stalk, harass or intimidate them;
·Intentionally or recklessly destroy or damage any property belonging to them;
·Approach or contact them in any way unless through a lawyer, as court-approved or where agreed in writing between parents in regard to contacting children;
·Go within 100 metres of the place of residence or work of the first and second named applicants.
110. The first named applicant provided a copy of an ‘Order Varying Apprehended Domestic Violence Order’ issued by the [court] to her husband [in] January 2021 and varying the ADVO made [in] November 2020. The order is valid until [November] 2022. The order stated that the defendant was in a de facto relationship with the protected person and the defendant must not do any of the following in relation to the first and second named applicants or he could be arrested and charged:
·Assault or threaten them;
·Stalk, harass or intimidate them;
·Intentionally or recklessly destroy or damage any property belonging to them.
111. A letter dated 21 February 2022 from [Ms D], a Domestic and Family Violence Specialist (Multicultural) Worker at [a] Domestic Violence Advocacy Service confirmed that the first named applicant first had contact with the Service [in] January 2020 ‘due to incidents of violence from her partner’. She had contact with the Service at [Suburb 2] Court for a domestic violence matter and subsequently in relation to a breach of ADVO matter [in] August 2020.
112. [Ms D] said that during conversations, the first named applicant disclosed to the Service:
·That she is afraid of (her husband) due to incidents of domestic violence towards her and her son;
·That there was a history of domestic violence commencing from 2019 including verbal and physical abuse and financially controlling behaviour; and
·That she has close-knit ties to the Australian community and is currently working part-time as an assistant nurse in the community.
[Ms D] said that police had applied for an ADVO for her and a final order was made [in] November 2020 with conditions for two years.
113. The first named applicant has also referred to controlling behaviour by her husband such as wanting the family to ‘follow his way of living’ including what they do around the house, and going to bed, and what they eat. While not at the extreme level of the spectrum of controlling behaviour, the Tribunal accepts that this falls within examples of coercive control, as described in the Benchbook.[11]
[11] National Domestic and Family Violence Benchbook, last updated June 2021, The Tribunal is satisfied on the testimony of the first named applicant as corroborated by the police and court documents and the evidence of the Domestic and Family Violence Specialist, that the first and second named applicants have been subject to domestic and family violence in Australia inflicted by the first named applicant’s husband.
Does the first named applicant face a real chance of serious harm from her husband in the form of domestic violence if she were to return to Fiji for reasons of her membership of a particular social group of women?
General principles – well-founded fear of persecution
115. A person is a refugee if, in the case of a person who has a nationality, he or she is outside the country of nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail themself of the protection of that country.[12]
[12] Section 5H(1) of the Act.
116. The next issue for consideration by the Tribunal is whether the first named applicant has a well-founded fear of persecution for one of the reasons set out in the legislation.
117. The concept of ‘well-founded fear of persecution’ is further defined in s 5J of the Act. It provides that a person has a well-founded fear of persecution if:
·the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·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 above; and
·the real chance of persecution relates to all areas of a receiving country.
Is the first named applicant a member of the particular social group of ‘women in Fiji’?
118. The Tribunal is satisfied that ‘women in Fiji’ comprise a ‘particular social group’, as that phrase is defined in s 5L of the Act, for the following reasons:
·there is a characteristic shared by each member of the group including the first named applicant, which is female gender (s 5L(a) and (b));
·the characteristic is innate (s 5L(c)(i)) (noting that the Explanatory Memorandum to the Bill which introduced s 5L said that gender is innate[13]);
[13] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), p.178 at [1220].
·or the characteristic distinguishes the group from society (s 5L(c)(iii));[14] and
[14] This section codifies the decision in Applicant S v MIMA (2004) 217 CLR 387 that a particular social group be distinguished from the society at large.
·the characteristic is not a fear of persecution (s 5L(d)).
119. Australian courts have consistently found that ‘particular social group’ should be interpreted broadly[15] and the courts on the whole have accepted that women, or a subgroup of women, can comprise a social group.[16] In MIMA v Khawar (2002) 210 CLR 1 the High Court accepted that women or a subgroup of women can comprise a particular social group. Gleeson CJ found that it was open for the Tribunal to determine that women in Pakistan were a social group and said that the size of the group did not stand in the way. He said that ‘women in any society are a distinct and recognisable group and their distinctive attributes and characteristics exist independently of the manner in which they are treated.’
[15] Morato (1992) 39 FCR 401 (Lockhart J); Minister for Immigration and Ethnic Affairs v Respondent A (1995) 57 FCR 309; Chen Shi Hai v MIMA (2000) 201 CLR 293.
[16] MIMA v Khawar (2002) 210 CLR 1; also accepted by the UNHCR, see Conclusion No 39 (XXXVI) Refugee Women and International Protection, 1985 and in the UK (case of Islam; ex parte Shah 1026) and Canada (case of Ward 739).
Does the first named applicant fear being persecuted for reasons of the membership of a particular social group of ‘women in Fiji’?
120. Section 5J(1)(a) of the Act requires that the person ‘fears being persecuted’ for one of the stated reasons. This incorporates the need for subjective fear, consistent with the Australian courts’ interpretation of ‘well-founded’ fear in Article 1A(2) of the Refugees Convention.
121. The Tribunal is satisfied on the basis of the first named applicant’s testimony as well as police and court reports cited later in this decision, that the first named applicant fears being persecuted for reasons of membership of a particular social group of women, as she fears harm from her husband because she is a woman, and is afraid that he will inflict harm on her in Fiji because he is aware that the state will not protect her. Although she has permitted him to move back into the house in Australia, her evidence was persuasive that after the 2020 incident she was very upset and sick and had bruises around her mouth and had to give up work, however she agreed to take him back because her daughter was sad and wanted him to return, and she felt that he would not harm her as he fears the police. She also said that she has a gentle heart and felt that he had learnt his lesson. However she reiterated that if they returned to Fiji, he would be empowered to inflict violence on her, as in Fiji there is no equality or protection for women, and he feels that he has not done anything wrong. She also fears his family would encourage hostility towards her, as they are angry with her for contacting the police.
Is the harm feared for the essential and significant reason of membership of the particular social group of ‘women in Fiji’?
122. This question is considered alongside the question of whether there is a real chance of serious harm for one of the reasons set out in the legislation.
Is there a real chance of serious harm for the first named applicant for one of the reasons set out in the legislation?
123. For a person’s fear of persecution to be well-founded, there must be a real chance that, if the person returned to the receiving country, the person would be persecuted. Consistent with the interpretation of ‘well-founded fear’ under the Refugees Convention, this ‘real chance’ requirement, contained in s 5J(1)(b) of the Act provides an objective element to that concept;[17] not only must a person fear persecution, there must be a prospect of that fear being realised.
[17] See comments in UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status, February 2019, <UNHCR - Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees>
124. The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Refugees Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. It is clear from the Explanatory Memorandum to the Bill introducing s 5J, that Parliament intended that this same threshold be used to assess claims under s 5J of the Act.[18]
[18] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), p.171.
125. The fact that an individual’s claims of persecution may be plausible or credible is not enough to establish a real chance of persecution. In Chan v MIEA, Dawson J stated:
“Well-founded” must mean something more than plausible, for an applicant may have a plausible belief which may be demonstrated, upon facts unknown to him or her, to have no foundation.[19]
[19] Chan v MIEA (1989) 169 CLR 379 at 397.
126. The Tribunal is satisfied that there is a real chance of serious harm in the form of family or domestic violence from the first named applicant’s husband, when considering the totality of the evidence, including past conduct and country sources about the status of women and violence against women in Fiji.
127. The Tribunal has taken into account the High Court’s guidance in MIEA v Guo (1997) 191 CLR 559, ‘past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence.’ The first named applicant has been subject to a number of instances of domestic violence since 2015 at the hands of her husband. Courts in criminal proceedings have often admitted tendency evidence regarding the probative value as outweighing the prejudicial concerns, given that, for example, it is evidence of a ‘violent and controlling disposition to a domestic partner’.[20] While there are exceptions, domestic and family violence is usually characterised by a pattern of behaviour.[21] The Tribunal notes that the first named applicant’s husband does not appear to take responsibility for the violence. When the Tribunal asked him about it at the Tribunal hearing he referred to ‘little things being made big things’, of incidents being ‘stretched’ and how his wife was emotional. This lack of responsibility may well translate into further abuse and is a common feature of abusers.[22]
[20] Queen v Pamkal [2019] NTSC 80.
[21] National Domestic and Family Violence Benchbook, last updated June 2021, See Duluth, ‘Power and Control Wheel’ referred to in National Domestic and Family Violence Benchbook, last updated June 2021, The Tribunal has also taken into consideration the culture and attitudes towards women in Fiji. The first named applicant has told the Tribunal that even though she has her husband to move back into the home in Australia and he has not inflicted domestic violence on her recently, she fears that he will harm her in Fiji. She said that she is comfortable that he will not harm her in Australia, because after being arrested previously, he fears that the police will come and take action against him in Australia. He does not have this fear of the police in Fiji. She said that she believes that the culture in Fiji will encourage him to act with impunity. Although women have full rights of inheritance and property ownership, authorities often exclude them from decisions or do not recognise their rights.[23] Although the law prohibits gender-based discrimination, employers generally pay women less.[24] Amnesty International has reported on women in parliament being subjected to misogynistic and sexist remarks by parliamentary colleagues and online bullying and harassment.[25] DFAT has said that women in Fiji can be discouraged from seeking leadership positions because of conservative attitudes, and that women are often excluded from making decisions around the home and in communities.[26] DFAT stated in 2022 as follows in regard to women’s participation:[27]
[23] United States Department of State, ‘2021 Country Report on Human Rights Practises – Fiji’.
[24] United States Department of State, ‘2021 Country Report on Human Rights Practises – Fiji’.
[25] Amnesty International, Amnesty International Report 2021/22; The State of the World’s Human Rights, Fiji 2021, 29 March 2022.
[26] DFAT, ‘Helping Fijian girls to grow, inspire, relate, lead and succeed, < Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Fiji’, 20 May 2022.
Fiji is a traditionally male-dominated society and traditional gender roles are well-entrenched. According to World Bank figures, the participation rate for women is the lowest in the Pacific region at 35 per cent of the total labour force (by contrast, Australia’s rate is about 46 per cent of the total labour force).
129. The independent country sources support the first named applicant’s submission that the rates of domestic violence are high in Fiji (some of the highest in the world) and that culture impacts a lack of effective protection. The United Nations Development Program has referred to violence against women as at ‘near epidemic’ levels.[28] The United States Department of State reports that NGOs have reported concerning increase in gender-based violence since the pandemic began in 2020, with many severe cases.[29]
[28] United Nations Development Program, ‘Fiji Security Sector Governance’, January 2019.
[29] United States Department of State, ‘2021 Country Report on Human Rights Practises – Fiji’.
130. DFAT also comments on the very high rates of domestic violence:[30]
[30] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Fiji’, 20 May 2022.
A study by the Fiji Women’s Crisis Centre (FWCC) from 2013 (the most recent study by the FWCC) found 64 per cent of women who had ever been in a relationship had experienced domestic violence. In October 2020 the then Minister for Women, Children and Poverty Alleviation, Mereseini Vuniwaqa, said that 72 per cent of women in Fiji might experience violence in their lifetime. Reporting levels are regarded as low.[31] Vuniwaqa said that violence in Fiji affected women from all socio-economic backgrounds. She also noted that in 2020 (to October) police had recorded 1,545 cases of violence against women. Elsewhere, Vuniwaqa has acknowledged that Fiji’s rate of violence against women and girls is among the highest in the world. The media reported 10 deaths from domestic violence in 2020.
[31] United Nations Development Program, ‘Fiji Security Sector Governance’, January 2019.
131. Another study in 2017 found that 60 per cent of women surveyed found difficulties in reporting domestic violence as police told them to resolve the issue within the family or village or did not take them seriously. Forty per cent said police tried to reconcile them with partners, refused to take action and delayed serving orders.[32] In regard to police protection, the DFAT Report states:
171. The Tribunal has considered the Tribunal’s Guidelines on the Assessment of Credibility,[88] which reinforce that the Tribunal should be mindful of the various factors which may impact on evidence and approach the assessment with an open mind. After considering the evidence carefully, the Tribunal is satisfied that the applicants experienced a number of incidents of crime and harassment in Fiji, including the first named applicant’s husband being grabbed around the neck by his landlord’s nephew and being attacked on the street while buying cigarettes, suffering a cut to the head. The Tribunal also accepts that the first named applicant was sexually harassed and threatened by some indigenous Fijians in December 2014 while at home. The Tribunal accepts as reasonable their explanation that not all details were included in their Department application as they were unaware that detailed narratives should be provided. The Tribunal also accepts that the first named applicant may have conflated two instances of harm suffered by her husband. Their evidence is supported by police reports and there has been some overall consistency. They lived in a poorer mixed-race area of [City 1], where instances of crime were probably more likely than in wealthier areas, and it is possible that they were perceived as wealthier than some of the local indigenous Fijians. While some aspects of their claims may have been exaggerated, for example the suggestion that the first named applicant moved to a friend’s house, the Tribunal has not concluded that this undermines their overall credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan,[89] Foster J stated that ‘care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.’ The Tribunal accepts that on occasion applicants may exaggerate aspects of the evidence but this does not indicate that the entire evidence is untrustworthy. Professor Hathaway refers to decisions of the Immigration Appeal Board in Canada, and states:
[88] Guidelines on the Assessment of Credibility, AAT, Migration and Refugee Division, available on the AAT Website, < 40 ALD 445.
Even where the statement is material, and is not believed, a person may, nonetheless, be a refugee. “Lies do not prove the converse.” Where a claimant is lying, and the lie is material to his case, the [determination authority] must, nonetheless, look at all of the evidence and arrive at a conclusion on the entire case. Indeed, an earlier lie which is openly admitted may, in some circumstances, be a factor to consider in support of credibility.”[90]
[90] J Hathaway, The Law of Refugee Status, Butterworths, Canada, 1991, p.86.
172. A similar conclusion was reached by Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at [191]:
the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. While parts of the evidence may be embellished, other aspects of the evidence may be credible.
173. Having accepted that the applicants suffered some discrimination, harassment and criminal incidents in Fiji, which may have had a racial element, the Tribunal turns now to the question of whether there is a real chance of serious harm if the second and third named applicants return to Fiji in the reasonably foreseeable future for reasons of Indo-Fijian ethnicity. The Tribunal is not satisfied that there is a real chance of serious harm, for reasons set out below.
174. Firstly, sources including DFAT indicate that there is a low level of discrimination for Indo-Fijians[91] although there can be tensions between ethnic Fijians and Indo-Fijians.[92] One-third of the population is Indo-Fijian,[93] so they are a large minority. Sources indicate they are dominant in the business and farming sectors.[94] According to the 2022 DFAT Report:
[91] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Fiji’, 20 May 2022.
[92] United States Department of State, ‘2021 Country Report on Human Rights Practises – Fiji’.
[93] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Fiji’, 20 May 2022.
[94] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Fiji’, 20 May 2022.
the two main ethnic groups are the Melanesian iTaukei and Indo-Fijians, descendants of colonial sugar cane workers. Whereas Indo-Fijians were once a slight majority, their population in Fiji has since reduced with large-scale emigration. DFAT understands that about a third of the population is Indo-Fijian and the majority of the rest of Fijians are iTaukei. Statistics on ethnicity were not released by the Fiji Bureau of Statistics for the 2017 census due to problems when collecting the data. Parallel ethnic communities have a long history in Fiji. The colonial government encouraged the separate development of ethnic communities that lived, worshipped and were educated separately. Today, some separation between the communities continues but it is not officially mandated. For example, Indo-Fijians tend to make up the majority of the business and farming sectors, but iTaukei Fijians tend to make up the majority of the security forces and the public service.[95]
[95] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Fiji’, 20 May 2022.
175. Discrimination is an issue in land ownership, with ethnic Fijians holding approximately 87 per cent of land.[96] According to a number of sources including Minority Rights International this has led to anxiety, hardship and political marginalisation.[97] However, Indo-Fijians are eligible to access employment, education, healthcare and other government services on the same basis as other Fijians. According to DFAT:
[96] United States Department of State, ‘2021 Country Report on Human Rights Practises – Fiji’.
[97] Minority Rights International, ‘Fiji Islands’, September 2017.
Race is an important factor in Fijian society, but ongoing government integration efforts are having some effect. Some low-level social discrimination continues, with the use of racist stereotypes common among both groups. The Government has taken significant steps to de-segregate the community in day-to-day life. Schools were required to stop calling themselves ‘Indian’ or ‘Fijian’, and the 2013 Constitution requires Hindi to be taught in primary schools. Diwali and the Prophet Mohammed’s Birthday are both national public holidays alongside Christian holidays like Christmas and Easter. The Public Order Act was amended in 2012 to prohibit incitement of racial violence, and the 2013 Constitution prohibits discrimination based on race or ethnicity and applies to all ‘Fijians’ regardless of race.[98]
[98] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Fiji’, 20 May 2022.
176. The DFAT Report concludes that:
DFAT assesses that Indo-Fijians face a low level of societal discrimination. This affects most Fijians as some people of each major ethnic group perpetuate racist stereotypes against the other. Because of traditional land ownership, most Indo-Fijians are unable to buy land outright, but rather lease it. Otherwise, DFAT is not aware of evidence of official discrimination against Indo-Fijians based on race/nationality.[99]
[99] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Fiji’, 20 May 2022.
177. Secondly, the current government has since 2009 undertaken a program of reform to reduce the role of ethnicity in Fiji’s politics.[100] Fiji is a constitutional republic. In 2018 the country held general elections, which international observers deemed free, transparent and credible. Josaia Voreqe (Frank) Bainimarama’s FijiFirst party won 27 of 51 seats in parliament, and he began a second four-year term as prime minister.[101] Since 2009, the government has undertaken a program of reform aimed at reducing the role of ethnicity in Fiji’s politics.[102] According to DFAT, ‘through mechanisms such as the 2013 Constitution, the Government has reformed or removed racial aspects of the political system, including by abolishing separate ethnic-based voter rolls. Ministers in the current FijiFirst Government are from both major ethnic communities. The largest opposition party in Parliament is currently the Social Democratic Liberal Party (SODELPA) which polled well in the 2018 election and largely draws its support from iTaukei. FijiFirst is popular among Indo-Fijians, who support its multi-ethnic platform’.[103] The government has removed many of the educational and political representation privileges previously given to indigenous Fijians.[104] The government has publicly stated its objections to policies that provide ‘paramountcy’ to the interests of ethnic Fijians.[105] Even in 2017, Minority Rights International reported better inter-ethnic relations, with policy changes such as the designation of a common name for all Fiji citizens and efforts to find land for farming and other activities and to improve law and order.[106]
[100] Minority Rights International, ‘Fiji Islands’, September 2017; United States Department of State, ‘2021 Country Report on Human Rights Practises – Fiji’.
[101] United States Department of State, ‘2021 Country Report on Human Rights Practises – Fiji’.
[102] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Fiji’, 20 May 2022.
[103] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Fiji’, 20 May 2022.
[104] Freedom House, ‘Freedom in the World – Fiji’, 2021.
[105] United States Department of State, ‘2021 Country Report on Human Rights Practises – Fiji’.
[106] Minority Rights International, ‘Fiji Islands’, September 2017.
178. Thirdly, sources do not suggest higher rates of crime for Indo-Fijians.[107] Although the applicants suffered crime in the past, serious crime rates are generally regarded as low,[108] although petty theft is common. Furthermore it is widely accepted that crime generally is random in nature, rather than harm targeted at a particular group. Studies on crime[109] indicate that there are multiple motivations for criminal conduct and that crime is often opportunistic, rather than caused by a desire to inflict harm on a particular group.
[107] United States Department of State, ‘2021 Country Report on Human Rights Practises – Fiji’; Freedom House, ‘Freedom in the World – Fiji’, 2021; Minority Rights International, ‘Fiji Islands’, September 2017.
[108] Government of UK Foreign Travel Advice, <, Organised Crime Index>; < US Department of Justice, Agnew, Why Do Criminals Offend?: A General Theory of Crime and Delinquency, 2005, Fourthly, the Tribunal is not satisfied that there is discriminatory or systematic withholding of state protection[110] for reasons of Indo-Fijian ethnicity. The Constitution of Fiji is based on rules of law and the United States Department of State reports that Fiji has an independent judiciary and police force and there is no suggestion in the report that state protection is not available to Indo-Fijians.[111] The Tribunal acknowledges under-resourcing of protection mechanisms[112] but also that efforts have been made to improve this.[113] Minority Rights International suggest that it is indigenous Fijians who have been disproportionately subject to abuses by police.[114] They also report on positive improvements in law and order as contributing to better inter-ethnic relations.[115] Sources do not indicate that the government of Fiji is complicit in withholding protection for Indo-Fijians as it does not encourage, condone or tolerate the harm amounting to persecution.[116] The Tribunal does not accept therefore that there is any discriminatory withholding of state protection. Although there is some under-resourcing, significant efforts have been made.
[110] MIMA v Khawar (2002) 210 CLR 1.
[111] United States Department of State, ‘2021 Country Report on Human Rights Practises – Fiji’.
[112] United Nations Development Program, ‘Fiji Security Sector Governance’, January 2019; ABC, 20 November 2017; United States Department of State, ‘2021 Country Report on Human Rights Practises – Fiji’; United Nations Development Program, ‘Fiji Security Sector Governance’, January 2019.
[113] United Nations Development Program, ‘Fiji Security Sector Governance’, January 2019; ABC, 20 November 2017.
[114] Minority Rights International, ‘Fiji Islands’, September 2017.
[115] Minority Rights International, ‘Fiji Islands’, September 2017.
[116] MIMA v Respondents S152/2003 (2004) 222 CLR 1, per Gleeson CJ, Hayne and Heydon JJ, at [23].
180. These sources were put to the applicants for comment. The first named applicant said that Indo-Fijians are targeted for crime, finances and employment. She said many of her family members cannot find work. The first named applicant’s husband said on the ground, things are different and people cannot speak up. He said that Indo-Fijians face a number of difficulties. He said that although Indo-Fijians have voted for Bainimarama to ‘minimise the problem, there are still problems’. He says that Bainimarama will say one thing in a speech but act another way. He said that Indo-Fijians are not given respect. He told the Tribunal about a job interview when he was told to stand up as he was the only Indian there, and he was mocked by the Fijians. He said that he felt ashamed and this happens over and over. He also said that the police do not protect them as they use personal networks to control the police. Once he was told not to report an offence by someone who ‘shouldered’ him on the street.
181. The Tribunal accepts that Indo-Fijians may face some societal and official discrimination. However the DFAT Report, and other reports indicate that ethnic Indians face a low level of societal and official discrimination, which includes inability to own land and may include some societal discrimination or discrimination in employment. As put to the first named applicant at the Tribunal hearing, as independent evidence does not establish that there is targeted violence against Indo-Fijians, and Indo-Fijians face a low level of official discrimination, the Tribunal is not satisfied that the applicants would face a real chance of serious harm were they to return to Fiji in the reasonably foreseeable future. Indicative examples of what comprises ‘serious harm’ are found in s 5J(5) of the Act and include a threat to the person’s life or liberty; significant physical harassment of the person; significant physical ill‑treatment of the person; significant economic hardship that threatens the person’s capacity to subsist; denial of access to basic services, where the denial threatens the person’s capacity to subsist; and denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist. Although there may be other types of harm, the Tribunal is not satisfied, given reports in the independent sources, that the discriminatory harm the applicants may suffer for reasons of their Indo-Fijian ethnicity, would reach the level of serious harm envisaged by legislators, nor that there would be systematic and discriminatory conduct, as required by s 5J(4) of the Act.
182. The Tribunal is also not satisfied that the applicants would be denied protection, as the country sources suggest that poor protection is attributed to capacity[117] rather than discriminatory withholding of state protection for Indo-Fijians. The sources do not suggest that there is disparity between the quality of protection available to Indo-Fijians and indigenous Fijians.
[117] United Nations Development Program, ‘Fiji Security Sector Governance’, January 2019; United States Department of State, ‘2021 Country Report on Human Rights Practises – Fiji’.
183. The Tribunal is not satisfied therefore that there is a real chance of serious harm if the applicants were to return to Fiji for reasons of Indo-Fijian ethnicity. The Tribunal is satisfied that the chance of harm would be insubstantial, remote and a far-fetched possibility (Chan v MIEA (1989) 169 CLR 379).
Do the second and third named applicants meet the complementary protection criterion?
184. If a person is found not to meet the refugee criterion, he or she may nevertheless meet the criteria for the grant of a protection visa if there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm (the complementary protection criterion).
185. ‘Significant harm’ for these purposes is exhaustively defined in the Act. A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person, or the person will be subjected to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’ and ‘torture’, are further defined in s 5(1) of the Act.
186. The Tribunal is satisfied that there is a real risk of significant harm for the second named applicant from his father if he was to be removed from Australia to Fiji. As discussed earlier in this decision, the second named applicant has been subject to domestic and family violence from his father in Australia in recent years. This is corroborated by police reports and copies of AVOs. The first named applicant has provided testimony of the fear her son has of his father. Although the second named applicant’s father has not offended since 2020, the Tribunal is satisfied that the lack of enforcement of domestic and family violence laws in Fiji, would lead to a real risk of offence in Fiji. The first named applicant has said that it is her husband’s fear of the laws in Australia which has led to modification of his behaviour in recent years in Australia, but if he returned to Fiji he would believe that he could act with impunity. The Tribunal accepts her submissions, on the basis of country sources set out earlier in this decision.
1. ‘Cruel or inhuman treatment or punishment’ is defined in s 5(1) of the Act to mean an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or pain or suffering, whether physical or mental, is 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. The pain or suffering must be intentionally inflicted. Degrading treatment or punishment is exhaustively defined in s 5(1) of the Act to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable. The Tribunal is satisfied that the harm the second named applicant would suffer would be intentionally inflicted and would include cruel or inhuman treatment or punishment or degrading treatment or punishment.
188. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally. As discussed earlier in this decision, the Tribunal is not satisfied that there is an area of Fiji where there would not be a real risk of harm, as Fiji is geographically small. The Tribunal is also not satisfied that protection is available such that there would not be a real risk of significant harm. Country sources about domestic and family violence referred to earlier in this decision suggest that protection would not be available such that there would not be a real risk of significant harm. Finally, the risk is a personal one, not faced by the population generally.
189. The Tribunal is not satisfied that there is a real risk of domestic and family violence in relation to the third named applicant. As discussed earlier, in relation to the refugee criterion, her father has not inflicted domestic or family violence on his daughter in the past, and the Tribunal is not satisfied, particularly given her age, that there is a real risk of significant harm if the applicants were to be removed from Australia to Fiji.
190. The Tribunal has also considered whether the third named applicant faces a real risk of significant harm due to her Indo-Fijian ethnicity. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’: MIAC v SZQRB [2013] FCAFC 33. The Tribunal has not accepted that there is a real chance of serious harm on the basis of Indo-Fijian ethnicity, for reasons set out earlier. For the same reasons, the Tribunal is not satisfied that there is a real risk of significant harm if she were to be removed from Australia to Fiji. Although she may suffer some discrimination in Fiji, the Tribunal is not satisfied that this reaches the level of any of the kinds of ‘significant’ harm set out in the legislation.
Member of the family unit – third named applicant
191. Members of the same family unit of those granted protection may also be granted visas under the legislation. The definition of ‘member of the family unit’ in reg 1.12 of the Regulations includes the term ‘dependent child’.
192. The Tribunal is satisfied that the third named applicant is a member of the same family unit as the first named applicant, as the evidence (birth certificate) establishes that she is a dependent child of the first named applicant as she has not turned 18.
193. The Tribunal is satisfied therefore that the third named applicant satisfies s 5F of the Act and is therefore a member of the family unit of the first named applicant.
CONCLUDING PARAGRAPHS
194. For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(a) of the Act.
195. For the reasons given above, the Tribunal is satisfied that the second named applicant is a person in respect of whom Australia has protection obligations and satisfies the criterion set out in s 36(2)(aa) of the Act.
196. The Tribunal is not satisfied that the third named applicant is a person in respect of whom Australia has protection obligations for the purposes of s 36(2)(a) or (aa). However, the Tribunal is satisfied that the third named applicant is a child of the first named applicant and therefore a member of the same family unit as the first named applicant for the purposes of s 36(2)(b)(i). As such, the fate of her application depends on the outcome of the first named applicant’s application. It follows that the third named applicant will be entitled to a protection visa provided the criteria in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
decision
197. The Tribunal remits the matter for reconsideration with the following directions:
(i)that the first named applicant satisfies s 36(2)(a) of the Migration Act;
(ii)that the second named applicant satisfies s 36(2)(aa) of the Migration Act; and
(iii)that the third named applicant satisfies s 36(2)(b)(i) of the Migration Act, on the basis of membership of the same family unit as the first named applicant.
Jane Marquard
Member

Attachment A – 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.
ATTACHMENT B
LIST OF DOCUMENTS
Fiji Police Report dated 21 October 2016. States that the first named applicant’s husband called in to the [City 1] Police Station on 24 February 2014 reporting that he had been threatened and assaulted by a group of Fijian boys wanting money to them. Report noted injuries to his forehead.
Fiji Police Report dated 21 October 2016. States that the first named applicant’s husband reported on 9 August 2013 to the [City 1] Police Station that he was threatened and assaulted by Fijian boys after refusing to give them money for cigarettes.
Various media articles

A/RES/48/104 (23 February 1994) art 4(c) (‘DEVAW’).