1921163 (Refugee)

1921163 (Refugee) [2024] AATA 3882 (28 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Michele Ann Clayton (MARN: 0957773)
CASE NUMBER:  1921163
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Rebecca Lee
DATE:28 June 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 28 June 2024 at 7:42pm
CATCHWORDS
REFUGEE – protection visa – Fiji – relationship and child while married but separated – fear of harm from partner, his family and community – new claim of partner’s verbal and physical abuse, and family’s connections to former politician – applicant’s family background and relationships – breach of employment conditions by not giving sufficient notice – education and work in home country and Australia – child’s behavioural issues – inconsistent, exaggerated or speculative claims and evidence – unfavourable inference for late claim – previous departure and return – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 423A
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1992) 34 ALD 347
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 26 July 2019 to refuse to grant the applicants, a mother and son respectively, a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The first-named applicant (referred to as ‘the applicant’ in this decision) arrived in Australia as the holder of a Subclass FA-600 (Visitor) visa on:[1]
(a)[December] 2017, departing [January] 2018;
(b)[June] 2018, departing [August] 2018; and
(c)[August] 2018, and has not departed since.
[1] Movement record - 12 January 2024.
The second-named applicant (referred to as the ‘son’ in this decision) arrived in Australia as the holder of a Subclass FA-600 (Visitor) visa on [June] 2018, and has not departed since.[2]
[2] Movement record – 24 June 2024.
The applicants, who claim to be citizens of Fiji, applied for the visa on 17 September 2018.
The applicants provided the Tribunal with a copy of the delegate’s decision. The delegate refused to grant the visa on the basis that the level of harm the applicant may experience did not rise to the level of serious or significant harm.
The first-named applicant appeared before the Tribunal on 5 February 2024 to give evidence and present arguments by video conference using Microsoft Teams. Whilst the applicants had been previously represented in relation to the review, their representative did not attend the hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CLAIMS AND EVIDENCE
Before the Department
According to information contained in her protection visa application, the applicant is a [Age]-year-old Fijian citizen who was born in Suva, Fiji. Further, the applicant:
·            belongs to the Fijian ethnic group, was born to Fijian citizens and is Christian;
·            is divorced;
·has a son, the second-named applicant, who was born in [Town 2], Fiji, to Fijian citizens and who is [Age] years-of-age. No-one else had custodial access to the son;
·did not have a partner, parents, siblings, or other children, including those who are deceased, in Australia or overseas, other than an uncle from Suva, Fiji who is [Age] years-of-age and an aunt from [Town 3], Fiji who reside in Australia (and with whom the applicant was living);
·            was in contact with relatives, who live in Suva, Fiji, once in a while;
·in [Years] completed a [Qualification in Subject 1] at [Institution 1] in [Town 2], Fiji, supported by their uncle and grandparents;
·in [Year] commenced but withdrew from a [Qualification in Subject 2], [Institution 2] in [Town 4], Fiji, after spending [Years] at high school in Suva, Central District, Fiji, and [Years] at primary school in [Town 5], Fiji;
·from January 2012 to June 2018 was employed as [an occupation 1], employed by [Employer 1], Fiji;
·            obtained their Fijian passport [in] 2017;
·            can speak, read, and write in both Fijian and English languages;
·            had not undertaken any overseas travel in the last 30 years; and
·was making her own claims for protection and claims on behalf of her son but did not receive assistance from an interpreter or anyone else to complete the application.
In relation to their claims for protection, the applicant claimed she left Fiji because she fell pregnant to one man (‘[Mr A]’) whilst remaining married to another man with whom she had lost contact. The applicant said:
[Mr A] … supported me during my time of pregnancy but it was not revealed to his family that I was still a married woman. I visited my uncle and cousins for Christmas in Perth last December and [the second-named applicant] was with his father [Mr A] …my son's dad, lives with his parents in a farm on the outskirt of [Town 3], Fiji.
After returning to Fiji in January early this year, I begin to notice a different behaviour and attitude from [Mr A]'s… family. He begin to be more jealous of me saying that I have changed after visiting Australia. We became more close because of my son and only agreed to be connected to share the responsibilities of being parents. After attending to a social group get together, I came home late the next day, our relationship was different and he verbally abused me in front of my son and grandparents. He left for his family and told his parents that I have been hiding the fact about my marriage to him and his family.
His mother and sisters began to call all family friends and relatives to tell them the fact about me. [Mr A] began to take my son … regularly to his parents. I began to leave the life of a women who has been branded for my past mistakes.
Due to the fact that in Fiji, extended families is very important, I will be continuously be a laughingstock to some people as my history is being circulated among family members and circles of friends. If my son … grow up in Fiji, he will be labelled and bullied by many as the consequences of my actions and making the wrong choice.
The applicant described the harm she had experienced in Fiji as follows:
I was bullied by [Mr A]'s families and am worried about the impact it will have on me and my son. It's not easy to connect to my true self and, importantly, to express my true self in the company of others. [Mr A] … has begun to win my grandmother's trust and they are working together to influence us to get married. I am being abused verbally as the story of my past begin to circulate and my profession as [an occupation 1] is at risk as [Occupation 1] have a standard code of ethics. I find it hard to move on as almost all my family members knew about my personal history. I am psychological affected as the way I think and do things begin to change. I was partying continuously thinking that the thoughts will go away. My work as [an Occupation 1] is beginning to be affected every time I thought about the incident (I raised my tone while talking to [specified people] in [specified place]). My relationship with [Mr A]'s family was affected and I stopped accompanying my son when [he] visit his father and grandparents.
The applicant did not seek help within Fiji because she wanted to keep things away from outside members as it would undermine her reputation as [an occupation 1]. It was a sensitive issue and every time it surfaced, [Mr A] and the applicant broke into an argument in front of their son and her family members.
The applicant tried to ask for a transfer to another [location], but it was difficult as the applicant did not wish for [Employer 1] in Fiji to know about her personal life. The applicant also said:
Nothing will change. Bullied is not seen as a sensitive issue, but people only react when someone had done self-harm or tying to commit suicide. Relocating within Fiji is not going to solve the problem. The stigma is there all the time as there is not much progress on the legality of dealing with bullies and victims in Fiji.
In response to the request to explain what the applicant thought will happen to them if they returned to Fiji, the applicant said:
As time goes, am not ready to move on, to live more realistically and with deeper meaning. Am seen by my friends [and] family as weak, pathetic, and a loser. I sometimes believe that these things the bullies are saying about me are true and causes me stress, depressed and helpless. As my son grows, they might manipulate my son and change the way he looks at me.
Given the light to spend every second weekend with [Mr A]'s… family, they might use him to carry hostile and self-destructive information. Families might use my son to respond to intrusive question about me. I fear the fact that my son might lose positive feelings for me as a single mother. Others might demoralise my character to my son which will affect our relationship when he grows up. The fact that I gave birth to [her son] while I was still married to [another man] might cause him to do self-harm. I want to raise my son in an environment where he is free from all this accusations and discrimination. I do not want my son to be a subject of humiliation. As a child, [he] has the right to be brought up in a safe and healthy environment for his wellbeing and successful future and it is my responsibility as a mother to provide for that safe place.
The applicant thought that they would be harmed or mistreated if they returned to Fiji, as follows:
Both my son… and I will be bullied. We all know what it is like to be bullied especially when the influenced of social media is very strong. There is a possibility of self harm or suicide when my son grows up and finds out all about this fact. I need a space where I can nurture my son and for me to live a healthy life until the right time comes for me to tell my son all about my past. Being [an occupation 1], I am well aware how some [specified people] in the [specified place] behave when being bullied, that is why I am making the choice to raise my son in a land far from home, away from all the labels which people have begun to label me with.
The applicant also claimed that the Fijian authorities would not protect the applicants if they went back, saying:
In Fiji, there are many bully incident which are unsolved. Bullies in the workforce. It is not treated in the way to uphold self-worth. Because of the Fijian cultural context, people are always welcome to do traditional ways of settling issues. However, time have changed and because of technology, I am being a victim of bully. I am more worried about my son as he might become emotionally withdrawn and stayed away from his peers. For me, I am beginning to isolate myself from my circle of friends and working friends as they began to see me differently. Both my son and I are at risk of long-lasting emotional problems and I can imagine what can happen if either my son or I wish to take things in our own hands.
Supporting documents
The applicant lodged the following documents with the Department in support of their protection visa application:
·The biodata page of a Fijian passport (reference 1xxxx93) issued to the applicant [in] 2017, and which expires [in] 2027;
·The biodata page of a Fijian passport (reference 1xxxx16) issued to the applicant’s son [in] 2018, and which expires [in] 2028;
·The applicant’s birth certificate;
·The applicant’s son’s birth certificate, where he was born in [Town 2] to the applicant and [Mr A];
·Letter from the Fijian Islands Revenue & Customs Authority dated [March] 20211 confirming the applicant’s registration as a taxpayer; and
·Certificate of Final Dissolution of Marriage dated [April] 2018 between the applicant and her former husband, and the preceding Conditional Order of Dissolution of Marriage dated [March] 2018;
·Confirmation letter from [Employer 1] dated 20 June 2018 of the applicant’s employment as [an Occupation 1] on contract at [Workplace] from January 2018 to January 2023 (having worked there since 2017) and all previous positions as follows:
[Redacted – Workplaces, Years, Occupation]
·The applicant’s Fiji Seventh Form Examination Result Notice ([Year]) and Fiji School Leaving Certificate Examination ([Year]);
·[Institution 1] Transcripts of Academic Record for [Qualification] in [Subject 1] ([Years]) and [Subject 1] ([Year]);
·Fiji [Occupation 1 authority] [Year] provisional approval of the applicant’s registration as [an occupation 1];
·Reference dated 22 June 2018 from the [senior occupation 1] at [Workplace]; and
·Letter of Confirmation the applicant attended [Institution 1] dated 22 June 2018.
The Department did not invite the applicant to attend an interview.
Before the Tribunal
The review application
On 1 August 2019, the applicants lodged an application for review of the delegate’s decision with the Tribunal.
On 5 August 2019, the Tribunal wrote to the applicant acknowledging receipt of the review application and stating that if they wished to provide material or written arguments for the Tribunal to consider, they should do so as soon as possible. The included information sheet advised that if the applicant had any material not yet provided, which they believed supported their application, including a statement setting out why they disagreed with the delegate’s decision, then they were to send it in as soon as possible.
Nothing was received until 2024.
Pre-hearing submissions and evidence
On 10 January 2024, the Tribunal sent a link to a pre-hearing information form to the applicants’ representative which contained various questions for the applicants to complete.
On 15 January 2024, the Tribunal sent the applicant an invitation to attend a hearing and a letter stating:
You should provide a written submission setting out all claims made and maintained by the applicants by 29 January 2024. The submission should be accompanied by a signed declaration from the applicants that the submission has been read and explained to them and that it accurately and completely presents their claims.
No such signed declaration was presented. On 2 February 2024, the applicant’s representative forwarded to the Tribunal an unsigned statutory declaration of the applicant (“unsigned statement”), in which it indicated that as of 25 June 2019:
(a)when the applicant returned to Fiji in January 2018 after visiting Australia, [Mr A] and she started arguing a lot and [Mr A] physically abused her once by pushing and punching her once, whilst she was holding their son;
(b)when she went out with friends, [Mr A] became angry about it and one time when she returned home at 7am, that is when he punched her, which she thought was as a result of his insecurity and the applicant previously asking [Mr A] if she could bring their son over to Australia on the next holiday. She did not let [Mr A] take their son to his parent’s place that day,[3] even though they had agreed every two weeks [Mr A] could take their son to his family, and despite fearing [Mr A] would hit her again;
[3] See [9].
(c)after [Mr A] hit the applicant, he took the son back to his place[4] and he told his family about her being married to another man;
[4] See [56].
(d)that was the second time [Mr A] had hit her. The first time was in 2015, when he slapped her after she had become angry with him for taking drugs and said she did not want to be with that kind of man;
(e)she did not report the abuse to the police because she feared being sacked from her job because [Employer 1] does not condone that kind of relationship, given she was in the wrong for still being married;
(f)she was always afraid of him, and he became aggressive if she tried to talk about it with him and arguments made him lash out at her;
(g)the fact that she was married when she had her son with [Mr A] was shameful, but [Mr A]’s mother talked ill of her in front of everyone, which affected her, and suggested the son was not [Mr A]’s. [Mr A]’s mum said that she wanted to take the son away from the applicant because she was married, and they were going to report her to [Employer 1]. The applicant felt [Mr A]’s family was trying to jeopardise her work and her relationship with her son and encouraged [Mr A] to stop supporting them financially. [Mr A]’s mum also confronted the applicant at the [workplace] one day;
(h)the applicant feared being dealt with in a traditional way as a married and not divorced woman and having a partner, by her clan after a meeting, and that her grandfather would take things into his own hands, plus her father and grandfather might have to face the consequences and be stripped of their titles. She did not know if she was going to be belted but she did not even wish to face the questions;
(i)[Mr A]’s father is an influential person, being the [occupation 2] head of [an agency] on [Town 6], Vanua Levu and the Fijian authorities are brutal, and [Mr A]’s stepfather is in the army, and with connections to [the former Prime Minister] Bainimarama the applicant will probably lose her job and if that happened, she would also lose her son to [Mr A]’s family;
(j)on several occasions, more than once or twice, [Mr A] was aggressive around their son, inflicting corporal punishment when the son was a year old. They disagreed about parenting methods. The applicant worries that the son has a sense of retaliation in him and is very aggressive;
(k)on two occasions [Mr A] did not return their son to the applicant as agreed. Once for a week and the applicant went and got the son and the other time overnight. The weekend visits then ceased, with the applicant requiring [Mr A] to visit her place to see his son. The applicant was fearful that [Mr A] was going to take her son away from her, and there would not much she could do if that happened because she was just a woman who had a baby whilst married to somebody else and they have family connections.
(l)detailed her upbringing, the violence of her father, her being disowned by her father’s family and being raised by her maternal grandparents and the events which led her to be self-harming whilst in year [grade], and this is why she is worried about her son becoming suicidal because the applicant can see what is happening with his father, his paternal family and herself and the trauma that will come to him from that. She does not wish to be disowned by her son for what she has done;
(m)she discussed bullying in her protection visa application because she is worried that the bullying and shame that has been put on her about the circumstances of her son’s birth, because of Fiji’s traditional and religious beliefs, will be put on the son;
(n)there is a very low probability of her getting back into [occupation 1]; and
(o)the applicant did not want to be under the control of anyone and as a woman she was at risk if she challenged that control.
The part of the unsigned statutory declaration said to be as of 24 January 2024 said:
·I remain afraid to return to Fiji and am still worried about my son…being taken from me by his father or his father’s family, for reasons related to my status as a mother who had a child with one man whilst still married to another, and also additionally now, my incapacity to work as [an occupation 1] any longer in Fiji, following what happened there before.
·I was raised by my grandparents, who have now both died, and I do not have anywhere to go with my son if I return to Fiji. About relocating, I don’t know where I could go. I have no money, no job, and in Fiji you can’t just wander around and they let you move to any place. I can’t just take up residence in a village somewhere.
·I don’t know what work I can do in Fiji now, but I don’t believe I can get back into [occupation 1]. I think it will be very hard for me to support myself and my son and that this and my status will go against me if they try to take him from me.
·And I believe my son’s father, or his family will take my son away from me and I will be looked on badly as a woman who had a child while married to a different man, and I don’t believe anyone will help me. It’s still a shameful situation in Fiji which is still a very conservative society.
·And I won’t have any money to fight that happening.
·I did not take my son away from his father because I wanted just to keep him to myself. It was because his father was abusive to me and also to [the son] himself sometimes. He was very aggressive to him even just as a small baby.
·The abuse to me was mostly verbal abuse from him and his family but there were also some occasions of physical harm to me from [the son’s] father. This is normalised in Fiji still now.
·There are some services for women in Fiji but really if I don’t have somewhere to go and if [the son’s] paternal family want to take him, I think I am very vulnerable to that occurring and the reason for it will be because of everything that happened that drove me to leaving my work [and] going to Australia in the first place; the abuse from [the son’s] father and his family and all of the other things I faced in Fiji.
·If I lose my son, I don’t know what I will do. I have had bad issues in the past with depression over all of this coming on top of my own past history with my family. I don’t feel like I could survive losing him.
·When I left Fiji, it was against the background of the things I have claimed before in my original Protection visa application and in greater detail in this statement. I remain worried for the same reasons about going back to Fiji now. I am very worried about what will become of both of us.
The hearing: supporting documents and oral evidence

At the start of the hearing, the applicant confirmed that all the documents which had been sent to the Tribunal as part of the review process constituted all the necessary documents before the Tribunal.
The applicant did not receive a copy of that the unsigned statement which had been seen by the Tribunal only that morning, but had one seen one sent to her a couple of weeks ago about 24 January 2024. The statutory declaration was typed by the applicant’s then representative.
The applicant gave the following oral evidence.
The applicant prepared her protection visa application, with the advice of an [aunt], whilst in Perth. The aunt has had a protection visa granted. In Fiji, the aunt was [an occupation 1 superior].
The applicant’s maternal grandparents, who raised her, passed away August/September 2023. The applicant’s mother, aged [Age], is alive. The applicant’s parents are living in Suva, Fiji. The applicant seldom has contact with her mother but no contact with her father. Her mother currently is contacting the applicant twice a week, since the applicant’s grandparents passed away. The applicant does not return her mother’s calls, as there is no mother/daughter relationship. The applicant allows her parents to call and talk with her son over Messenger.
The applicant’s son is about [Age] years old now. He had just turned [Age] when they travelled to Australia. The applicant has [siblings]. The applicant was about seven when her sister joined her at her grandparents. The parents raised the brothers. They all lived in the same suburb in Suva, about fifteen minutes away from each other. When they were growing up, they did not see each other all the time.
The grandparents did not want the applicant to go over to her parents, because the applicant’s father’s relatives had said that the applicant was not his child at her birth. The applicant’s parents have never married, and the mother was living with the grandparents at the applicant’s birth. When the parents had a shaky relationship, the mother returned to her parent’s house for two to three years. The brothers would visit. The applicant was thirteen or fourteen years of age. The applicant’s mother would come and go because her relationship was not stable, and there was domestic violence.
The applicant’s sister is married with [children], living in [Town 3], Fiji. The applicant has regular contact with her sister because they are close. The applicant’s brothers still live with their parents, and they are both unemployed and in relationships. The applicant has infrequent contact with them.
The applicant was employed as [an occupation 1] in Fiji. The applicant finished high school in Suva in [Year], which was 45-50 minutes away by bus and walking. In [Year] the applicant only completed one semester at university, leaving to study [subject 1]. The applicant’s parent’s relationship was a love/hate relationship, her father was having affairs, and both were violent with each other. At that point her sister was sixteen, and she ran away from home and eloped with her now husband.
The applicant believes she has had an interest in [occupation 1] from a young age and believes in helping [people]. The aunt came to live in her home when the applicant was [age] years old. The applicant is close with her mother’s sisters, who are in [age range] now, as they are like her sisters. They were all raised together, even the applicant’s uncle, they all treat the applicant like their youngest sibling. The applicant’s mother’s sisters live in the grandparent’s house with their [children], they are in relationships, with one partner living at the house, and do not work. The applicant is close with her cousins.
The applicant’s aunt and uncle live in Perth. They have [children] in Perth.
The applicant’s father has [siblings]. The applicant does not have a relationship with her father’s side of the family, and there is no circumstance in which the applicant said she would contact them. The applicant acknowledged that she could not let go of what they said about her and her mother.
The applicant left Suva in 2012 for her first posting to Vanua Levu where she met her first husband. He was [occupations]. They married in 2013 a few months before [a specified time] and then he returned to the islands. In 2013 she had been posted back to Suva due to a mild heart attack. After two weeks off-work, she was posted to a [workplace] near her home. The applicant found out he was having an affair in October 2013 and so did not get wish to get married traditionally. In 2018, the legal marriage was dissolved. She did not wish to file for divorce, as she did not do anything wrong. He thought he could win her back. She had been posted [in location]. The applicant maintains social media contact with her first husband.
[Mr A] was the applicant’s high school boyfriend. In Suva, the applicant met [Mr A] before the applicant was legally married. [Mr A] knew the applicant was going to be married. A physical relationship began in 2014, when the applicant considered herself separated from her husband. The applicant fell pregnant with her son [and] [Mr A] was surprised. The applicant explained about her first husband cheating on her.
When the applicant’s son was born, [Mr A] and the applicant’s relationship was not so good. The applicant used [Mr A] to cover her wounds, from what she’d been through with her Mum’s experience, the family etc. She has been traumatised by domestic violence for a very long time, and she does not have a good opinion of men.
When it happened to her, she had tried so hard not to repeat what had happened in the family, it was like a continuous cycle of violence, with her Mum, Mum’s sisters, and Uncle. The applicant initially was happy that she was going to settle down and have a family, but then it was different when she learned that her first husband had cheated on her. She may have used [Mr A] to get over her husband, needing love, attention, and compassion at that point. [Mr A] provided this for a little while, which changed when she fell pregnant.
The applicant was alone for the second trimester, with [Mr A] being away for work. The applicant was [working] and renting in [Town 7]. The applicant had gone to [Town 7], after applying in 2014 for a transfer. In 2013 the applicant was in Suva staying at home – as soon as she came to Suva she was married. The first husband came and visited her once on leave in [Town 7]. In July/August 2014 she found out that the first husband was cheating on her, because his cousins told her. She told him she did not wish to be religiously married anymore.
The applicant paid a visit home to Suva one weekend, and the relationship with [Mr A] started. The applicant said at first it was good and caring, up until the applicant found out he smoked marijuana. He would visit her in [Town 7] on weekends – occasionally longer – staying with the applicant. She stayed at her grandparents’ place when she visited Suva. The applicant became mad with [Mr A], because of her job, and they argued. [Mr A] threatened her but those arguments did not get physical. She said he said he would punch her, together with the gesture three or four times of putting his fingers on her forehead, with an open hand, pushing her head away. She would say ‘take your things and leave’. The first time occurred in 2014 and he left, and they separated for a while and then he promised he would not do that. The second time it happened, he did not leave.
[Mr A] was employed, running a workshop for [job task].
The applicant’s son was born in [Year], the applicant used her maternity leave entitlement for three months, which she spent with her grandparents, the applicant brought her sister with her when she returned to work in [Town 7], and then the applicant was transferred back to Suva.
When the applicant was at university, the applicant worked at [Employer 3] for two or three months. Otherwise, the applicant did not work until she became [an occupation 1].
The applicant’s aunt and uncle left Fiji in 2013. The applicant was in contact with them occasionally. The applicant came to Australia in 2017, without her son, having never travelled overseas before that. The applicant wished to pay her uncle a visit. When asked if she had a fear of returning to Fiji when she returned in January 2018, she said she did not.
In 2017, the applicant and [Mr A] were having arguments, fighting over their son. [Mr A] threatened to take the son away from the applicant. The applicant and [Mr A] lived together in her grandparent’s house in Suva after her new posting, because she wanted her son to know his father and to be a family. Three months and then [Mr A] would return to his family home. [Mr A] was insecure and smoked every day, which meant the applicant could not trust him with their son. The applicant and [Mr A] stopped living together around June or July 2017. [Mr A] would have their son only on certain occasions. After they stopped living together, [Mr A] threatened to take their son away from her. [Mr A]’s family had military connections with the former Prime Minister, and so the applicant was afraid [Mr A] would be granted custody of their son. The applicant acknowledged that as of December 2022, that Prime Minister had lost the election and that any connection [Mr A]’s family has with him would not be a threat to the applicant.
The applicant returned to Australia in June 2018, bringing her son with [Mr A]’s permission. The applicant said she needed to get away from [Mr A] and his family, because she did not want [Mr A] to take her son away and she did not want her son to go through what she went through, being that she was disowned by her father’s family, growing up with an alcoholic father and in a violent home. She was forced to live with her grandparents, even though they were not there for her emotionally. She missed out on positive parent/child relationships. At the back of her mind, the applicant made a choice to get her son out of Fiji.
The applicant left Australia in August 2018 to go to [another country], without her son, to have some time to think about lodging an application for a protection visa. Her trip was paid half-and-half by herself and her aunt and uncle. The applicant was staying at her aunt and uncle’s home in Perth with her son because she had no work rights here and she was thinking of her options as to whether to stay or go back.
[Mr A] was furious when the applicant did not return to Fiji with their son. They had a family meeting to try and get the applicant to return. The applicant told him that she was not going to give [Mr A] any chance to be with his son, because of his attitude and behaviour towards his son. A couple of times, the applicant had thought [Mr A] was too violent the way he disciplined his own son. He would smack him badly, using his hands or a spoon on the hands, buttocks, or shoulders, or grabbing his collar with his hands. This happened when the son was one years old.
The applicant added that [Mr A] got physical with the applicant, punching her when she returned in 2018, after she had been out with her friends and returned late. It was at her grandparent’s place. She was punched with a closed fist to her face. She was holding her son. She cried and told him to get out of her house and she was going to call the police. The family members though [Mr A]’s behaviour was OK. She did not call the police because she thought the police would simply tell them to solve it. She had seen it happen before between her parents, after her mother reported. The police go for reconciliation first.
[Mr A] was at her house when she returned in early 2018 because there was a get-together. The applicant and her son had their own room. [Mr A] was staying in the boy’s room. [Mr A] and their son only talk when the applicant allows, once a month. [Mr A] has been cut-off from the both of them, via social messenger since about June 2023, because [Mr A] was verbally abusive over social media, drunk calling the applicant about the fact that their son was in Australia. The applicant said [Mr A] and their son speak on holidays, because [Mr A] is still friends with the applicant’s uncle.
The applicant thinks [Mr A] is in a relationship but has no evidence to prove that. They are not connected via Facebook.
In 2019, the applicant appealed to be given the right to work in Australia. The applicant’s first job in Australia was at [Employer 4] for two or three months. The applicant then applied for a position to [do occupation 1 work] in [Town 8], where she and her son were for three years. The applicant’s limited registration with the [Occupation 1 authority] of Western Australia and her contract came to end, and the applicant applied for interstate positions. Over the holidays, whilst the applicant was in Brisbane visiting family, she received a job offer which she accepted. The applicant is [another occupation], at [Workplace]. She started on 4 January 2024. The applicant recently located from Perth to Queensland and has found a place for her and her son.
When asked what her fears were if she returned to Fiji, she said the only fear she had was for herself and her son. She does not wish for her or her son to be physically or emotionally abused by [Mr A] or the community, and she does not want her son to be physically separated from her. She does not want her son to live in or experience that kind of environment. She would not be in a relationship with [Mr A], but [Mr A] is related to the applicant though his stepfather. In 2014, [Mr A]’s parents had spread stories about how she was married and not divorced even though she’d had her son with [Mr A]. When she returned in 2018, his mother was going around spreading rumours about the applicant, resulting in her as a Fijian woman feeling so low. The applicant was concerned about how society would look at her, and at what they may say.
As Fijians, a married person should stay married, and it paints the applicant as a bad person because she had a son to [Mr A] whilst married to someone else. The applicant said it was beyond her control but agreed that people do divorce and separate in Fiji. She will be looked down upon and belittled because she had been married before. When asked how people other than [Mr A]’s family would know, the applicant said Fiji was a very small place and rumours can spread quickly. The applicant thought she could be physically and emotionally abused, as well as through social media by her clan, the villagers, community, and family members, which would be compounded by the applicant returning to Fiji now.
When asked what her fear for her son was, the applicant said that she does not wish him to grow up in a traumatic environment, that is from an abusive father who is a drug addict; having a new stepmother in his life and not getting the moral and loving support he should from the applicant. The applicant said in Fiji she could keep her son away from [Mr A] for a while but not forever, because the applicant’s family would in adhering to tradition allow for [Mr A] to re-establish contact with his son or even take him away from the applicant because she fears not being able to get a job on her return to Fiji or be able to support the two of them.
The applicant said she breached the law by not giving enough notification upon resigning from the [workplace] in Suva, for which the applicant said she was fined. She resigned one week before she left to come to Australia in 2018, instead of giving one month’s notice. The applicant then acknowledged that the so-called fine was not being paid for the additional three weeks’ notice period which she did not work. The applicant acknowledged that she still received a glowing reference, and that she would be able to find another job with that type of reference. In response to the Tribunal saying there would be no difficulty in her finding a job as [an occupation 1] back in Fiji, the applicant had no comment. The applicant also acknowledged that she had a good work history and agreed that [Employer 1] would welcome her back with open arms.
The applicant said she could not return to live with her aunts in Suva, because she would be ashamed. Since her grandparents have died, the applicant does not wish to return to that house as it is too painful, as that is where the grandparents brought her up, with the memories of all they had been through together.
The applicant had been back to Fiji, with no fear of returning to Fiji at that time, with which the applicant agreed. The applicant said in her application that her uncle was supporting her, which was correct when she was unemployed. She did not detail all her family members in Fiji and Australia. In the protection visa application, the applicant had not mentioned that [Mr A] had been physically abusive, for which the applicant had no reason and said she could not comment on that but said she had included it in her later statement. The application says the applicant was bullied by [Mr A]’s family and had been abused verbally and that her position as [an occupation 1] was at risk. The applicant said at one point [Mr A]’s mother came to [workplace] and made a scene. Later she said it was two times. This caused the principal concern. As [occupation 1] as [specified workers] were not allowed to have that kind of relationship whilst being married, her job was at risk under the Code of Ethics. When asked what the source of prohibition, people do it behind close curtains, but you can be reported to [Employer 1] for a breach. It was embarrassing as there were [specified people] about. The applicant nodded her head when the Tribunal said that the [Mr A]’s mother’s behaviour would not see the applicant lose her job. The applicant said she could have been suspended, but she was not suspended because she came out to Australia. She was given a letter saying she could be counselled, being questioned about what was happening, by [Employer 1]. The applicant said it was written in the [employment] book, but the applicant said she was not given anything in writing.
The protection visa application said she was being influenced to marry [Mr A], but the applicant thinks [Mr A] is in another relationship and she was not going to marry [Mr A]. When the applicant returned in January 2018, she asked for a transfer through her [manager]. She had to serve a three year’s appointment. The applicant said she could serve three years anywhere [Employer 1] decides to place her.
The protection visa application also expressed concern for her son’s mental health, and the applicant elaborated that was if he knew the fact that the applicant was married when he was conceived. The applicant’s son is doing well at the moment. The applicant said when they arrived in Australia her son was exhibiting behaviour consistent with being abused, being violent when he was 2, 3 or 4 years old. He cannot self-regulate, he will shout and scream and throw things, but the applicant says it is not undiagnosed behavioural issues. The son has had access to psychiatrists who attended schools in [Region], who offered him medication. They said he may have undiagnosed ADHD. The applicant opted instead for positive behavioural strategies, believing that her son does not have ADHD.
In the statement, when she returned in January 2018, she said that was [Mr A] hit her a second time. The applicant said overall [Mr A] punched her twice. The applicant had said there was no point doing anything about it, because [Mr A]’s father works in [a government agency], and he might dismiss it. [Mr A]’s family had the upper hand.
The applicant said that she had not been able to move on and find a partner, because what [Mr A] did has stayed with her and it has been traumatic. For their mental and emotional health, the applicant and her son had become better whilst being in Australia. The applicant has undergone mental health training as part of her work development in Australia.
Country information
Political Connections

On 14 December 2022 voters went to the polls in a general election to select fifty-five members of parliament. This occurred subsequent to the Department of Foreign Affairs and Trade (DFAT) Country Information Report Fiji of May 2022.
Prime Minister Voreqe (Frank) Bainimarama’s FijiFirst Party failed to win a majority, ending his 16 years in power.[5] FijiFirst won the popular vote (42.5 per cent); however, it only won 26 seats, just short of the 28 needed to form government.[6] The new Prime Minister, Sitiveni Rabuka of the People's Alliance (PA), leads a three party coalition that includes the Social Democratic Liberal Party (SODELPA) and the National Federation Party (NFP).[7] Rabuka instigated both 1987 coups and served as Prime Minister between 1992 and 1999.[8] His coalition holds a slim majority in parliament.[9] Despite some irregularities, international observers assessed the electoral process as being free and fair overall.[10]
[5] ‘Fiji’s new politics', Interpreter, The (Lowy Institute for International Policy), 17 January 2023, 20230619092820; 'Fiji: A chance to stop political history repeating', Interpreter, The (Lowy Institute for International Policy), 14 February 2023, 20230317105123
[6] ‘Cautious Optimism for Fiji’s Coalition Government', Australian Institute of International Affairs (AIIA), 08 March 2023, 20230619104244; ‘Fiji elections 2022: Bainimarama loses parliamentary majority as count finalised’, The Guardian, 18 December 2022, 20221229084208
[7] 'Fiji - In brief', Economist Intelligence Unit, n.d., Accessed 19 June 2023, 20230619093756
[8] 'DFAT Country Information Report Fiji', Department of Foreign Affairs and Trade, 20 May 2022, p.16, 20220520095336
[9] ‘Fiji’s new politics’, The Interpreter, 17 January 2023, 20230619092820
[10] 'Freedom in the World 2023 - Fiji', Freedom House, 31 August 2023, 20230831112859; 'Country Reports on Human Rights Practices for 2022 - Fiji', US Department of State, 20 March 2023, p.11, 20230322095436
There has been no significant political unrest or deterioration of government functions since the Rabuka government was elected.[11] The transition of power has been peaceful, with the military so far refusing to intervene.[12]
Mental Health
[11] 'Fiji 20230621135833 - Country Information - Political Update', Department of Foreign Affairs and Trade, 02 August 2023, 20230803112036
[12] ‘Can Fiji keep its democracy in 2023?’, East Asia Forum, 3 February 2023, 20230712114936; ‘The number behind Fiji’s coup culture’, Australian Strategic Policy Institute, 1 February 2023, 20230712115112
According to the Department of Foreign Affairs and Trade (DFAT) Country Information Report Fiji May 2022:
2.13 The law provides for public mental healthcare but, in practice, it may not be available. Some support is available from nursing stations, health centres, general practitioners and hospitals. A public psychiatric hospital, St Giles, is located in Suva. Sources told DFAT there was an inadequate number of mental health professionals to meet demand. Telephone counselling and mental health CSOs provide services, and online resources from Australia and New Zealand might be used by Fijians. Drug and alcohol services are available at St Giles. The US Department of State 2021 Human Rights Report describes St Giles as ‘underfunded’. Sources told DFAT that facilities and treatment are basic and medication might be unavailable.
2.14 Like many countries, including Australia, there can be a societal stigma against mental health conditions in Fiji. This may limit support options from family. These attitudes are less common among the wealthy and the more highly educated. In spite of these challenges, people with intellectual and mental disabilities are more likely to be cared for at home than in a medical facility.
2.15 Other services for mental health patients might be available. There is an increasing number of counsellors (who are not psychologists or psychiatrists) and some non-government organisations provide counselling services. In practice, counselling services are not available in more remote areas and there is a lack of mental health services generally.
In response, the applicant said St Giles means psychotic people, and she has been there. The applicant said the services were basic, so people could not get what they needed.
Violence against women and girls
According to the Department of Foreign Affairs and Trade (DFAT) Country Information Report Fiji May 2022:
3.51 A study by the Fiji Women’s Crisis Centre (FWCC) from 2013 (the most recent study by the FWCC) found 64 per cent of women who had ever been in a relationship had experienced domestic violence…
3.53 Police protection is available but not consistently. Some police stations do not have the equipment or transport to deal effectively with cases of gender-based violence...Women who seek help from advocates (for example, the FWCC Centre runs a hotline) may receive more assistance.
3.54 A magistrate can issue restraining orders. These orders operate similarly to apprehended violence orders in Australia, with conditions that aim to protect a person from assault, threats, intimidation, ‘abusive, provocative or offensive’ behaviour or the procurement of those offences by another person. These orders are enforced by police and provide some protection.
3.55 An audit by the Fiji Auditor General in 2019 found that there is ‘inconsistency’ in the application of legislation that prohibits violence against women. It notes ‘pressure on women to reconcile with their husbands/partners’ by police or society, as well as a lack of knowledge among women about their rights. Fiji Police have a ‘no drop’ policy for domestic violence. This means that cases cannot be dropped by police nor be withdrawn by victims; they must be investigated. This is to prevent victims from being pressured by family to drop the cases. In practice, the Auditor General found (and in-country sources confirmed to DFAT) that the policy was not implemented in all cases and that police did sometimes drop domestic violence cases or were unhelpful or even hostile to victims.
3.56 NGOs provide some services to women and girls who are subject to violence. For example, the FWCC offers a 24-hour telephone crisis counselling service that can coordinate emergency assistance throughout the country. Lawyers and counsellors might also be available to victims. Women’s domestic violence services reported an uptick in demand during the COVID-19 pandemic. Cyclones, which cause people to shelter together in their homes, have had a similar effect of increased violence.
3.57 Women experiencing violence in the outer islands or rural areas may have more difficulty escaping violence. Shelters are unlikely to exist in remote areas and a family member may be relied upon for protection. Conversely, family ties and loyalties and traditional hierarchies can protect perpetrators. Relocation is not necessarily helpful; Fiji is relatively small and sometimes people can be tracked down through kinship networks. DFAT assesses that women who experience domestic violence are, by definition, at a high risk of violence, and a moderate risk of discrimination in the form of lack of access to protection.
In response to a summary of the above country information, the applicant says she knows from experience with her parents, domestic violence still happens. For example, what happened last year with a woman being killed in domestic violence in front of her children. The applicant did not know if she had reported it to the police but had read that she had not reported it to police or the villagers.
Police
According to the Department of Foreign Affairs and Trade (DFAT) Country Information Report Fiji May 2022:
5.6 The Fiji Police Force (FPF) is a national police force that covers the whole country. The US Department of State Overseas Security Advisory Service 2020 Crime and Safety Report assesses Fiji police as ‘professional’ and notes recent improvements in training and accountability. It notes that police may not be based in vehicles and may not arrive in time to disrupt crimes in progress but assesses that ‘victims of crime can expect fair treatment with dignity’…
5.10 The Fiji Police Force overall has the capacity to protect individuals from societal harassment, discrimination, and violence, and police are usually effective in carrying out their role in day-to-day crime detection, investigation, and prevention.
In response, the applicant said she did not think that was entirely true, on the basis that last year a wife lost her life in front of her children by domestic violence. The police force did not stop it. Society says that husbands are to discipline their wives that way.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicants travelled to Australia on Fijian passports and claim to be Fijian citizens. The delegate had no concerns about their claimed identities or nationalities, and there is nothing before the Tribunal which raises a concern. The Tribunal finds the applicants are citizens of Fiji and has assessed their protection claims accordingly.
Applicant’s responsibility
Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a 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 the applicant in specifying, any particulars of their claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.
It is well established that the Tribunal is not required to accept uncritically any, and all allegations made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347 at 348).
REFUGEE GROUNDS
The Tribunal found the applicant generally credible about her background, but prone to enhancing what had happened to her and her son, and what her fears were, in an attempt to bolster their claims for protection and the evidence in support during the hearing. In reaching this view, it has had regard to internal changes within and the exaggerated or speculative nature of some of the applicant’s evidence and the Tribunal’s findings as to the applicant’s reasons for travelling to Australia, as well as other reasons detailed below.
The Tribunal accepts that the applicant’s parents were in an unstable relationship, in which there was domestic violence committed by both parents upon the other, that the applicant’s paternal relatives had alleged at her birth that she was not the father’s child, that consequently the applicant was raised by her maternal grandparents, and that the applicant cannot let go of what her father’s family said about her and her mother, based on the applicant’s evidence at the hearing.
The Tribunal accepts that the applicant’s maternal grandparents have died since she travelled to Australia, that she has a close relationship with her sister in Fiji and her maternal aunts, who remain living in the grandparents’ house where the applicant was raised, but that the applicant does not have a close relationship with her mother and she does not maintain contact with her father or his family, but her parents each have occasional contact with her son, based on the applicant’s evidence at the hearing.
The Tribunal accepts that the applicant had a sexual relationship with [Mr A] in Fiji, whilst formally married to another man between August 2013 and April 2018; she and [Mr A] had a son, the second-named applicant, in April 2016; they stopped living together in the middle of 2017 but had agreed to share the parenting responsibilities and the applicant does not want to and will not marry [Mr A] or other be in a relationship with him, based on the applicant’s protection visa application, the applicant’s evidence at the hearing, the son’s birth certificate, the applicant’s certificate of final dissolution of marriage and the applicant’s conditional order of dissolution of marriage.
The Tribunal accepts that the applicant initially was happy that she was going to settle down and have a family with her husband, but that changed when she learned that he had cheated on her, and that as the applicant said, she may have used [Mr A] to get over her husband, needing love, attention and compassion, based on what the applicant said at the hearing. At one point in the hearing the applicant said that her relationship with [Mr A] was good, up until the applicant found out he smoked marijuana and at another she said [Mr A] provided the love, attention, and compassion she needed until she fell pregnant. The Tribunal accepts that relationships can be complicated and that from mid-2017 the applicant and [Mr A] were not a couple, and will not be, and that the applicant is a single mother, based on the applicant’s evidence at the hearing. The Tribunal also accepts that [Mr A] is in another relationship now, based on the what the applicant said and her stated fear about the son having a new stepmother.
The Tribunal accepts that the applicant travelled to Australia on a holiday to visit relatives in Australia at the end of 2017, returning to Fiji in January 2018, and that when she returned to Fiji she had no fear in returning, based on the applicant’s movement record and the fact that she said on two separate occasions during the hearing that she had had no fear returning to Fiji at that time.
The Tribunal accepts that the applicant feels shame at falling pregnant to [Mr A] whilst formally married to another man, even though she considered herself separated at the time; that from mid-July she was a single mother of a child born out of wedlock as her and [Mr A] never married and stopped living together, that from January 2018 [Mr A]’s family knew of her then marital status to another man because [Mr A] told them; that [Mr A]’s mother had suggested that the son was not [Mr A]’s; and that this was triggering for the applicant because of what her father’s family had said about her mother and herself, based on the applicant’s evidence at the hearing.
The Tribunal finds that in Fiji the applicant had a successful career as [an occupation 1], based on the confirmation letter from [Employer 1] dated 20 June 2018 and the reference dated 22 June 2018 from the [senior occupation 1] at her last posting in Fiji. The Tribunal finds that as of 20 June 2018, the applicant was employed by [Employer 1] on contract from January 2018 to January 2023, based on the confirmation letter of that date.
The Tribunal finds that the applicant made the protection visa application to raise her son in an environment where he is free from accusations about his being born to a man other than the applicant’s then husband and in a land far from home, away from all the labels which people had begun to label the applicant with, as written in the protection visa application. The Tribunal finds that the applicant was looking for a space where she could nurture her son until the right time comes for her to tell him about her past, again as stated in the protection visa application. The Tribunal finds that the applicant had [Mr A]’s consent to bring the son to Australia in June 2018, but [Mr A] was expecting the son back and was furious when the son did not return to Fiji; [in] August 2018, the applicant travelled from Australia to [another country] without her son to have some time to think about lodging an application for a protection visa and she was thinking about her options as to whether to stay or return to Fiji and made a choice to get her son out of Fiji, based on the movement records and what the applicant said at the hearing.
By reason of the findings that the applicant made the protection visa application to raise her son in an environment where he is free from such accusations and labels against her and that the applicant was looking for a space where she could nurture her son until the right time comes for her to tell him about her past, the Tribunal finds that what the applicant was in fact seeking in travelling to Australia that final time was for herself to avoid feeling ashamed, for her son to not be emotionally hurt like she was with her paternal family’s claim she was not her father’s daughter and for her to discuss the situation about the son’s birth when she is ready.
The Tribunal rejects the applicant’s suggestion that she breached the law by not giving enough notice to [Employer 1] or that she was fined by [Employer 1], when she resigned a week or so prior to coming to Australia on 26 June 2018, because the applicant subsequently acknowledged she was not fined but just not paid for the remaining three week’s of her notice period and the applicant acknowledged she still received the glowing reference. The Tribunal rejects the applicant’s claim that there is a low probability of her getting back into [occupation 1] in Fiji and finds that if she returns to Fiji the applicant would be able to find employment in Fiji, because of the confirmation letter, the reference, the applicant’s acknowledgement during the hearing that she would be able to find another job with that type of reference, the applicant’s work history in Fiji, the applicant’s work history in Australia [doing occupation 1 work] in [Town 8] for three years and now as [another occupation], which the Tribunal accepts based on her oral evidence, and the applicant’s acknowledgement during the hearing that she had a good work history and her agreement with the Tribunal that [Employer 1] would welcome her back with open arms.
Claim of Physical Violence – against the applicant

In the protection visa application, the applicant wrote that upon her return to Fiji in January 2018 [Mr A] accused her of having changed and he became more jealous of her. The applicant wrote of an event where she attended a social group get together, where she returned home late the next day. She claimed that [Mr A] verbally abused her in front of her son and her grandparents with whom they lived. There was no mention of physical abuse.
The unsigned statement claims that [Mr A] physically assaulted the applicant twice, the first time being in 2015, when he slapped her after she had become angry with him for taking drugs and said she did not want to be with that kind of man. It also states the applicant was always afraid of him, and he became aggressive if she tried to talk about it with him and arguments made him lash out at her and that [Mr A] was abusive to the applicant. The abuse to the applicant was mostly verbal abuse from him and his family but there were also some occasions of physical harm to the applicant from [Mr A]. It also stated that it’s normal in Fijian society for the applicant as a woman to be hit by a man and the applicant wanted to move on because women in Fiji are always under control and at risk if they challenge that control.
During the hearing the applicant said that they argued over [Mr A]’s use of marijuana. [Mr A] threatened her but those arguments did not get physical. She said he said he would punch her, together with the gesture three or four times of putting his fingers on her forehead, with an open hand, pushing her head away. She would say ‘take your things and leave’. The first time occurred in 2014 and he left, and they separated for a while and then he promised he would not do that. The second time it happened, he did not leave.
At the hearing the applicant said that on one occasion [Mr A] got physical with her, punching her in the face with a closed fist after she had been out with her friends and returned late. This was after she returned to Fiji in early 2018 and it was at her grandparent’s place. [Mr A] was present because there was a get together, and the applicant and [Mr A] was staying in separate rooms. The applicant said that she was holding her son at the time, and that she cried and told him to get out of her house and she was going to call the police. The applicant also said during the hearing when the physical abuse happened to her, she had tried so hard not to repeat what had happened in the family, it was like a continuous cycle of violence.
Based on what the applicant said at the hearing, the Tribunal accepts that the applicant prepared her own protection visa application, with the advice of an aunt. When the Tribunal raised with the applicant that she had not mentioned that [Mr A] had been physically abusive in the protection visa application, the applicant provided no reason and said she could not comment on that but said she had included it in her later statement, which the Tribunal notes was unsigned and provided to the Tribunal on the Friday (2 February 2024) before the hearing on the Monday (5 February 2024) and that it had not been raised before that time.
In assessing the applicant’s claims, the Tribunal makes reference to the AIJA’s National Domestic and Family Violence Bench Book[13] (the AIJA Bench Book), which provides comprehensive guidance to the judiciary about domestic and family violence matters in Australia. In particular, the Tribunal understands that a victim’s experiences of and vulnerabilities to domestic and family violence may affect their willingness to disclose the violent behaviours, or other matters resulting from their relationship with the perpetrator, for example matters arising in relation to a protection order, a breach of a protection order, a parenting order, other legal remedies or proceedings, financial dealings, and immigration processes.[14]
[13] Australasian Institute of Judicial Administration, National Domestic and Family Violence Bench
[14] AIJA Bench Book Section 5.1 Impact on consent and disclosure.

100. The Tribunal has considered this matter carefully and is satisfied that that the applicant does not have a reasonable explanation why the claim and evidence as to physical abuse by [Mr A] was not raised or presented before the delegate’s decision was made, because the applicant prepared her own protection visa application, was prepared to refer to [Mr A]’s verbal abuse and other reasons for embarrassment in the protection visa application, was aware of the nature of domestic violence because of the lived experience of her parents and because the applicant had no comment or explanation when Tribunal raised the fact that the protection visa application did not mention physical abuse by [Mr A].
101. The Tribunal is therefore compelled by s 423A of the Act to draw an inference unfavourable to the credibility of the claim or the evidence which was before the Tribunal but not before the delegate regarding physical abuse by [Mr A]. The Tribunal finds the claim of physical abuse or control by [Mr A] to not be credible, because of this adverse inference and the fact that the applicant said during the hearing that she did not have any fear of returning to Fiji in January 2018, which is accepted by the Tribunal, despite the claims in the unsigned statement and the hearing that violence had previously occurred and that she was always afraid of [Mr A] and did not wish to be controlled.
102. In the unsigned statement, it was stated that the applicant also feared being dealt with in a traditional way as a married and not divorced woman and having a partner, by her clan after a meeting, and that her grandfather would take things into his own hands, plus her father and grandfather might have to face the consequences and be stripped of their titles. She did not know if she was going to be belted but she did not even wish to face the questions. The Tribunal notes that this statement was not signed by the applicant and any fear about being belted as a traditional punishment for having a son to a man who was not her husband was not raised by the applicant during the hearing, and the Tribunal rejects this as mere speculation.
103. The Tribunal is therefore not satisfied that there is a real chance that the applicant will be harmed in the reasonably foreseeable future if she returned to Fiji because of physical abuse, based on the finding that the applicant’s claim as to such abuse or attempts to control by [Mr A] is not credible and the claim as to traditional punishment is mere speculation.
Claim of Physical Violence – against the son
104. In the protection visa application, there is no mention of physical abuse by [Mr A] against the son and the Tribunal is again compelled to by s 423A of the Act to draw an inference unfavourable to the credibility of the claim or the evidence which was before the Tribunal but not before the delegate regarding physical abuse by [Mr A], as follows:
(a)In the unsigned statement, it was claimed that on several occasions, more than once or twice, [Mr A] was aggressive around their son, inflicting corporal punishment when the son was a year old. The applicant said she and [Mr A] disagreed about parenting methods;
(b)At the hearing, the applicant claimed that [Mr A] had physically abused the son, in his form of discipline. The applicant said that a couple of times, the applicant had thought [Mr A] was too violent the way he disciplined his own son. He would smack him badly, using his hands or a spoon on the hands, buttocks, or shoulders, or grabbing his collar with his hands. This happened when the son was a year old, which would have been in [Year]; and
(c)At the hearing, the applicant claimed her son was exhibiting behaviour consistent with being abused, being violent when he was 2, 3 or 4 years old and in that he cannot self-regulate, he will shout, scream and throw things. The Tribunal accepts what the applicant says the psychiatrists said about the son, being that he may have undiagnosed ADHD, and rejects the applicant’s statement that the son does not have undiagnosed ADHD and exhibits behaviour consistent with being abused because there is no evidence, medical or otherwise, in support of that assertion before the Tribunal.

105. The Tribunal notes that the applicant did not bring the son to Australia with her in December 2017 and that the applicant had no fears returning in January 2018. The Tribunal accepts that the son kept visiting his father and paternal grandparents after [Mr A] told his parents about the applicant’s marital status in January 2018, as stated in the protection visa application. The Tribunal finds that this adds to the finding that this claim is not credible.
106. The Tribunal is therefore not satisfied that there is a real chance that the son will be harmed in the reasonably foreseeable future if he returned to Fiji because of physical abuse by [Mr A], based on the finding that the applicant’s claim as to such abuse is not credible and so not accepted by the Tribunal.
Verbal Abuse and Bullying
107. The Tribunal accepts that [Mr A] verbally abused the applicant in front of her grandparents and the son in January 2018 when they were no longer a couple, after she returned home late for an evening out, as stated in her protection visa application. The Tribunal accepts that the applicant and [Mr A] argued over his use of marijuana and how to raise their son but also accepts that when the applicant did not return to Fiji with their son in June 2018, as [Mr A] expected, [Mr A] was furious, turning to the traditional route of having a family meeting to have the applicant and the son return to Fiji, but that [Mr A] was verbally abusive to the applicant when he drunk-called her about the fact that the son remained in Australia, as said by the applicant during the hearing.
108. The Tribunal also accepts that [Mr A] has an ongoing relationship with his son, not through the applicant, but through the applicant’s uncle, based on what the applicant said during the hearing. The Tribunal finds that [Mr A] has not been verbally abusive to his son, based on the evidence which is before the Tribunal.
109. The Tribunal is not satisfied that there is a real chance that the applicant and the son will be harmed in the reasonably foreseeable future if they returned to Fiji because of verbal abuse by [Mr A], because of the findings that the applicant and [Mr A] are no longer in a relationship, [Mr A] is another relationship, [Mr A] has not been verbally abusive to his son and the fact that the son will be in Fiji.
110. The Tribunal also accepts that [Mr A] told his family that the applicant fell pregnant to him whilst she was still married to another man, and that this history was being circulated among family and friends, as stated by the applicant in the protection visa application. The Tribunal acknowledges that the applicant feels she was being branded for her past mistakes and made to feel a laughingstock, not because she was a single mother of a child born out of wedlock, but because she had fallen pregnant to [Mr A] whilst formally married to another man, based on what is written in the protection visa application and the fact that the applicant had been a single mother from about July 2017 when her and [Mr A] stopped living together without incident up to January 2018 when the issues arose because [Mr A]’s family discovered the applicant was still formally married to another man.
111. It was in the protection visa application that the applicant claimed she was fearful that her and her son would be bullied and verbally abused over the fact that the son was born to a man not the applicant’s husband, affecting her psychologically, and that she was seen by her friends and family as weak, pathetic and a loser, causing her stress, depression, and feelings of helplessness. She claimed that both her and her son were at risk of long-lasting emotional problems, and she could imagine what would happen if either of them wished to take matters into their own hands. In the unsigned statement, it is claimed that the applicant discussed bullying in her protection visa application because she is worried that the bullying and shame that has been put on her due to the circumstances of her son’s birth, will be put on the son because of because of Fiji’s traditional and religious beliefs. The Tribunal accepts that the applicant and her son may suffer psychological distress but rejects as exaggeration and mere speculation what may happen to them if either of them wished to take matters into their own hands.
112. In the protection visa application, the applicant said people might manipulate the son to change the way he looks at her, that he might lose positive feelings for her as a single mother and that others might say things about the applicant which will affect her son’s relationship with her when he grows up. Further, [Mr A]’s family might use the son to carry hostile and self-destructive information on the weekend’s the son may spend with his father, and the fact that he was born whilst the applicant was married to another man may cause him to commit self-harm, die by suicide or become emotionally withdrawn or stay away from his peers. The Tribunal rejects this as exaggeration and mere speculation.
113. In the unsigned statement, it is claimed that the applicant is worried about her son becoming suicidal because the applicant can see what is happening with his father, his paternal family and herself and the trauma that will come to him from that. She does not wish to be disowned by her son for what she has done. Again, the Tribunal rejects this as exaggeration and mere speculation.
114. In the protection visa application, the applicant claimed that [Mr A] and her grandmother were working together to influence the applicant to marry [Mr A]. Based on what the applicant said at the hearing, the fact that her grandmother has now passed, and that [Mr A] is in another relationship, the Tribunal finds that the applicant will not be pressured to marry and will not marry [Mr A], despite the formal dissolution of her former marriage.
115. The Tribunal accepts that [Mr A]’s mother made a scene at the applicant’s workplace, as stated by the applicant during the hearing, but rejects the fact that such a scene would mean that the applicant would have lost her job or could not obtain a job as [an occupation 1], because the Tribunal finds that the applicant resigned and did not lose her job, based on what the applicant said during the hearing, and otherwise finds the suggestions that the applicant’s action in giving birth to her son was a breach of [an occupation 1]’s code of ethics or that [Mr A]’s mother’s actions would see her lose her job, especially in light of the reference given by the [senior occupation 1], to be incredulous.
116. The Tribunal finds on the evidence before it that the abuse and bullying, verbally and by social media, about the fact that the applicant had a child to a man who was not her husband are not a threat to the applicant’s or son’s life or liberty, significant physical harassment or ill-treatment of the applicant or threaten the applicant’s capacity to subsist (and therefore the son’s), because the Tribunal has not accepted the applicant’s claims of physical abuse and because of the finding that the applicant could find a job in Fiji and the finding that her ability to work in Fiji as [an occupation 1] is unaffected by the personal circumstances surrounding the birth of her son or the actions of [Mr A]’s mother.
117. Based on the above, the Tribunal has considered whether such verbal abuse, bullying, in person or by social media, and the stigma and shame because the son’s father was not the applicant’s husband at the time, as referred to by the applicant, because of its potential to cause psychological harm, amounted to serious harm. It finds that it does not because it is insufficient that the applicant would suffer shame, and feeling the disappointment of family and friends would not, with respect, rise to the level of serious mental harm such that the applicant and her son could not live in Fiji.[15]
[15] Revised Explanatory Memorandum to Migration Legislation Amendment Bill (No 6) 2001 (Cth), at [25].
118. On this basis, the Tribunal is not satisfied that the verbal abuse and bullying that the applicant fears rise to the level of serious harm to her or her son as required by s5J(4)(b) of the Act.
Losing her son
119. In the unsigned statement, it is claimed that on two occasions [Mr A] did not return their son to the applicant as agreed. Once for a week and the applicant went and got the son and the other time overnight, after which the sons weekend visits with [Mr A]’s family ceased, with the applicant requiring [Mr A] to visit her place to see his son, which the Tribunal accepts.
120. The applicant claims to be fearful that [Mr A] will take her son away from her permanently, and achieve this because he has family connections, because of her status as a mother who had a child to [Mr A] whilst married to another man and her claimed incapacity to work as [an Occupation 1]. In the unsigned statement, the applicant also claimed that [Mr A]’s mother threatened to take the son away from the applicant because she was married. The Tribunal finds that [Mr A] and his family did not take the son away from the applicant between January 2018, when [Mr A] told his family, and June 2018, when the applicant and the son travelled to Australia, the son with [Mr A]’s permission.
121. In the unsigned statement, it is claimed that as [Mr A]’s father is an influential person, being the [occupation 2] head of [an agency] on [Town 6], Vanua Levu and [Mr A]’s stepfather is in the army, with connections to [the former Prime Minister] Bainimarama, the applicant will probably lose her job and if that happened, she would also lose her son to [Mr A]’s family.
122. During the hearing, the applicant claimed that [Mr A]’s family had military connections with the former Prime Minister, and so the applicant was afraid [Mr A] would be granted custody of their son, however the applicant subsequently acknowledged that as at December 2022, that Prime Minister had lost the election, in line with the country information above which the Tribunal accepts, and that any connection [Mr A]’s family has with him would not be a threat to the applicant.
123. The Tribunal further rejects that the applicant would lose her job or access to her son because of [Mr A]’s father’s job on Vanua Levu or the grandfather’s connection to the former Prime Minister, because of the previous findings in relation to her ability to find work if she returns to Fiji, the country information above which is accepted, and the applicant’s acknowledgement during the hearing that any connection [Mr A]’s family had to the former Prime Minister would not be a threat to her.
124. The Tribunal is not satisfied that there is a real chance the applicant would lose her job or access to her son, because of the findings that [Mr A]’s family did not take her son away from her between January 2018 and June 2018 and its rejection of the claim the applicant would lose her job or access to her son because of [Mr A]’s father’s job or the grandfather’s connection to the former Prime Minister.
125. The Tribunal accepts, as the applicant said during the hearing, that in Fiji she could keep her son away from [Mr A] for a while but not forever, because the applicant’s family in adhering to tradition would allow for [Mr A] to have contact with his son, but rejects the applicant’s assertion that her family would allow her son to be taken away from her because she fears not being able to get a job on her return to Fiji or be able to support the two of them, because of the Tribunal’s previous findings on the applicant’s ability to find work on returning to Fiji.

126. The Tribunal on this basis is not satisfied that if the applicant and her son return to Fiji there is a real risk of harm to the applicant or her son, by the applicant losing access to her son in the reasonably foreseeable future.
Conclusion
127. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
COMPLEMENTARY PROTECTION

Having concluded that the applicants do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).

129. The Tribunal finds that there are not substantial grounds for believing that there is a real risk the applicants would suffer significant harm as a necessary and foreseeable consequence of being removed to Fiji. This is because the Tribunal found that the applicants do not face a real chance of serious harm, and so the Tribunal also finds the applicants do not face a real risk of significant harm (as per MIAC v SZQRB (2013) 210 FCR 505).
130. The Tribunal also notes that to give rise to a real risk of significant harm under the complementary protection assessment, the applicant (or the son) would have to be arbitrarily deprived of their life, be subjected to the death penalty, torture, cruel or inhuman treatment or punishment, or degrading treatment of punishment. On the evidence as analysed by the Tribunal above, the applicant and the son may face stigma and shame because the son was born to a father who was not the applicant’s husband at the time, but the Tribunal finds this does not rise to the level of significant harm and so the applicants have not made out their case to the relevant standard.
131. Noting the findings which the Tribunal has already detailed relating to the applicants’ claims, it follows that the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Fiji, there is a real risk that they will suffer significant harm now or in the reasonably foreseeable future.
132. Accordingly, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).
FAMILY UNIT

For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa.
DECISION

134. The Tribunal affirms the decision not to grant the applicants protection visas.
Rebecca Lee
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

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

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

Book, last updated June 2023,

[2024] AATA 3882

28 June 2024

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