1928762 (Refugee) - [2024] AATA 2176

1928762 (Refugee) [2024] AATA 2176 (21 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Anthony (Tony) Silva (MARN: 9901579)
CASE NUMBER: 1928762

COUNTRY OF REFERENCE: Fiji
MEMBER:Clyde Cosentino
DATE:21 May 2024
PLACE OF DECISION: Brisbane
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 21 May 2024 at 3:41pm
CATCHWORDS
REFUGEE – protection visa – Fiji – particular social group – homosexual – physical assault – child sexual abuse – gay and lesbian rights marches – workplace discrimination – state protection – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 423, 424, 499
Migration Regulations 1994, Schedule 2
CASES
EQU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 609
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 September 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Fiji, applied for the visa on 17 August 2018. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) and does not satisfy any of the other criteria in s 36(2) of the Act.
The applicant appeared before the Tribunal on 22 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
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 issue in this case is whether the applicant is 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. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Country of nationality
The applicant provided a copy of the biodata page of his Fijian passport as part of his protection visa application. The delegate accepted that the applicant is a citizen of Fiji and there is no information before the Tribunal to the contrary. The Tribunal finds that the applicant is a citizen of Fiji, and that Fiji is his receiving country for the purposes of assessing his claims for protection.
Findings and Reasons
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:
…care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.
A decision-maker’s rejection of some evidence, material or peripheral, relating to past or present facts, should not necessarily lead to the rejection of all the claimant’s evidence; International Association of Refugee Law Judges Assessment of Credibility in Refugee and Subsidiary Protection Claims Under the EU Qualification Directive – Judicial Criteria and Standards (March 2013) (“IARLJ report”) at [A.18].
The Tribunal also accepts that ‘if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status (UNHCR Handbook), Geneva, 1992 at para 196). However, the UNHCR Handbook also states (at para 203):
The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible and must not run counter to generally known facts.
On assessing claims of sexual identity, the UNHCR Guidelines on International Protection No.9 notes that:
Ascertaining the applicant’s LGBTI background is essentially an issue of credibility. The assessment of credibility in such cases needs to be undertaken in an individualized and sensitive way. Exploring elements around the applicant’s personal perceptions, feelings and experiences of difference, stigma and shame are usually more likely to help the decision maker ascertain the applicant’s sexual orientation or gender identity, rather than a focus on sexual practices.[1]
[1] UNHCR, “Claims to Refugee Status based on Sexual Orientation and/or Gender Identity within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees”, 23 October 2012; see: <
The UNHCR Guidelines on sexual orientation and gender identity indicate that LGBTQI individuals frequently keep aspects and sometimes large parts of their lives secret, and many suppress their sexual orientation and/or gender identity to avoid the severe consequences of discovery, including the risk of incurring harsh criminal penalties, arbitrary house raids, discrimination, societal disapproval, or family exclusion. That an applicant may be able to avoid persecution by concealing or by being ‘discreet’ about his or her sexual orientation or gender identity, or has done so previously, was not a valid reason to deny refugee status. Being compelled to conceal one’s sexual orientation and/or gender identity may also result in significant psychological and other harms.
Fear of persecution for reason of his sexual orientation as an LGBTIQ+ Fijian or homosexual man living in Fiji
The Tribunal notes that the delegate refused to grant the applicant a protection visa on 23 September 2019, based on the original claims made by the applicant which were later resiled by the applicant at the start of the review process.
The Tribunal notes that the applicant submitted at the early stages of the Tribunal review process a detailed Commonwealth Statutory Declaration (statutory declaration) dated 13 October 2020 outlining new claims and providing a chronological history of harm and discrimination suffered by him for reason of his homosexuality in Fiji. The applicant outlined in his 72 paragraphs of that statutory declaration the serious harm he suffered for reason of being a homosexual man in Fiji. The Tribunal has read and considered his new claims made in his statutory declaration.
The Tribunal notes, and has considered, his written explanation in his statutory declaration dated 13 October 2019 that he did not understand English at the time and relied on a Fijian person who he considered was experienced in putting together protection visa applications. He states that this person advised him not to put his claims of persecution for reason of his of homosexuality in the protection visa application and that he trusted the advice of this person. The applicant states that he emphasised to this person that it was important to claim that he was gay but deferred to the person who he trusted to help him complete the protection visa application.
The Tribunal notes, and has considered, the applicant’s statutory declaration dated 8 February 2024 outlining his gay relationship in Australia to [Mr A] (surname provided in the statutory declaration) along with other gay relationships he had in Australia.
The Tribunal notes, and has considered, the text messages provided by the applicant claimed to be text messages between the applicant and [Mr A].
The Tribunal has considered the legal submissions dated 9 February 2024 and the country information provided by the applicant’s legal representative in support of the applicant’s new claims.
The Tribunal is mindful of s 423A of the Act which provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence. If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made, or evidence not presented before the primary decision was made.
In EQU19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 609, Her Honour Judge Given, in relation to what is a “reasonable explanation” observed the following:
Unlike sections such as s 424AA, s423A does not impose on the Tribunal a method by which it is to obtain the explanation, nor prescribe any preconditions to its operation (see for example s 424AA(1)(b)).
The Tribunal is mindful of the following guidelines from the Administrative Appeals Tribunal: Migration and Refugee Division: Guidelines on the Assessment of Credibility:
[Para: 24]. All claims, particularly those of a sensitive nature should be carefully considered in a respectful and culturally sensitive way. Claims relating to a person’s sexual orientation or to sexual assault or domestic violence, require particularly sensitive investigation.
… … …
[Par: 25] The Tribunal should be mindful that an applicant may find it particularly difficult or embarrassing to discuss claims [in] relation to his or her sexual orientation.
The Tribunal raised with the applicant its concerns about the late disclosure of the claims relating to his sexuality, though it was mindful that it had been raised at the early stages of the Tribunal review process. It explained that, because of the timing of the disclosure of these claims, the Tribunal was required to consider whether he had a reasonable explanation for not raising these claims with the delegate. If the Tribunal was not satisfied that he had a reasonable explanation, it would be required to draw an unfavourable inference about the credibility of those claims. The applicant responded that he wanted to resile on the claims he made in his original application and that the new claims that he had made relating to his homosexuality were the only claims that he wished to discuss at the hearing and were always the claims that he wanted to be included in his application. He stated that he sought help from a respected person in the Fijian community in Australia. The applicant did not understand the complex English questions in the protection visa application, given his limited ability to understand English. This is why he sought assistance from this person who could read English in the form and to have it completed on his behalf. He stated that he had advised this person that he wanted to claim that he was gay and that he could not return to Fiji because of the beatings and the serious harm that he had suffered as a result of his sexual orientation. He stated that this person did not want to write this in the protection visa application. This person advised the applicant that he would be ridiculed if he made claims he was a gay man, because this was against the teachings of Christianity. The applicant stated that this person was respected in the Fijian community and the applicant felt he had little choice but to trust him as the applicant did not know anything about the protection visa application process. The applicant stated that it was only after he had been refused a protection visa that he realised he needed to obtain legal assistance to help him at the review stage. He sought legal representation soon after the delegate refused his protection visa application.
In accordance with s423A of the Act, the Tribunal has considered the applicant’s explanation for the late disclosure of the claims and evidence relating to his sexuality. It accepts that he had limited English language ability at the time of preparing his protection visa application. It accepts that he had little understanding of the protection visa process and that he relied solely on a trusted person of the Fijian community to assist him with the application. In these circumstances, the Tribunal finds it plausible that he relied on assistance from a person from the Fijian community as claimed and did not feel comfortable in going against his advice, particularly when he was told that he would be ridiculed and not believed if he did make these claims. Given his past traumatic experience from his community and family back in Fiji, the Tribunal accepts the applicant’s evidence that he was extremely reluctant to go against this person’s advice. The Tribunal is, therefore, satisfied that the applicant has provided a reasonable explanation for not raising these new claims and evidence with the delegate and have therefore not drawn an unfavourable inference regarding their credibility.
Given the applicants new claims and given that the applicant has resiled his original claims throughout the review process and unequivocally at the hearing, the Tribunal has considered and makes findings only on his claims that he fears he will suffer serious harm for reason of his sexual orientation as a homosexual man living in Fiji.
The applicant outlined in his statutory declaration dated 13 October 2020 the serious harm he suffered back in Fiji. His written evidence highlights the following harm he suffered in Fiji for reasons of his sexual orientation:
a.Sexual abuse from his cousin, [named], in 1991
b.Sexual abuse from a second cousin in 1994
c.Sexual abuse from a married man, [named], in 1995
d.Discrimination at boarding school in 1997
e.Sexual abuse from a classmate in 1998
f.Sexual abuse by a villager in 1999
g.Physical abuse by his father after finding out about his sexual orientation in 1999
h.Discrimination at home by his family commencing in 2000
i.Attempted suicide in 2001
j.Joined the LGBTI+ community in 2016 and undertook gay and lesbian rights marches in Suva.
k.Commenced living with his gay partner [named] in 2017
l.Participated in a gay rights march in Suva in 2018
m.Commenced another gay relationship in 2018 with a man called [Mr B]
n.Beaten by his father’s brother in Suva for his same sex relationship with [Mr B] in 2018
o.Discrimination in the workplace because of his sexual orientation
The applicant outlined in his further statutory declaration dated 8 February 2024 his various same sex relationships in Australia including a two year long same sex relationship with a man called [Mr A]. This relationship is now at an end. He also stated about his brief sexual encounters with other males in Australia including getting in touch with partners on [a named app], though no other evidence was provided to support this.

At the hearing the Tribunal had the benefit of enquiring with the applicant about the different events that occurred in his life both in Fiji and in Australia relating to his sexual orientation as a gay male. The Tribunal was able to refer to the numerous events in both statutory declarations and consider the responses from the applicant throughout the entire hearing. The applicant recalled the events without hesitation and gave evidence of harm suffered over many years as a result of his homosexuality, both from his family and his community. The applicant recalled how these events over many years of his life has left a devasting impact on him which resulted in him finally leaving Fiji to come to Australia to be able to practice more openly as a homosexual man. The applicant provided evidence that he tried to conceal his relationships as much as possible given the taboo nature of being a homosexual man in a conservative Christian country. He spoke about his pain of having to endure suffering at the hands of family members and being ridiculed and harassed by his community and by work colleagues because of his sexual orientation.
The Tribunal found the applicant’s evidence, as provided at the hearing, to be overall credible. He provided detailed and persuasive evidence in a spontaneous and natural manner. The Tribunal is satisfied that he was recalling details and events based on his personal experience. The applicant provided evidence consistent with his statutory declarations. His evidence regarding his experiences in Fiji is also broadly consistent with independent country information as detailed below.
Having considered all the evidence before it, the Tribunal accepts the applicant’s claimed personal background, including the details of what occurred to him by his family members, community and work colleagues in Fiji. The Tribunal accepts that the applicant is a homosexual male and has been in sexual relationships with males since his youth. The Tribunal accepts that he was sexually abused as a child by two male cousins, and a married man in his village which brought him to the point of suicide. The Tribunal finds that he provided a credible account of his experiences with men in Fiji, including at boarding school and later as an adult in Suva. The Tribunal accepts that this has led to his immediate family, extended family members and people in his community becoming aware of his sexual orientation to men causing great difficulties, and in some cases estrangement, in his relationships with his family members. The Tribunal accepts that he sought to conceal his homosexual activity in Fiji due to a fear of harm and that part of his reasons for travelling to Australia was to live openly as a homosexual man. This accords with information from DFAT that in Fiji there is discrimination against LGBTIQ+ issues and many members of the LGBTIQ+ community reportedly hide their identity to avoid harassment, familial ostracism, and/or violence.
The Tribunal accepts that the applicant has been in several relationships in Australia with men, some whom he has met on [the app]. While the applicant has not provided any supporting evidence of these relationships, the Tribunal accepts that this would be difficult given the casual nature of those relationships. Given the Tribunal’s overall credibility finding, the Tribunal extends the benefit of the doubt to these claims.
Country information relating to the treatment of members of the LGBTQI+ community and homosexual men in Fiji
The applicant claims to fear harm in Fiji for reasons of his sexual orientation as a member of the LGBTIQ+ community or as a homosexual man in Fiji.
The 2022 Fiji Human Rights Report states:
Acts of Violence, Criminalization, and Other Abuses Based on Sexual Orientation, Gender Identity or Expression, or Sex Characteristics
Criminalization: No laws criminalize consensual same-sex sexual conduct between adults.
Violence against LGBTQI+ Persons: NGOs reported violence against members of the lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQI+) community was common, and that strong and widespread social stigma contributed to a lack of trust in police and discouraged victims from reporting crimes to authorities due to fear of further violence or harassment. Reports indicated transgender women continued to face extremely high rates of sexual and gender based violence, including routine harassment and targeting by police.
Discrimination: The constitution prohibits discrimination on the grounds of sexual orientation, gender, and gender identity and expression. The law prohibits discrimination in employment based on sexual orientation. Nevertheless, NGOs reported complaints of discrimination against LGBTQI+ persons in employment, housing, access to health care, and other fields. Research by the NGO Diverse Voices and Action for Equality (DIVA) found that a majority of lesbian and bisexual women, and of transgender persons, lived in poverty due to unemployment. According to DIVA, approximately 62 percent of this group were unemployed or involved in precarious casual work.
Availability of Legal Gender Recognition: Legal gender recognition was not available. The lack of identification that aligned with their gender expression created significant problems for some persons in employment, education, housing, and other aspects of daily life.
Involuntary or Coercive Medical or Psychological Practices Specifically Targeting LGBTQI+ Individuals: There were no known reports of involuntary or coercive medical or psychological practices on LGBTQI+ persons. Although the country does not have a law banning so-called conversion therapy, health-care professionals are prohibited from attempting to change a person’s sexual orientation. There were no known cases of enforcement action.
Restrictions of Freedom of Expression, Association, or Peaceful Assembly: There were no known reports of restrictions on those speaking out concerning LGBTQI+ topics, although cyber bullying and hate speech against transgender individuals increased.[2]
[2] 2022 Country Reports on Human Rights Practices: Fiji, Bureau of Democracy, Human Rights, and Labor, U.S Department of State,
The Department of Foreign Affairs and Trade (DFAT) report for Fiji states:
Sexual orientation and gender identity
3.58 Fiji is one of the few countries to have constitutional protections against LGBTI discrimination. Gay sex was decriminalised in 2010. Same-sex marriage is not legal in Fiji, however same-sex couples can and do live in Fiji.
3.59 There are a few LGBTI NGOs operating in Suva that may cover issues regionally for other Pacific countries. DFAT understands that they are relatively effective in raising awareness of LGBTI issues and dealing with authorities. However, in-country sources told DFAT that this needs to be understood in the context of overall low visibility of LGBTI people and LGBTI issues; LGBTI issues are rarely spoken of and raising awareness is a difficult task.
There are few research studies of LGBTI issues in Fiji and it is difficult to observe or analyse patterns of discrimination and violence against LGBTI people.
3.60 Gay men and lesbians often do not come out to their families and are often not accepted when they do. This can cause significant problems because of the traditional role that families take in welfare during times of sickness or unemployment. LGBTI people may find more acceptance in Suva, particularly in wealthier circles. According to sources, societal belief in the efficacy of ‘corrective rape’ of lesbians remains prevalent in the indigenous Fijian community, although DFAT has no way of assessing or verifying the prevalence of such practices.
3.61 Twenty-one-year-old gay man, Iosefo Qionitoga Magnus was murdered in 2017 with no arrests made. A transgender woman, 23-year-old Akuila Salavuki, was found dead in a pool of blood in May 2018. Her accused murderer was acquitted. In-country sources told DFAT that when anti-LGBTI violence occurs it is more likely to be targeted than random, but that anti-LGBTI violence may be underreported which obscures any understanding of the prevalence of anti-LGBTI violence. Media articles about violence may not disclose that the violence was an anti-gay hate crime, for example.
3.62 In-country sources told DFAT that LGBTI individuals can experience societal discrimination when accessing goods and services. LGBTI issues are not discussed generally in Fijian society, and little data other than anecdotal reports exists to demonstrate that discrimination.
3.63 The tourism industry provides employment opportunities for LGBTI people, according to in-country sources. The tourism industry is highly international by its nature and is more inclusive of LGBTI people. It also provides an opportunity for people to work away from their families, who may have rejected them.
3.64 Transgender people report high levels of discrimination and abuse. Police promised to review claims of abuse directed towards transgender people on the Transgender Day of Remembrance (an international day to remember victims of anti-transgender violence) in 2018. Some transgender women are seen and may even be accepted as ‘entertainers’ but may find it difficult to find mainstream employment.
3.65 Overall, DFAT assesses that LGBTI Fijians are at a moderate risk of official and societal discrimination and a moderate risk of violence. Because of homophobia and transphobia, many LGBTI people may hide their identity. Taboos against reporting violence against LGBTI people also exist, which may make patterns difficult to identify.[3]
[3] Australian Government Department of Foreign Affairs and Trade, DFAT Country Information Report Fiji, 20 May 2022, country-information-report-fiji.pdf (dfat.gov.au).
Refugee Criterion Assessment
Having considered the country information before it, the Tribunal accepts that Fijian society is generally conservative in its views about homosexuality and that societal discrimination exists against homosexual men. The Tribunal notes in this information that in recent years, certain measures have been put into place legislatively and constitutionally, to provide protection for Fiji’s LGBTIQ+ community. Regardless of these constitutional and legislative changes, given the applicant’s severe abuse and discrimination at the hands of his family, extended family, community, work place and society in general the Tribunal places significant weight on DFAT’s overall assessment “that [LGBTIQ+] Fijians are at a moderate risk of official and societal discrimination and a moderate risk of violence”, placing the applicant directly in the way of suffering serious harm for reason of his homosexual lifestyle and orientation. The Tribunal finds, from the country information and the Tribunal’s acceptance of events that have transpired during the course of many years in the applicant’s life as a result of his homosexual orientation, that there is a real, as opposed to remote or far-fetched, chance of the harm occurring. Based on the country information outlined above, the Tribunal finds that the applicant would face a real chance of such harm in all areas of Fiji.
The Tribunal finds that the applicant fears persecution for reasons of his membership of the particular social group, namely LGBTIQ+ Fijians or homosexual men in Fiji. The Tribunal finds this group to satisfy the definition in s 5L as the characteristic of sexual orientation is shared by each member of the group, including the applicant, and is not a fear of persecution, and the characteristic is so fundamental to the applicant’s identity that he should not be forced to renounce it. The Tribunal finds this to be the essential and significant reason for the persecution, as required by s 5J(4)(a) and that the persecution involves systematic and discriminatory conduct, as required by s5J(4)(c), as it is targeted toward members of the group and is non-random. The Tribunal finds the persecution to involve serious harm, as required by s 5J(4)(b), as the harm includes a threat to the applicant’s liberty and significant physical harassment or ill-treatment.
The Tribunal finds that effective protection measures, as defined in s 5LA, would not be available to the applicant given the applicant’s own specific experiences in Fiji and country information available which reports that LGBTIQ+ Fijians face a moderate risk of official discrimination.[4] Violence against LGBTIQ+ Fijians in Fiji is underreported and police protection is not always available.[5] LGBTIQ+ Fijians are often discouraged from reporting crimes to the authorities for fear of further violence or harassment.[6] LGBTIQ+ Fijians have been subject to discrimination and punitive treatment by Fijian police.[7]
[4] 'DFAT Country Information Report Fiji', Department of Foreign Affairs and Trade, 20 May 2022, p.19
[5] 'DFAT Country Information Report Fiji', Department of Foreign Affairs and Trade, 20 May 2022, p.19
[6] 'Country Reports on Human Rights Practices for 2022 - Fiji', US Department of State, 20 March 2023, p.20
[7] Sexual and reproductive health and gender-based violence in Fiji: A review of policy and legislation', Rowe, J, Sullivan, C and Vaughan, C, United Nations Population Fund (UNFPA) and the University of Melbourne, 26 October 2022
The Tribunal finds that the applicant could not take reasonable steps to modify his behaviour to avoid a real chance of persecution. Such modifications would fall within various exceptions in s 5J(3), including conflicting with a characteristic that is fundamental to a person’s identity or conscience.
For the above reasons, the Tribunal finds the applicant has a well-founded fear of persecution and is a refugee within the meaning of s 5H(1) of the Act.
CONCLUSION
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Clyde Cosentino
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.
…