1919689 (Refugee)

[2023] AATA 2345

1919689 (Refugee) [2023] AATA 2345 (24 April 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Noel Douglas REEVES

CASE NUMBER:  1919689

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Wayne Pennell

DATE:24 April 2023

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy section 36(2)(a) of the Migration Act.

Statement made on 24 April 2023 at 3:49pm

CATCHWORDS

REFUGEE – protection visa – Fiji – particular social group – women – victims of family violence – court ordered custody of children – breaches of protection orders in Australia – fear of killing – physical assault – former partner’s extended family network in Fiji – state protection – decision under review remitted

LEGISLATION

Domestic and Family Violence Protection Act 2012 (Qld)
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES

Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Minister for Immigration and Ethnic Affairs v Guo Wei Rong & Anor (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Respondent “a”, Respondent “B” and Janet Wood, the Refugee Review Tribunal (1995) 57 FCR 309
Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1
Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273
Re Gustavo Carlos Saavedra Morato v the Minister of Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for a review of a decision made by a delegate of the Minister for Home Affairs (the delegate) to refuse to grant the applicants protection visas under section 65 of the Migration Act 1958 (Cth) (the Act).[1]

   [1]The delegate’s decision was provided to the applicant on 02/07/2019.

2. The primary applicant claims to be a citizen of Fiji, and the second applicant is the primary applicant’s child, and he was born in New Zealand.  They have applied for protection visas.[2] 

   [2]The applicants’ application was received by the Department of Home Affairs on 26/10/2018.

3. The delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed to Fiji, there was a real risk they would suffer significant harm.  Therefore, the delegate refused to grant the visas[3] on the basis that they were not refugees as defined by the Act[4] and they were not persons in respect of whom Australia has protection obligations as outlined in the Act.[5]   

   [3]The delegate’s refusal was made on 02/07/2019.

   [4]Migration Act 1958 (Cth), s 5H.

   [5]Migration Act 1958 (Cth), s 36(2)(a); s 36(2)(aa).

4. The primary applicant filed an application with the Tribunal for a review of the delegate’s decision[6] and accompanying that application was a copy of the decision.  At a subsequent time, the Tribunal wrote to the primary applicant advising her that it had considered all the material before it relating to their application, but it was unable to make a favourable decision on that information alone.[7] 

   [6]The applicants’ application was filed on 19/07/2019.

   [7]The Tribunal advised the applicants on 07/10/2022.

5. The Tribunal invited the primary applicant to give oral evidence and present arguments at a hearing[8] and she subsequently advised the Tribunal that she would appear at the review hearing to give oral evidence and present arguments.

   [8]The Tribunal’s review hearing was listed for 08/12/2022.

6. The scheduled hearing of this matter commenced on 8 December 2022.  It was brought to the Tribunal’s attention that the applicants’ representative had only recently been appointed to represent the applicants.  A major issue raised by the primary applicant related to the domestic violence she experienced in Australia.  The perpetrator of that violence was her former partner.  

7. The representative identified the necessity for information to be obtained from the police in respect to the domestic violence, and a Right to Information (‘RTI’) application was lodged with the police.  That material had not been provided by the police at the time the hearing commenced.  To allow that material to be obtained, the hearing was adjourned and rescheduled for 18 April 2023.   

   CRITERIA FOR A PROTECTION VISA

8. The measures for a protection visa are set out in the Act[9] and Schedule 2 to the Migration Regulations1994 (Cth). An applicant for the visa must meet one of the alternative criteria as provided in the Act.[10]  That is, the applicant 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.

   [9]Migration Act 1958 (Cth), s 36.

   [10]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).

9. 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, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[11]

   [11]Migration Act1958 (Cth), s 36(2)(a).

10. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country.[12]  In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country.[13]

    [12]Migration Act1958 (Cth), s 5H(1)(a).

    [13]Migration Act1958 (Cth), s 5H(1)(b).

11. The Act also provides that a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, and there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country.[14] 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 the Act, which are extracted in the attachment to this decision.[15]

    [14]Migration Act 1958 (Cth), s 5J(1).

    [15]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.

12. If a person is found not to meet the refugee criterion in the Act,[16] that person may nevertheless meet the criteria for the grant of the visa if they are a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that they will suffer significant harm (‘the complementary protection criterion’).[17] 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 expressly provided in the Act, which are extracted in the attachment to this decision.[18]

    [16]Migration Act 1958 (Cth), s 36(2)(a).

    [17]Migration Act 1958 (Cth), s 36(2)(aa).

    [18]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).

13. The Act makes provision for, and clearly defines that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[19]

    [19]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).

14. Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm ; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[20]

    [20]Migration Act 1958 (Cth), s 36(2B).

    COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY

15. The primary applicant claims to be a citizen of Fiji and the second applicant claims to be a citizen of New Zealand.  They provided a copy of their passports to authenticate these claims.  The primary applicant’s passport was issued in Fiji and the second applicant’s passport was issued in New Zealand.[21]

    [21]The primary applicant’s passport was issued [in] 2017, and the second applicant’s passport was issued [in] 2014.

16. The Tribunal accepts their identity and based on the evidence they provided, and in the absence of any other evidence to the contrary, the Tribunal finds that Fiji is the primary applicant’s country of nationality and New Zealand is the second applicant’s country of nationality.  The second applicant is the primary applicant’s child and for the purposes of the refugee and complementary protection assessments, the Tribunal finds that Fiji is their receiving country.[22]

    [22]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).

    MANDATORY CONSIDERATIONS

17. In accordance with Ministerial Direction No. 84 made under the Act,[23] the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    [23]Migration Act 1958 (Cth), s 499.

    APPLICANTS’ CLAIMS AND THE EVIDENCE

18. Both applicants have previously visited Australia, with the primary applicant entering and departing on visitor visas on four occasions, and the second applicant three times.  Their first visit was [in] December 2016, with their last taking place [in] February 2018.  For the purpose of completeness, the travel details relating to the applicants are:

Date:	Primary applicant	Second applicant
[December] 2016	Arrived in Australia	Arrived in Australia
[December] 2016	Departed Australia	Departed Australia
[August] 2017	Arrived in Australia
[September] 2017	Departed Australia
[September] 2017	Arrived in Australia	Arrived in Australia
[October] 2017	Departed Australia	Departed Australia
[October] 2017	Arrived in Australia	Arrived in Australia
[January] 2018	Departed Australia	Departed Australia
[February] 2018	Arrived in Australia	Arrived in Australia

1. In mid-2017, the applicants were living in Fiji.  At around that time, the primary applicant met [Mr A] via [social media], and their relationship commenced.  By September 2017, a relationship between the primary applicant and [Mr A] commenced and both applicants had travelled to Australia and were living with him.

2. [Mr A] originates from Fiji but now resides in Australia as an Australian citizen.[24]  His parents have also immigrated to Australia, however he still has extended family living in Fiji such as his aunties and uncles.  

   [24]Acquired Australian citizenship [in] November 2011.

3. During the course of the relationship with [Mr A], the primary applicant gave birth to two other children.  They were [Child A], current aged [age] and [Child B] who is aged [age].  Both of those children have been issued with Australian citizenship certificates.[25]

   [25][Child A’s] issued [in] September 2020 and [Child B’s] issued [in] July 2020.

4. The relationship between the primary applicant and [Mr A] was one which was filled with significant, prolonged and serious domestic violence.  The Tribunal accepts and finds that [Mr A] was the perpetrator of that violence and both applicants, along with the children [Child A] and [Child B], were exposed to and experienced that domestic violence. 

5. The evidence presented the primary applicant to the Tribunal supports that finding and shows that on multiple occasions she was a victim of domestic and family violence; and there were numerous occasions when she contacted the Queensland Police Service (‘QPS’) to report the violence and to seek protection from [Mr A] when he was violent towards her and her children. 

6. The Tribunal considers to be the most serious exhibition of the domestic violence took place on [a day in] June 2018 when the youngest child [Child A] sustained head injuries and required hospitalisation because of [Mr A’s] domestically violent behaviour.  The police became involved, and he was charged with a criminal offence.  He subsequently spent a period of custody in a prison.  The circumstances of that incident are explained in greater detail in these reasons.   

7. Since then, [Mr A] has instituted proceedings in the Federal Circuit and Family Court of Australia in Brisbane seeking parenting orders for the children, including the second applicant.  By consent between the primary applicant and [Mr A],[26] the court made orders for the parenting arrangements for the children, including the second applicant.  Inter alia, those orders provided for the children to live with the primary applicant, however [Mr A] was permitted to spend significant and substantial time with all three children.  The parenting orders further provided that should the primary applicant not be in Australia, then all three of the children, including the second applicant, were to live with [Mr A]. 

   [26][in] October 2020.

8. By the time the parenting orders were made for the children, a domestic and family violence protection order (‘DVO’) had already been issued by [Court 1].[27]  That DVO provided for [Mr A] to be of good behaviour towards the primary applicant and not to commit domestic violence against her.  It also provided for amongst other things, the protection of the second applicant and the child [Child A].  There was a non-contact provisions preventing him from contacting the primary applicant.  The DVO was later varied by the Court and the DVO was to remain in force for a further five years and expires in 2024.[28]

   [27]The Domestic and Family Violence Protection Order was issued [in] June 2018.  A domestic violence order means a protection order; or a temporary protection order.  A temporary protection order is an order made in the period before a court decides whether to make a protection order for the benefit of an aggrieved:  Domestic and Family Violence Protection Act 2012 (Qld), s 23(2). A protection order means an order made against a person (the respondent) for the benefit of another person (the aggrieved) if the court is satisfied that a relevant relationship exists between the aggrieved and the respondent; and the respondent has committed domestic violence against the aggrieved; and the protection order is necessary or desirable to protect the aggrieved from domestic violence: Domestic and Family Violence Protection Act 2012 (Qld), s 37.

   [28]Variation made [in] April 2019 and the DVO expires [in] April 2024.

9. In July 2021, [Mr A] contravened both the DVO and the parenting orders.  On that occasion, the children spent time with him as per the court’s parenting orders, however, instead of returning them, he withheld the children for two and a half weeks.  The primary applicant reported him to the police.  When the police eventually located [Mr A] and the children, they were at the residence belonging to [Mr A’s] sister.  [Mr A] was experiencing a mental health issue at that time, and this placed the children at risk. 

10. When the police found the children, they (the police) telephoned the primary applicant.  During the phone call, she could hear [Mr A’s] sister telling the police that she ([Mr A’s] sister) could look after the children in preference to the children being returned to the care of the primary applicant, however the decision of the police was to return the children into the primary applicant’s care.  [Mr A] was taken into custody for breaching the DVO.  He remained in custody for a period of three months until his release in October 2021. 

11. The primary applicant claims that she has a well-founded fear of returning to Fiji because of the domestic violence [Mr A] perpetrated on her and the children.  He has continually threatened and physically assaulted her despite the DVO being in place.  He has threatened to kill her if she returns to Fiji with their children.  He told her that he would go to Fiji, kill her and then bring the children back to Australia without the Fijian Police being able to stop him.  She fears that he will do as because of his connections in Fiji and the financial resources available to him.  When considering the level and the frequency of the domestic violence [Mr A] perpetrated, the Tribunal accepts that her fear is genuine and well-founded.    

12. The applicant said that since her protection visa application was refused, and despite being separated from [Mr A], he continued to commit domestic violence against her.  Despite the existence of a DVO nominating him as the respondent, he committed multiple breaches of the DVO with the breaches ranging from minor breaches where he has sent her inappropriate messages, through to him threatening to kill her.  There have been other occasions when he has arrived at her house and tried to gain entry to the residence and in doing so, has damaged her property.  The Tribunal finds that the evidence supports these claims. 

    Domestic violence evidence

13. At the time of the scheduled review hearing on 8 December 2022, the applicants’ representative had only recently been appointed.  The Tribunal accepts that the representative had appropriately made endeavours to obtain additional evidence in regard to the domestic violence claims prior to the review hearing taking place.  A Right To Information (‘RTI’) application had been made to the QPS,[29] however at the time of the scheduled review hearing that information had not been processed and provided to the representative.

    [29]Right To Information application lodged with the Queensland Police Service [in] November 2022.

14. Considering the importance of that information, and the possible probative and tangible nature of the domestic violence information held by the QPS which is relevant to the applicants’ application, the Tribunal adjourned the proceedings on a part heard basis to a later time.  At a subsequent time, the review proceedings continued.  At that rescheduled hearing, the applicant provided to the Tribunal evidence obtained from the QPS through her RTI application.  

15. The law within Queensland with respect to domestic violence is provided for in Domestic and Family Violence Protection Act 2012 (Qld) (‘the DFVPA’). Domestic violence is described within the DFVPA to mean and include behaviour by a person, usually the respondent, towards another person, usually the aggrieved, with whom the respondent is in a relevant relationship if that behaviour is physically or sexually abusive; is emotionally or psychologically abusive; or is economically abusive; or is coercive; or in any other way behaviour which controls or dominates the aggrieved and causes the aggrieved to fear for their safety or wellbeing or of someone else.[30] 

    [30]Domestic and Family Violence Protection Act 2012 (Qld), s 8(1).

1. Without limiting those provisions of the DFVPA, domestic violence also includes behaviour which causes personal injury to a person or there is a threat to do so. The provisions further encompass the coercion of a person to engage in sexual activity or attempting to do so; or damaging a person’s property or threatening to do so; or depriving a person of the person’s liberty or threatening to do so; or threatening a person with the death or injury of the person, a child of the person, or someone else; or threatening to commit suicide or self-harm so as to torment, intimidate or frighten the person to whom the behaviour is directed; or cause or threatening to cause the death of, or injury to, an animal, whether or not the animal belongs to the person to whom the behaviour is directed, so as to control, dominate or coerce the person; or unauthorised surveillance of a person; and unlawfully stalking a person.[31]

   [31]Domestic and Family Violence Protection Act 2012 (Qld), s 8(2).

2. In respect to the information and evidence contained within the RTI material provided to the Tribunal, there were multiple reports relating to domestic violence incidents in which the primary applicant was the aggrieved and [Mr A] the respondent.  Those incidents also involved the children being present and experiencing either direct domestic violence, or in other cases associated domestic violence.[32]  The RTI information also contains evidence that [Mr A] assaulted the second applicant in 2017.

   [32]Domestic and Family Violence Protection Act 2012 (Qld), s 9. Associated domestic violence means and includes domestic violence behaviour by a respondent towards a child of the aggrieved; or a child who usually lives with the aggrieved.

3. The RTI information provides some insight into [Mr A’s] mental health[33] where it was explained that in 2018 he self-reported to the hospital for management of inter alia depressed mood and suicide ideation.  His mental health had been deteriorating over the past three years, worsening in the previous three months. 

   [33]Dated [in] July 2018.

4. The Tribunal notes that this was the period during which the child [Child A] was severely injured during a domestic violence incident between [Mr A] and the primary applicant.  The evidence also outlines that [Mr A] has a history of relationship issues and illicit drug addiction.  It is noted that no information or other evidence is contained within the RTI information as to whether [Mr A] has addressed those issues, or has received suitable professional assistance or treatment with respect to his mental health.   

5. When carefully assessing the evidence contained within the RTI, the Tribunal notes that notwithstanding [Mr A’s] mental health issues, disturbingly he was responsible for [a large number of] domestic violence incidents recorded between February 2018 and July 2021.  The Tribunal notes in particular that the most serious of the incidents resulted in a head injury to the child [Child A] from which he required hospitalisation and treatment.  It is reported within the RTI information that on a daily basis, [Mr A] consumes up to 10 to 12 cans of beer and on the day [Child A] was injured, [Mr A] was intoxicated. 

6. [Mr A] had visited the neighbouring residence to where the primary applicant and the three children lived.  Those neighbouring premises were occupied by [Mr A’s] former partner to whom he has [number] other children.  In breach of the provisions of the DVO, he entered the primary applicant’s residence.  Once inside he took a loaf of bread which he was going eat with his other children who lived next door.  He also grabbed a tin of baby formula and then picked up the child [Child A]. 

7. The primary applicant asked him to give her the baby formula and leave [Child A] with her.  He pushed her away and she stumbled backwards.  During that interaction, [Mr A] dropped [Child A] and the child struck his head on the tiled floor.

8. An ambulance was called, and the child was rushed to the hospital.  The injuries were quite serious considering the child’s relatively young age.  As confirmed by an MRI, he had [details of serious injuries].  

9. When carefully considering the evidence presented by the primary applicant, along with her oral testimony and the information obtained through her RTI application, the Tribunal is satisfied to the requisite standard that she and the second applicant were subjected to considerable domestic violence by [Mr A], as were the other two young children.  That satisfaction is supported by the Court’s findings that a DVO was necessary or desirable to protect the applicants from [Mr A’s] domestically violent conduct.

   COUNTRY INFORMATION

   Returning to Fiji, threats from [Mr A’s] family

10. The primary applicant claimed that in the past, [Mr A] has made a number of threats to kill her.  She explained that since those threats were made in 2018, he has continued to contravene the conditions of the DVO and concerningly, he caused head injuries to the child [Child A].  Around that same period, he threatened that if the primary applicant went to Fiji, he would travel to Fiji, harm her and get the children. 

11. The primary applicant further claimed that if she returned to Fiji, she feared that [Mr A’s] extended family in Fiji will undertake measures to have the children removed from her care.  At the time she made this claim, she faced charges in [Court 2 in] Fiji for [charge specified] in 2014. 

12. She was concerned at that time of a distinct possibility that she may have to serve a term of imprisonment because of the charges.  Because of that, she feared that [Mr A’s] extended family would commence court proceedings to gain custody of the children.  However, the charges against her were discontinued in April 2022 when the Fijian [authority] discontinued the prosecution against her and entered a Nolle Prosequi on all charges. 

13. Documents outlining the action taken by [this authority] and other press reports confirming this allows the Tribunal to reach a conclusion that she is no longer facing possible incarceration in Fiji.  Although the Tribunal does not consider there are any valid concerns relating to her earlier expressed fears in respect to [Mr A’s] family in Fiji, the Tribunal is convinced that she holds a genuine and well-founded fear that if she did return to Fiji with the children, then [Mr A] will travel to Fiji in an attempt to recover them.      

    Member of a particular social group

14. The Act provides that a person is a refugee if they are outside the country of their nationality and owing to a well-founded fear of persecution, they are unable or unwilling to avail themself of the protection of that country.[34]  The next issue for consideration by the Tribunal is whether the primary applicant has a well-founded fear of persecution for one of the reasons set out in the legislation.  A person has a well-founded fear of persecution if the fear 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, they 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.[35]

    [34]Migration Act 1958 (Cth), s 5H.

    [35]Migration Act 1958 (Cth), s 5J.

15. In respect to this matter, the Tribunal accepts that the primary applicant identifies as a member of a social group of ‘women in Fiji’ as she shares characteristic of this group in that her gender is the same.[36]  Although the characteristic is not a fear of persecution,[37] those shared characteristics are innate;[38] and the characteristic distinguishes the group from society.[39] The High court found that:

    ….to determine that a particular social group exists, the putative group must be shown to have the following features.  First, there must be some characteristic other than persecution or the fear of persecution that unites the collection of individuals; persecution or fear of it cannot be a defining feature of the group. Second, that characteristic must set the group apart, as a social group, from the rest of the community. Third, there must be recognition within the society that the collection of individuals is a group that is set apart from the rest of the community.[40]

    [36]Migration Act 1958 (Cth), s 5(a) and s 5(b).

    [37]Migration Act 1958 (Cth), s 5L(d).

    [38]Migration Act 1958 (Cth), s 5L(c)(i) noting the Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), page 178 at [1220].

    [39]Migration Act 1958 (Cth), s 5L(c)(iii); Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387 that a particular social group can be distinguished from the society at large.

    [40]Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387, 394.

16. Consistently, the courts have determined that the definition of ‘particular social group’ should be interpreted broadly to encompass many groups who do not otherwise fall within the other categories of race, nationality, religion, or political opinion.[41]  Overall, the courts have accepted that women, or a subgroup of women, can comprise a social group and  women or a subgroup of women can comprise a particular social group; and women in any society are a distinct and recognisable group.[42] 

    [41]Re Gustavo Carlos Saavedra Morato v the Minister of Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401; Minister for Immigration and Ethnic Affairs v Respondent “a”, Respondent “B” and Janet Wood, the Refugee Review Tribunal (1995) 57 FCR 309; Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293.

    [42]Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1.

17. In respect to women in Fiji, the Tribunal is satisfied that a particular social group within Fiji does comprise women.  In reaching that determination, the Tribunal is further satisfied that the characteristic shared by each member of that particular social group is that they share the female gender;[43] the characteristics are innate;[44] the group is distinguished within society because of those characteristics;[45] and the characteristic is not a fear of persecution.[46]

    [43]Migration Act 1958 (Cth), s 5L(a) and s 5L(b).

    [44]Migration Act 1958 (Cth), s 5L(c)(i).

    [45]Migration Act 1958 (Cth), s 5L(c)(iii).

    [46]Migration Act 1958 (Cth), s 5L(d).

18. When careful assessment is applied to the characteristics attributed to the primary applicant, along with the findings of the courts as described, and coupled with the Tribunal’s findings that she was subjected to domestic violence by [Mr A], the Tribunal finds that she falls within the characteristics of a particular social group.      

    Violence against women and girls and domestic violence in Fiji

19. Available to the Tribunal within various sources of country information obtained from credible and reliable resources were references to the systemic domestic violence problems experienced within the Fijian society.  The Monsoon Project reported that:

    Pacific Island countries continue to have some of the highest rates of domestic violence in the Asia-Pacific region.  Domestic abuse is one of the most pressing human security issues facing Pacific Island nations, and in Fiji, it is grossly rampant.  In previous studies, the Fiji Women’s Crisis Centre found that 72 percent of Fijian women had experienced some form of physical, sexual or emotional violence in intimate relationships. These shocking rates have seen little change over recent years, despite action from both internal and external organisations.[47]

    [47]The untold story of domestic violence in Fiji, Vienna Daniels, 21 May 2019, >

    The United States of America 2021 Country Reports on Human Rights Practices on Fiji (‘the US State Department report’) outlined that the law in Fiji recognises that domestic violence and domestic abuse were significant problems.  During the period of January to March 2021, the Fijian Women’s Crisis Centre recorded 486 domestic violence cases. 

20. This was an increase over previous years with a one reported death of a woman in a domestic violence incident.  The Fijian police practice a ‘no drop’ policy, whereby they are required to pursue investigations of domestic violence cases even if a victim later withdraws the accusation.  Notwithstanding that, women’s organizations in Fiji reported that the police did not consistently follow this policy and courts also dismissed some cases of domestic abuse and incest or gave perpetrators light sentences.[48]

    [48]United States of America Bureau of Democracy, Human Rights, and Labor, 2021 Country Reports on Human Rights Practices: Fiji, page 16,

21. The US State Department report further outlined that in May 2021, domestic violence cases were 60 percent higher than in May 2020. Several of the cases were classified as severe forms of domestic violence, such as the attack on a 58-year-old woman whose husband cut off her arm with a machete at the fast-food restaurant where she worked.  Civil society and NGOs maintained that increased depression among women, especially those unable to access mental health-care treatment during lockdowns, combined with life in patriarchal, stressed, and locked-down households, presented a potent combination for harm for women and girls.[49]

    [49]United States of America Bureau of Democracy, Human Rights, and Labor, 2021 Country Reports on Human Rights Practices: Fiji, page 16, >

    The DFAT report provides that a study by the Fijian Women’s Crisis Centre from 2013 found that in Fiji, 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, said that 72 per cent of women in Fiji might experience violence in their lifetime.  It was reported that violence in Fiji affected women from all socio-economic backgrounds.  For the period of January to October 2020, police had recorded 1,545 cases of violence against women with the rate of violence against women and girls being amongst the highest in the world with a reported 10 deaths from domestic violence in 2020.[50]

    [50]The DFAT Country Information Report, Fiji, dated 20 May 2022, page 17, Paragraph 3.51.

22. Within Fiji, there are non-government organisations (NGOs) that provide some services to women and girls who are subject to violence.  For example, the Fijian Women’s Crisis Centre offer a 24 hour telephone crisis counselling service that can coordinate emergency assistance throughout the country.  Lawyers and counsellors might also be available to victims.[51]  Women who experience violence in the outer islands or rural areas may have more difficulty escaping violence as it is unlikely that shelters exist in remote areas and a family member may be relied upon for protection. 

    [51]The DFAT Country Information Report, Fiji, dated 20 May 2022, page 18, Paragraph 3.56.

23. Conversely, it is known that family ties and loyalties and traditional hierarchies can protect perpetrators.  Relocation is not necessarily helpful; this is because Fiji is relatively small and sometimes people can be tracked down through kinship networks.  The DFAT assesses those women who experience domestic violence within Fiji are at a high risk of violence, and a moderate risk of discrimination in the form of lack of access to protection.[52]

    [52]The DFAT Country Information Report, Fiji, dated 20 May 2022, page 18, Paragraph 3.57.

24. The primary applicant explained that despite everything that has occurred to her with respect to the domestic violence by [Mr A], she is very grateful that she was in Australia when that all occurred.  She explained further that Australia is a place where the police look after vulnerable people who experience domestic violence and professional help is also available when needed.  She said that she felt that this was the same with the Australian legal system and the courts which all makes her feel safe. 

25. She said that she raised those points because although she knows that she can obtain a DVO in Fiji against [Mr A] if he was domestically violent to her in Fiji, the type of assistance and level of protection is not available as it is in Australia.  She also identified that if [Mr A] poses a threat to her in Australia, she is at liberty to make an emergency phone call, and police assistance would quickly arrive.  She outlined that in contrast, in Fiji it could take hours or even a day or so for that assistance to arrive. 

26. When balancing the country information just discussed against the level and the propensity of violence perpetrated by [Mr A], the Tribunal accepts that although there are some protective measures in place for victims of domestic violence in Fiji, she would be exposed to a greater unacceptable risk of harm in Fiji should [Mr A] travel to Fiji and seek to recover the children.   

    REFUGEE FINDINGS

    Real chance of serious harm

27. In determining that fear can be well-founded without any certainty, or even probability, or that it will be realised, the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs recognised the principle determined by the United States Supreme Court in Immigration and Naturalization Service v Cardoza-Fonseca that a statutory provision reflecting the relevant phrase in the Refugee Convention did not require the probability of persecution, and:[53]

    That the fear must be 'well-founded' does not alter the obvious focus on the individual's subjective beliefs, nor does it transform the standard into a 'more likely than not' one.  One can certainly have a well-founded fear of an event happening when there is less than a 50 per cent chance of the occurrence taking place.[54]  

    [53]Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, 397.

    [54]Immigration and Naturalization Service v Cardoza-Fonseca (1987) 94 L Ed 2d 421, 431.

28. A fear of persecution may be well-founded for the purposes of the Refugee Convention even though the persecution is unlikely to occur. A real chance of something happening equates to a risk that is more than remote, that is, being a risk that could not be described as being remote, farfetched or fanciful,[55] and the test for ‘real risk’ test imposes the same standard as the real chance test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[56]

    [55]Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, 429.

    [56]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.

29. As the High Court has determined in Minister for Immigration and Ethnic Affairs v Guo Rei Wong, mere speculation cannot establish a well-founded fear.  A fear of persecution is not well founded if it is merely assumed or of it is mere speculation.  The High Court went on to find:

    Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it.  As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.[57]

    [57]MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS V GUO WEI RONG & ANOR (1997) 191 CLR 559, 572 CITING CHAN YEE KIN & ORS V MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS (1989) 169 CLR 379, 397.

1. The Tribunal has carefully considered the primary applicant’s claims in respect to the domestic violence she experienced from [Mr A] and finds that the evidence supports her claims that she was the victim or domestic violence abuse by [Mr A] over a protracted period of time, and the domestic violence was also perpetrated on the children; in particular [Child A] who received fractures to his skull in 2018 and the second applicant who was assaulted in 2017. 

2. The Tribunal finds that the evidence supports the proposition that domestic violence perpetrated by [Mr A] was not only physical, coercive, and controlling, it was also threatening in that he threatened her life if she returned to Fiji with the children.  The Tribunal finds that the domestic violence which occurred, and the fear that the applicants hold go far beyond mere assumptions and speculation.

3. When applying an overall balanced assessment of that evidence, along with applying careful  consideration to the totality of the evidence, including [Mr A’s] past domestic violence conduct and the country sources about the status of women and violence against women in Fiji, the Tribunal is satisfied enough to make a positive finding of a real chance of the applicants experiencing serious harm in the form of family or domestic violence from [Mr A] should they return to Fiji.

   Best interests of children

4. Already indicated in these reasons, the Tribunal is satisfied that there is a real chance of serious harm by way of domestic and family violence by [Mr A] towards both applicants and the children [Child A] and [Child B].  The Tribunal is satisfied and finds that there have been multiple recorded incidents with the QPS material of domestic and family violence whereby both applicants have been the recipient of domestic violence perpetrated by [Mr A]. 

5. The Tribunal accepts that [Mr A] originates from Fiji, and that he has extended family living in Fiji, and he has the capacity to travel to and enter Fiji at a time or means of his choosing.

6. In respect to this application, the Tribunal has earlier described the applicants and the nature of their relationship with each other, that is, the primary applicant is the second applicant’s mother.  There are two Australian citizens who are not included in the application subject to this review.  Those children are the [Child A] and [Child B] who are the children of the relationship between the primary applicant and [Mr A]. 

7. Subject to the parenting orders made by the Federal Circuit and Family Court of Australia, those two children, along with the second applicant, are in the principal care of the primary applicant, who is their mother.  Therefore, they will ultimately be impacted by the Tribunal’s decision. 

8. There are court orders in place with respect to the parenting of the children.  Those orders were made during a period of when the applicants’ application was still pending.  When assessing the sealed copy of the parenting orders, clearly they were drafted with the applicant’s application for a review of the delegate’s decision in mind because the orders expressly provide that if the primary applicant is not in Australia, then the children are to live with [Mr A]. 

9. This in itself raises significant questions of what impact would occur to these children if the applicants were removed from Australia, and the children [Child A] and [Child B] were placed into the care of [Mr A], the perpetrator of the domestic violence within the family unit.  The evidence before the Tribunal conclusively shows that the projection of his domestic violence was not solely directed towards the primary applicant; he also caused a significant injury to the child [Child A] and exposed the children to substantial amounts of associated domestic violence.

10. When carefully considering those features just identified, the Tribunal finds that in addition of exposing children to domestic violence, a foreseeable consequence of the applicants’ removal to Fiji would be the separation of the family unit. 

11. Clearly it is not a desirable outcome for the family unit to be dissolved and the youngest two children be placed into the care of a person who has mental health issues, a propensity to consume alcohol to excess on a daily basis, has the propensity to indulge in illicit drug abuse and has domestic violence or anger management issues.  To make any decision which endangers or places any of the children at risk of harm is not a decision undertaken in the best interest of any of the children involved, including the second applicant.

12. The United Nations Convention on the Rights of the Child provides that the family, as the fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community.  It is recognised that for the full and harmonious development of a child’s personality, the child should grow up in a family environment, in an atmosphere of happiness, and with love and understanding.  There is a legitimate expectation that the principle relating to the best interests of a child as provided within the United Nations Convention on the Rights of the Child[58] shall be treated as a primary consideration by the decision-maker in matters where the best interests of children whose interests could be affected by decisions.[59]

    [58]Article 3(1).  The Convention was ratified by Australia on 17 December 1990 and entered into force for Australia on 16 January 1991.  By an instrument of declaration made 22 December 1992, the Commonwealth Attorney-General declared the Convention to be an international instrument relating to human rights and freedoms for the purpose of the Human Rights and Equal Opportunity Commission Act 1986 (Cth).

    [59]Minister of State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273.

13. Therefore, when careful consideration is applied to all of the facts, circumstances and features of this matter, the Tribunal finds that it would not be in the best interests of the second applicant to be separated from his two younger siblings, and nor does the available evidence provide that it would be in his best interests for him to be placed into the care of [Mr A] as provided within the parenting orders.

14. The Tribunal also considers that when considering the provisions of the United Nations Convention on the Rights of the Child, neither is it in the best interests of the primary applicant’s two youngest children, [Child A] and [Child B], to be separated from the older sibling, the second applicant or their mother who is their primary carer.

    decision

15. The Tribunal remits the matter for reconsideration with the direction that the applicants satisfy section 36(2)(a) of the Migration Act.

    Wayne Pennell
    Senior Member

    
    

    Attachment  -  Extract from Migration Act 1958 (Cth)

    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.

    …