1932093 (Refugee)

1932093 (Refugee) [2024] AATA 3677 (5 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1932093

CASE NUMBER:  1932094
COUNTRY OF REFERENCE:                   Fiji
MEMBER:James Silva
DATE:5 July 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the matters for reconsideration with the direction that:
· the first-named applicant satisfies s.36(2)(a) of the Migration Act; and
· the second- and third-named applicants satisfy s.36(2)(b)(i) of the Migration Act.

Statement made on 05 July 2024 at 3:24pm
CATCHWORDS
REFUGEE – protection visa – Fiji – written claims on political grounds and fear of harm by police and military abandoned after change of government – husband originally a joint applicant – relationship ceased, applications for review separated, and wife/mother’s and children’s reviews heard together – new claims of domestic violence by husband, and fear of harm by husband and family members – coercive behaviour, verbal and physical abuse, and rape – attempts to shelter with family and friend and no action by police in home country – police intervention in Australia and breaches of ADVO – no adverse inference for late claim – claims and evidence sometimes piecemeal, exaggerated and unsubstantiated but generally consistent and credible, with significant supporting evidence – husband’s imprisonment after unrelated charge leaves evidentiary gap – husband’s family members’ statements about applicant’s behaviour do not amount to threats – husband’s standing in local community and necessity for ongoing contact – children as members of family unit – Australian-born child not an applicant – country information – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5H(1), 5J(1), (2), (4), (5), 5LA(1), (2)(a), (b)(i), 65, 438(1)(a), 423A, 424A
Migration Regulations 1994 (Cth), r 1.12, Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB (2013) 210 FCR 505
Randhawa v MILGEA (1994) 52 FCR 437
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

The first-named applicant (‘the applicant’) is a woman in her mid-[Decade] from Fiji. The second- and third-named applicants (‘the child applicants’) and her two Fiji-born children, a girl born in [Year] and a boy born in [Year].
The applicant arrived in Australia [in] February 2018, as the holder of a visitor (subclass 600) visa. On 23 May 2018, she applied for a protection (class XA) visa, together with her husband. On 25 October 2019, a delegate of the Minister for Home Affairs (the delegate) refused the application pursuant to s.65 of the Migration Act 1958 (the Act). This is an application for review of that decision, in relation to the first-named applicant.
The child applicants arrived in Australia [in] February 2019, and applied for protection visas on 10 May 2019. On 25 October 2019, the Minister’s delegate refused to grant the child applicants protection visas (the same day as the decision relating to the main applicant). They also sought review of that decision.
For the reasons set out below, the Tribunal has concluded that the decisions under review should be remitted for reconsideration.
CRITERIA FOR A PROTECTION VISA
The issue in this case is whether one or more of the applicants meets the refugee criterion, and if not, whether they are entitled to complementary protection.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The most recent DFAT country information report on Fiji[1] was published in May 2022, prior to the national elections in December 2022 which saw a change in government, with the (former opposition) People’s Alliance under Prime Minister Sitiveni Rabuka leading a three-party coalition. The Tribunal therefore also drew on more recent country information relating to Fiji politics, and reports on domestic violence from a range of sources.
[1] DFAT Country Information Report – Fiji, 20 May 2022
An excerpt of the relevant law is at Attachment A.
Procedural matters
The applicant lodged a combined protection visa application with her husband [Mr A]; each completed Form 866C as applicants who had their own protection claims. The delegate’s decision record addressed only the applicant’s claims, and found that, as she did not meet s.36(2)(a) or (aa), [Mr A] did not meet the requirements for the visa grant as a member of the same family unit. (This was evidently an oversight in relation to [Mr A]’s claims, but one with no relevance to his application).
On 12 November 2019, the applicant and [Mr A] lodged the application for review of the visa refusal decision, providing an email address associated with [Mr A] ([email address]) as the address for correspondence. On 12 April 2022, the applicant wrote to the Tribunal advising that the relationship had broken down, and that she wanted her review applicant to be dealt with separately. She submitted the first page of a six-page provisional apprehended domestic violence order (ADVO) addressed to [Mr A], requiring him to attend court on 16 August 2021. She wrote this from an email address provided in Form 866C.
The Tribunal wrote separately to the applicant and [Mr A] on 1 December 2023, seeking advice on the relationship status and advising that it may proceed with separate applications for review. Neither replied. The Tribunal proceeded to separate the review applications. Subsequent information, from the applicant at hearing and the copies of the Department interviews, confirmed that they are no longer in a relationship.
The child applicants’ application for review nominated the third-named applicant (aged just [Age] years old at the time) as the addressee for correspondence, and [Mr A]’s email address. Following correspondence regarding the parents’ applications for review, it became apparent that the first-named applicant would act as their guardian for the purpose of this review.
On 4 January 2024, the Tribunal invited the applicant mother and the applicant children to separate hearings, to be held back-to-back on 30 January 2024, flagging that they may also wish to have the hearings combined. On 29 January 2024, the Tribunal received advice that senior solicitor [Ms B], from [Organisation], would represent the first-named applicant in this review. The covering email indicated that she would appear on behalf of all the applicants. At hearing on 30 January 2024, the first-named applicant and [Ms B] agreed that both applications for review should be addressed in a combined hearing, and in a single decision record.
CLAIMS AND EVIDENCE
Protection claims
The applicant initially claimed to fear harm in Fiji, as a result of the general political instability and lack of democracy, and the government’s objection to her having sought protection in Australia. In their protection visa application, the children did not articulate any protection claims, but merely referred to their parents’ protection visa application (file number and visa grant number). The first-named applicant resiled from these claims during the course of this review.
The applicant presented new claims that she has been subject to domestic violence in Fiji and Australia, at the hands of her husband, from whom she separated in 2021. She claims to fear that, if she returns to Fiji, [Mr A] may assault her, as he has done in the past, or kill her. She also claims to fear that members of [Mr A]’s family who blame her for his criminal conviction in Australia, will hurt her.
The applicant presented claims on behalf of the child applicants, namely that [Mr A]’s violence towards her will result in them suffering ‘serious psychological harm’.
Background
The applicant is a [Age] year old woman from [Town], Fiji. She is of Fijian ethnicity, and a speaker of English and Fijian.
She attended primary and secondary school in [Town], up to [Year] (aged 18). She later completed [courses] at [University] in August and September 2013.
The applicant worked as [an occupation 1] for a [company] in [Town], from 2010 to late 2012. Following the birth of the second-named applicant, she worked as [an occupation 2] at a [workplace] (February to September 2013), and later as [an occupation 1] (September 2013 to December 2014).
§ The applicant married [Mr A] on [Date]. Relevantly to her claims, she described him as a ‘senior pastor’ in her statement of 29 January 2014, yet the submission of 4 March 2024 states that was as a regular pastor (paragraph 2.1.(d)).
§ After their marriage in 2012 to late 2014, the applicant and [Mr A] stayed with relatives in [Town] (the applicant’s parents, and [Mr A]’s sister). From late 2014 to February 2018, they lived in their own home in [Town]. In Australia, they initially stayed with the applicant’s uncle in [Suburb 1], and later in [Suburbs 2 and 3].
§ Following their separation in August 2021, the applicant lived with her sister in [Suburb 4] (August 2021 to March 2022); then in [Location] NSW (March to June 2022); and from then in [Town] NSW.
The applicant’s widowed mother lives in [Town]. Her father was a senior pastor in a church where [Mr A] served. The applicant is the [birth order] of six siblings, who live in Fiji and Australia. Two brothers currently live in Fiji; the applicant said that the older one is ‘stuck there’ due to visa issues, while his wife remains in Sydney. Another lives in Sydney with his wife. One sister is in Fiji, and the other ([Ms C], who gave evidence at hearing) is in Sydney.
The applicant holds a Fiji passport issued [in] 2017, valid for ten years. She entered Australia [in] February 2018.
The applicant children were both born in Fiji, the second-named applicant in [Year] and the third-named applicant in [Year]. They arrived in Australia [in] January 2019; the applicant told the Tribunal that her mother accompanied them on the flight.
Evidence
The evidence before the Tribunal includes the following relevant material from the Department file for the applicant parents:
§ The protection visa application forms, including completed Forms 866C for both the applicant and [Mr A]. The applicant set out her protection claims in brief handwritten responses to questions 75-80 on Form 866C.
§ Identity documents:
- The applicant’s Fiji passport, issued [in] 2017 and valid [to] 2027; and her birth certificate. (There were corresponding documents for [Mr A].)
§ There was no Department interview in this matter. The delegate referred to correspondence on 30 May 2018 alerting the applicant parents as to how they could submit additional material. There had been no submissions as of 25 October 2019.
§ The protection visa decision record (‘delegate’s decision’) of 25 October 2019, relating to both the applicant and [Mr A] (although this incorrectly stated he did not present protection claims of his own). The applicant provided a copy of the decision to the Tribunal.
The Tribunal also has the Department file for the applicant children, which includes:
§ The completed protection visa application forms. These do not record any specific protection claims, but refer to: (a) the Department file number with the parents’ protection visa application, and (b) the mother’s Bridging A visa grant number.
§ Identity documents: for both applicant children, Fiji passports issued [in] 2018, valid for ten years.
§ There was no Department interview in relation to the children’s applications. There had been an initial request to attend an interview (for the parent(s), on behalf of the children), but this was withdrawn and written submissions were invited. None were forthcoming.
§ The protection visa decision record (‘delegate’s decision’) of 25 October 2019.
During the course of the review, the Tribunal received a significant amount of additional material:
§ Statement from the applicant dated 18 January 2024 with additional claims and information, including biographical data that had not be provided in the original application.
§ Additional statement and background information, dated 29 January 2024.
§ Representative’s submission dated 4 March 2024.
§ Further statement dated 6 March 2024 (including comments/response to the Tribunal’s s.424A letter).
§ Supporting documents relevant to domestic violence claims:
   Orders placed for smartphones, on 2 March 2021, 27 November 2021 and 20 December 2021.
   Apprehended domestic violence orders: (a) provisional order against [Mr A], dated 4 August 2021 (first page only); (b) final order dated 16 August 2021.
   Screenshots and translation of [Social media] messages between a [Ms D] and a third party, undated.
   Copies of two NSW Police Event Reports, dated 9 May 2021 and 4 August 2021, heavily redacted; and associated correspondence from the NSW Police dated 28 February 2024 explaining the reasons for limited disclosure of the information contained in the event reports.
   Undated photograph showing a bruised arm, characterised by the applicant as the result of [Mr A]’s assault in August 2021.
§ Photographs of the child applicants at various events in [Town].
The applicant appeared before the Tribunal on 30 January and 14 February 2024, to give evidence and present arguments, on behalf of all the applicants. The hearing was conducted with the assistance of an interpreter in the Fijian and English languages. The applicants’ representative [Ms B] attended both hearing sessions. The Tribunal took evidence from the applicant’s witness, her sister [Ms C].
On 22 February 2024, the Tribunal wrote to the applicants under s.424A, inviting comments/response to potentially adverse information, namely [Mr A]’s recorded statements about the applicant children, made while seeking revocation of his bridging visa cancellation. As noted above, the applicant provided comments/responses (4 March 2024), and the representative made a further submission (6 March 2024).
Non-disclosure certificate
On 20 December 2023, the Department issued a notification under s.438(1)(a), stating that the disclosure of certain documents was contrary to the public interest. The stated reason was ‘the document contains a level of information, relating to risk management (i.e. operational measures undertaken by the Department or other government department), including information of a confidential nature regarding department systems and procedures, including information that should not be common or public knowledge, where the release of such information would impact the effective operation of the Department’.
The Tribunal alerted the applicant and the representative to the existence of the non-disclosure certificate, the documents referred to and the broad gist of the information. It noted that they did not contain material directly relevant to this review. The applicant and representative acknowledged this, but did not comment on the validity of the certificate or its contents.
Receiving country
The applicants claim to be nationals of Fiji. They hold Republic of Fiji passports. The first-named applicant speaks Fijian and is familiar with that country. There is nothing to suggest that any of the applicants has any other nationality. The Tribunal therefore accepts that they are Fiji nationals, and assesses their protection claims against that country.
CONSIDERATION OF CLAIMS AND EVIDENCE, AND FINDINGS
Assessment of Claims
The Tribunal has taken into account the AAT Migration and Refugee Division’s Guidelines on the Assessment of Credibility (Credibility Guidelines) both in the conduct of the hearing and in evaluating the applicant’s evidence as a whole. In considering the applicant’s overall credibility, the Tribunal has reflected on the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants’.
The Tribunal notes the particular need for sensitivity when dealing with claims of domestic and family violence. In conducting the hearing, and in the assessment below, it has drawn on guidance in the National Domestic and Family Violence Benchbook.[2]
[2] Especially the sections on Vulnerable Groups (Women, 4.4.1, Children 4.4.3 and People from culturally and linguistically diverse backgrounds’, 4.4.9), ‘Fair Hearing and Safety’ (Chapter 5), ‘Evidence issues’ (Chapter 6, ‘Legal representation and self-represented litigants’.):
During this review, the Tribunal found the applicant’s account of her personal and family circumstances somewhat piecemeal. This appeared to reflect in part that members of the extended family live in Fiji and Australia, with various (sometimes unsettled) migration status, and family and working arrangements, and ad hoc movements. Even following the applicant’s letter of 29 January 2024, which helpfully listed her places of residency in Australia and her family, the Tribunal considers that some potentially relevant information – such as the applicant’s current relationship with a [Country] national – only trickled out in response to specific questions.

The Tribunal formed a generally favourable impression of the applicant, as having drawn largely on her own experiences in Fiji and Australia, and given a fairly consistent and unvarnished account of these. At the same time, however, it notes that she sometimes exaggerated or misconstrued some of her evidence (such as the threats to her from [Mr A]’s female relatives, following his conviction on unrelated criminal charges), and sought to bolster her case with new, unsubstantiated claims (for instance, about prior attempts to relocate in Fiji).
Primary application
In her protection visa application, the applicant gave the following reasons for seeking protection:
Question 76: Why did you leave [Fiji]? Please provide specific details. To escape the current elected government ruling in Fiji now. There seems to be no democracy in this country as the now ruling government is led by only one man. There is no freedom of speech and expressing any choice of the government.
Question 77: What do you think will happen to you if you return to [Fiji]? I fear if I return to Fiji, I may be subjected to intimidation by the police or military as I have no guarantee of being protected as the man in charge overruled the judiciary of the country.
Question 78: Did you experience harm in [Fiji]? N/a
Question 79: Did you seek help within [Fiji] after the harm? N/a
Question 80: Did you move, or try to move, to another part of [Fiji] to seek safety? No. The whole country is being government and ruled by the government of the day whereas no freedom of speech and expression of choice is practiced.
Question 81: Do you think you will be harmed or mistreated if you return to [Fiji]? The police and the military may harm me if I go back to Fiji due to this application for protection in this country.
Question 82: Do you think the authorities of [Fiji] can and will protect you if you go back? No, as the current government overruled the judiciary of the country.
Question 83: Do you think you would be able to relocate within [Fiji] to an area where you would not be harmed? No. The whole country of Fiji is government and ruled by the current government whereby democracy is not practised.
The delegate noted that the applicant had had the opportunity to provide all relevant information and supporting documents, on the protection visa application form itself and in the Department’s letter (acknowledgement of application) of 30 May 2018. The delegate refused the application on the material before them, without offering the applicant a protection visa interview.
The Tribunal wrote to the applicant on 4 January 2024, observing that in the December 2022 elections, Prime Minister Vorege (Frank) Bainimarama’s FijiFirst Party failed to win a majority, ending his 16 years in power.[3] There has been no significant political unrest or deterioration of government functions since the Rabuka government was elected.[4] It invited the applicant to comment on these developments, especially in light of her comments that there is ‘no democracy’ in Fiji.
[3] ‘Fiji’s new politics', Interpreter, The (Lowy Institute for International Policy), 17 January 2023; 'Fiji: A chance to stop political history repeating', Interpreter, The (Lowy Institute for
[4] 'Fiji 20230621135833 - Country Information - Political Update', Department of Foreign Affairs and Trade, 02 August 2023.
In a response dated 18 January 2024, the applicant acknowledged this information and wrote: ‘Due to this, I no longer fear harm from the Fijian authorities’. The Tribunal is satisfied that the applicant has resiled from this claim. It has some concerns that it was opportunistic from the outset, and that subsequent claims therefore merit close scrutiny,
Domestic violence (new claim)
In her statement of 18 January 2024, the applicant raised new claims of past domestic violence at the hands of her husband, [Mr A]. A detailed five-page statement describes domestic violence within the relationship, from 2011, in both Fiji and Australia. The applicant claims to fear harm from [Mr A] himself, as well as his family members (particularly his sister and aunt).
Domestic violence in Fiji
The applicant provided background information about her relationship with [Mr A], setting the scene for her claims of domestic violence. The couple first met through their church in 2008, and started dating in 2011. The applicant was studying to become [an occupation 3], and [Mr A] had recently become a full-time pastor in a local church.
The applicant described domestic violence within the relationship from 2011 up to the time of her departure for Australia in 2018. This included instances when [Mr A] was verbally and physically abusive (typically, yelling and slapping or punching), and coercive behaviour. She described arguments, sometimes in the context of [Mr A]’s and/or her drinking alcohol, his infidelity, and his disrespect towards her. [The applicant] wrote, in respect of the violence prior to their marriage, that she ‘always blamed [herself] for [Mr A]’s behaviour’ (an apparent reference to her own drinking) and that she was excited at the prospect of marrying him.
The applicant claimed that in 2014, she once went to the police station after a domestic violence incident at her parents’ home. They escorted her back to her parents, but did not offer any protection or pursue [Mr A]. Later, she asked an aunt for assistance, however, the aunt was dismissive of the applicant’s concerns, stating that she should forgive [Mr A], and that ‘Boys will be boys’.
§ On 29 January 2024 (11 days after her original statement of claims), she added that she once went to her home village in [Province 1], some three hours by bus from [Town], to flee domestic violence, but [Mr A] came to get her and forced to return home. She also mentioned occasions when [Mr A] came and got her after visiting her parents, and on one occasion, a friend in the interior of [Province 2] province.
She describes these as her efforts to ‘relocate’, leading her to the conclusion that this is not a realistic option in Fiji due to its small size and due to the applicant’s and [Mr A]’s profile through the church.
The applicant did not provide details of these incidents, or why she had omitted them from her earlier, detailed five-page statement. The Tribunal accepts that she drew on her personal experiences, of [Mr A] having collected her following visits to her parents’ place, her home village and another friend, and driving her back home. It does not accept at face value that he did so forcefully, or in the context of any domestic violence. It is concerned that she has misrepresented these incidents to bolster her protection claims.
The submission of 4 March 2024 contains a brief synopsis of these events:
- 2011: [Mr A] ‘yelled and slapped [the applicant] across the face’. This occurred in a public setting. He yelled at her and punched her in the head in a separate event later that year.
- 2012: [Mr A] ‘slapped [the applicant] while [pregnant]’.
- 2014: Domestic violence; the police escorted the applicant back home with no further action.
- 2016: [Mr A] slapped the applicant after she confronted him about cheating.
Overall, the applicant’s statements about her experiences of domestic violence in Fiji were measured, consistent with general country information, and generally credible (notwithstanding some concerns about the delay in presenting them). The Tribunal’s full assessment of these, and her claimed experiences in Australia, is below.
Domestic violence in Australia prior to separation in 2021
The applicant’s statement of 18 January 2024 includes a detailed account of conflict and domestic violence within the relationship, from the time of her arrival in Australia in February 2018. The ongoing tension and incidents of domestic violence, with contextual information where appropriate, may be summarised as follows:
§ The applicant’s aunt sponsored her to come to Australia, and she arrived [in] February 2018. Some three weeks later, [Mr A] returned to Fiji for about two months. During this period, the applicant received information about [Mr A]’s ex-marital affairs. She confronted him, telling him not to return to Australia. When he returned, the applicant and friend collected him from the airport. Despite the applicant’s wish to leave the relationship, ‘he kept forcing [her] to hold his hand’.
§ The following day (10 May 2018), the applicant and [Mr A] attended a wedding (of her brother’s in-laws) and stayed with her brother in [Suburb 2]. That night, [Mr A] choked, punched and raped the applicant.
   The applicant did not tell anyone about this, in part because she feared further violence from [Mr A], and in part because she did not want him to be arrested as it might adversely affect the children.
§ The couple argued a lot after this, but [Mr A] did not assault the applicant again for some time. She wrote that they were both trying to make the relationship work, for the sake of the children.
§ For the rest of 2018, through to mid-2021, ‘things were still going okay’. The couple had applied for protection visas; they moved to [Suburb 3] in December 2019; and they had a third child, in [Year].
§ From mid-2021, the couple started ‘fighting’ again. [Mr A] had indicated his interest in an open relationship. The applicant asked whether he had been seeing other people, but agreed to the idea, as a way of showing him that she could engage in such activities, too.
   One night in late July 2021, [Mr A] arrived home to find the applicant chatting on the telephone to another man. Furious, he began to choke her. The applicant’s daughter entered the room in response to the applicant’s screams.
   Despite [Mr A]’s presence, the applicant managed to call an emergency number and the police attended the house. One officer spoke to the applicant, who was visibly upset. For his part, [Mr A] was crying and saying that nothing had happened. In the end, the police left without taking any further action, simply telling the couple to ‘sort things out together’.
§ On Sunday 1 August 2021, the applicant and the children visited her sister for lunch. [Mr A] had dropped them off, and later returned to collect them. When the applicant said she and the children wanted to stay longer, he physically dragged her out of her sister’s home, over rocks and broken glass. When the applicant resisted his attempts to push her into the car, he slammed her head on the car door, pushing her and the children inside. They were all crying.
   The applicant’s sister, worried about the applicants’ welfare, followed them home. The applicant reassured her that the police were coming to the house.
   That night, the applicant’s daughter told her that she had seen [Mr A] kissing another woman in Fiji; that she remembered the couple fighting; and that she was upset that [Mr A] had hurt the applicant.
§ On 2 August 2021, the applicant contacted the police to seek their help in leaving the relationship. She went to her sister’s house with the youngest child; the other two were at school. The applicant then sought an ADVO against [Mr A], whom the police had taken to the police station. The applicant briefly returned home to collect personal belongings, and has lived with her sister since then.
§ The applicant claims that [Mr A] routinely breached the ADVO, by coming to her sister’s home, looking through the windows and, on one occasion, entering the house and breaking her daughter’s telephone.
§ The applicant did not report the ADVO breaches. She claims she was afraid that her children would blame her if her husband was punished.
The submission of 4 March 2024 summarises the key incidents in the following terms:
- 2018: [Mr A] raped and punched the applicant, and tore her dress. Church and family members could hear the incident, but did not intervene.
- 2021: [Mr A] yelled at and choked the applicant; the daughter entered the room. The NSW Police attended, but took no action. Also, at a social gathering, [Mr A] dragged the applicant over rocks and broken glass on a driveway, slamming her head against a car door. There were children present. Those present did not intervene, but [Ms C] (her sister) followed her home. The NSW Police were called, resulting in an ADVO in August 2021.
- 2021, 2022: [Mr A] breached the ADVOP on several occasions, including one when he forced his way into the home and smashed his daughter’s phone. The NSW Police were not called.
At hearing, the applicant gave some further insight into these incidents; she supplemented this with some documentation.
First police intervention: In relation to the first NSW Police call to their home (a few weeks prior to the August 2021 events), she said [Mr A] had come home drunk, and later tried to choke her. She called the police, who attended the scene, calmed the parties down, took statements from the parties, and left without any further action. The applicant later provided a copy of a NSW Police event record of 9 May 2021. The entry notes several calls to the emergency number, a female caller sounding distressed, and a subsequent visit to her home. It reads in part: ‘[The victim] was distressed and called triple 0 regarding the argument as she did not want anything else to escalate as they were both extremely angry at one another. Police attended the location… and separated both parties’. The Tribunal notes that the police record is dated 9 May 2021, whereas the applicant has variously stated that this occurred in late July 2021, and some two weeks or so before the more serious assault in August 2021. Also, as noted in the submission, there is no mention in the police record of the applicant having claimed that [Mr A] choked her on this occasion.
1 August 2021: a second assault: At hearing, the applicant spoke about the events of 1 and 2 August 2021, and her sister [Ms C] also addressed this. [Ms C] confirmed that this took place at a family gathering where the applicants were. [Mr A] later came to collect them. She recalled seeing him confront the applicant, drag her along the driveway where there were rocks and broken glasses, kick her in the abdomen, bang her head and then force her into the vehicle. She noted that the child applicants were crying. In response to the Tribunal’s questions, [Ms C] said that no one in the family intervened to protect the applicant, or call the police. She said that Fijians do not respond in this way. They prefer to calm down the perpetrator, and protect the children (implicitly, from any outside intervention).
A NSW Police report dated 4 August 2021 describes [Mr A]’s confrontation with the applicant on 1 August 2021, including his use of force to get her into the car.
On 6 March 2024, the applicant submitted a photograph of bruising, purporting to be from that incident. There is no further information – such as date – that provides context for this single photograph.
2 or 4 August 2021: Police contact and ADVO: The applicant referred at hearing to the events that led to the ADVO, although it was somewhat difficult to establish a clear narrative. The NSW police report of 4 August 2021 is generally consistent with her detailed statement of claims. Interestingly, the applicant had claimed in her statement (paragraphs 51-52) that she moved to her sister’s house in [Suburb 4] on 2 August 2021, and called the police from there. However, the police report indicates (page 6) that the applicant telephoned them after 10:30am on 4 August 2021, after [Mr A] had approached her at 5:15am and made demands. (Although the report has all personal data deleted, it would appear that [Mr A] had turned up at the [Suburb 4] premises, demanding that the applicants return to the family home with him.) Later that morning, at 10:50am, the police arrested [Mr A].
The applicant submitted a partial photocopy of a provision ADVO issued on 4 August 2021 and a final order, dated 16 August 2021. The final order relates to the applicant ‘or anyone she has a domestic relationship with’, and prohibits [Mr A] from the following: (a) assault or threaten her; (b) stalk, harass or intimidate her’; and (c) intentionally or recklessly destroying or damaging property, or harming an animal that belongs to or is in the possession of the applicant.
The Tribunal noted at hearing the applicant’s detailed statement of claims, her oral evidence, [Ms C]’s testimony and the supporting documents. It is satisfied that the claims regarding [Mr A]’s domestic violence towards the applicant, in Fiji and Australia, are based on a core of truth. In the present case, the nature of [Mr A]’s domestic violence towards the applicant prior to August 2021, his subsequent conduct towards her and his stated intentions all form a critical part of its assessment of Australia’s protection obligations. With this in mind, it explored whether the applicant had discussed her issues with family and friends (other than [Ms C]), with church or support groups, or with any medical professionals (for instance, in relation to any grazing or bruises in August 2021, or any mental health groups. She replied briefly that she had not. She mentioned in this context that she had felt depressed. Asked whether she had received any diagnosis or treatment, she said that she had received some counselling. She did not provide any details or supporting evidence, and the Tribunal did not press this further.
Developments since the ADVO and the couple’s separation in 2021
Breaches of ADVO
The applicant claimed that [Mr A] breached the August 2021 ADVO on multiple occasions, calling on her sister’s home in [Suburb 4]. He would peer through the window, and on one occasion he entered the house and broke the second-named applicant’s mobile telephone. In March 2022, the applicants moved to [Town], NSW, at the suggestion of the applicant’s mother. [Mr A] continued to call the applicant after the move.
In response to the Tribunal’s query where there was evidence to support her claim that [Mr A] had smashed the second-named applicant’s mobile telephone, the applicant provided a smartphone order history showing her purchase of phones for delivery in March 2021, November 2021 and December 2021. There is no demonstrated link between these purchases, and the applicant’s claim that [Mr A] broke the second-named applicant’s telephone sometime after August 2021. They are, in the Tribunal’s view, of no probative value.
The Tribunal explored with the applicant whether she had any other supporting evidence, and in particular whether she had reported [Mr A]’s ADVO breaches to the Australian authorities (which had presumably been the purpose for seeking the ADVO in the first place).
§ In her statement of claims, the applicant noted that [Mr A] had been permitted to visit the children, provided she was not present. She also commented that she feared that her children would blame her if ‘anything happened’ to [Mr A] (i.e. if the authorities stopped him seeing them). The Tribunal notes, however, that her move to [Town] in March 2022 had precisely this effect.
§ The submission of 4 March 2024 also contends that, despite [Mr A]’s continued contacts and his specific enquiries for the applicant (rather than merely access to the children), she ultimately felt that the ADVO offered her recourse to protection from him. Curiously, however, it also contends that ‘these remarks [up to April 2021] heavily demonstrate that [Mr A] would continue to pose a threat and thereby exists a real chance of persecution.
§ At hearing, the applicant said that she did not report these breaches because she did not want to get [Mr A] into trouble, as she feared for the children’s best interests as well as their safety.
The Tribunal recognises the complexity of domestic violence scenarios, including that victims may feel conflicted between concerns for their physical and mental well-being, a reluctance to engage authorities, and a concern not to antagonise perpetrators. On 24 February 2024, the Tribunal wrote to the applicants, alerting them to information that [Mr A] had provided during the course of his request for revocation of his bridging visa cancellation He expressed a strong interest in maintaining a relationship with his children (and an apparent acceptance that the applicant was in a new relationship). At face value, this suggests that he had a motive for breaching the ADVO, and lends credibility to the applicant’s claim.

On 12 April 2022, the applicant contacted the Tribunal to advise that she and [Mr A] had separated; she attached a copy of the provisional ADVO. This was shortly after her reported move from [Suburb 4] to [Location], NSW, and also tends to support that there was a link between the applicants’ move to [Location] (and later [Town]), and the ADVO (including potentially, [Mr A]’s breach of its terms).
Overall, the claims regarding [Mr A]’s repeated ADVO breaches are unsubstantiated, though plausible.
Blame for [Mr A]’s arrest and criminal conviction
As noted in the applicant’s statement of claims on 18 January 2024, [Mr A] was involved in a serious car accident [in] April 2022. She provided a link to an article reporting the accident.[5] [Mr A] was charged with multiple serious offences, refused bail, and ultimately convicted and imprisoned. This has two significant consequences for this review: (a) it means that [Mr A] was severely restricted in his contacts with the applicants while still in Australia (which results in an evidentiary gap as to his present attitude towards them and his potential future conduct, including if he has contact with them in Fiji); and (b) it has given rise to a new claim, namely that [Mr A]’s extended family blame the applicant for his conduct and conviction, and (together with [Mr A]) will allegedly be motivated to harm her if she returns to Fiji.
[5] [Reference]
The applicant claims that [Mr A]’s sister in Fiji, [Ms DD] (known on [Social media] as [Ms D]) had sent messages to people in Fiji blaming the applicant for [Mr A]’s predicament, alleging that she had caused him to start drinking.
The applicant submitted a screenshot of a text exchange between a friend of hers and [Ms D]. The translation of [Ms D]’s comments include the following:
‘Now this is what the family is talking about when [Ms D] comes to Fiji she is going to be assaulted. She is very arrogant. When she reaches Fiji she is going to get physically assaulted and going to get hurt.’
[Recipient of the message: ‘Oh.. mannnn… I just say… Mannn [the applicant] will really be hurt if she come to Fiji.]
‘She did not even think of the kids. If I was [the applicant]… I would dread going back to Fiji since her aunties are waiting for her now.’
The Tribunal accepts that [Mr A]’s family and friends are aware of his conviction and imprisonment in Australia. It also accepts as plausible, having regard to conservative and religious values in Fiji, and [Mr A]’s standing as a pastor, that they were upset by this news, and sought to rationalise it. As discussed during this review, [Mr A] is reported to have criticised the applicant in interviews on several occasions, including that she struggles to provide for the children, that she is not focused on parenting (as she does not usually live with them), and that she is in a new relationship. The Tribunal considers it highly likely that – irrespective of the truth of these matters - he has voiced these, and perhaps other criticisms of the applicant elsewhere, including to his family and friends. This could go so far as to suggest that she is at least partly to blame for his drinking, for the accident that led to his conviction, and ultimately spoiling his prospects of remaining in Australia.
However, the Tribunal considers it an altogether different proposition to suggest that family members such as [Ms D] would, on the basis of such statements, form an intention to physically assault the applicant if she returns to Fiji, and declare this to other people on social media. Whether the purported social media messages have been contrived to assist the applicant with this application, or whether they reflect reckless bravado, the Tribunal does not accept that [Ms D] has declared a genuine intention to have the applicant assaulted on her return to Fiji. However, it does accept that she and others close to [Mr A] may have criticised the applicant, including aspects of her private life.
Analysis and findings
Section 423A
The applicant first alerted the Tribunal to domestic violence within the relationship on 12 April 2022, when she requested that her application for review be separated from that of [Mr A], and provided a partial copy of a provisional ADVO. As noted above, she first presented protection claims relating to this on 18 January 2024.
Section 423A requires the Tribunal to draw an unfavourable inference as to the credibility of an applicant’s claim or evidence where an applicant raises a claim or presents evidence that was not put forward before the primary decision was made, if the Tribunal is satisfied that the applicant does not have a reasonable explanation as to why the claim was not raised or evidence presented before the primary decision. In the present case, the Tribunal finds it unsurprising that the applicant did not raise claims of domestic violence in the primary application, when she and [Mr A] (the alleged perpetrator) were presenting their protection claims in a joint application. It also takes into account that in April 2022, the applicant took the initiative to advise the Tribunal that her relationship with [Mr A] had broken down, and that she wished to pursue her protection claims separately. She attached a copy of the provisional ADVO to that email. This was, realistically, the first opportunity she had to present claims of domestic violence at [Mr A]’s hand. Section 423A therefore does not apply in this case.
Overall, the Tribunal found the applicant’s claims regarding [Mr A]’s sustained domestic violence against her, including coercive behaviour and psychological pressure, to be reasonably detailed, consistent and coherent. There is some limited corroborative evidence, for instance, the police report and the ADVO. That said, the Tribunal found some aspects of the applicant’s unsettling, such as her failure to report (claimed) instances when [Mr A] repeatedly breached the terms of the ADVO. Similarly, the applicant’s and [Ms C]’s account of the family’s response to [Mr A]’s conduct at a family event in August 2021 raised some concerns. On the one hand, their reluctance to assist the applicant (or seek police assistance) suggests that the applicant may have exaggerated her account of [Mr A]’s violence towards her, and indifference to the children. On the other hand, it acknowledges country information about the reluctance of people to intervene in what is often regarded as a private matter within the confines of a marriage, and in particular to seek official intervention.
The Tribunal also takes into account the following material in its analysis.
The National Bench book
As noted above, the Tribunal drew on the National Domestic and Family Violence Bench Book[6] (NDFVBB) during the review, in contextualising the claims and evidence, and now in its assessment. Of particular relevance to this case are the following points:
§ “Coercive control is almost always an underpinning dynamic of family and domestic violence: Perpetrators exert power and dominance of victim-survivors using patterns of abusive behaviour over time that create fear and deny victim-survivors liberty and autonomy.”[7]
§ “Many victims of domestic and family violence may be motivated to leave, however they may face a myriad of barriers, including: lack of financial resources; concerns for the welfare of children, family and pets; disability, lack of alternative, safe accommodation; inadequate formal support systems; disrupted social networks; religious and cultural beliefs preventing them from leaving; and fear of retaliation by the perpetrator.”[8] In the present case, the applicant’s dependence on [Mr A], particularly in a new country, may have served to exacerbate these concerns
§ It is a myth that ‘the domestic and family violence will stop when the victim and perpetrator separate’, as a perpetrator ‘may use a variety of tactics to reassert control over the victim’.[9] This makes it all the more difficult to draw any inferences from [Mr A]’s conduct since his incarceration and immigration detention in Australia, including as a predictor of what he may do if he and the applicants return to Fiji.
§ The NDFVBB notes that, while women of all backgrounds may experience domestic and family violence, women from culturally and linguistically diverse backgrounds may be particularly vulnerable. Relevantly, it notes practical and cultural pressures for such women to endure violence, rather than end relationships and break up families.[10] As noted above, these factors feature in the applicant’s account of why she endured the relationship; how the ‘support network’ of relatives in Fiji and Australia was fairly ineffective in acknowledging and responding to [Mr A]’s violence; and why she and relatives avoided seeking protection.
[6] National Domestic and Family Violence Bench Book,
[7] NDFVBB, 3.2 ‘Coercive Control’.
[8] NDFVBB, 4.1 ‘Myths and misunderstandings’.
[9] NDFVBB, 4.1. ‘Myths and misunderstandings.
[10] NDFVBB, 4.9, ‘People from culturally and linguistically diverse backgrounds’.
In the end, all of these factors influence the Tribunal’s interpretation of the applicant’s evidence, and, broadly speaking, supports the account of domestic and family violence that she has portrayed.
Relevant country information
The Tribunal takes into account country information set out in the most recent Department of Foreign Affairs and Trade report for Fiji, dated 20 May 2022; the references in the submission of 6 March 2024; and information from a range of other sources. These are consistent with the observations made by the applicant and [Ms C] about general attitudes in Fiji, including the reactions of their family and friends during the domestic violence incident that occurred on 1 August 2021, and the attitudes to the victims of domestic violence more generally.
The Tribunal sets out, for reference, excerpts from the most recent DFAT report (as highlighted in the submission of 6 March 2024). DFAT’s analysis is consistent with that from other sources, .
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. In October 2020 the then Minister for Women, Children and Poverty Alleviation, Mereseini Vuniwaqa, said that 72 per cent of women in Fiji might experience violence in their lifetime. Vuniwaqa said that violence in Fiji affected women from all socio-economic backgrounds. She also noted that in 2020 (to October) police had recorded 1,545 cases of violence against women. Elsewhere, Vuniwaqa has acknowledged that Fiji’s rate of violence against women and girls is among the highest in the world. The media reported 10 deaths from domestic violence in 2020.
3.52 Reported cases of sexual assault are also high. According to media reports, 531 cases of rape were recorded against 240 victims, of whom 165 were minors, in 2020. The Fiji Women’s Rights Movement analysed rape cases in the High Court in 2020 and found a male perpetrator in all 81 cases and an average age of victims of 14 years. […]
The Tribunal infers from the DFAT report and similar sources that domestic violence is widespread in Fiji, and that it is closely linked with cultural attitudes towards women. Despite official steps to prevent it, traditional values and practical considerations (such as resource constraints) mean that such conduct is often under-reported and that protection may not be available. This information is broadly consistent with the applicant’s claims and evidence about her treatment at the hands of [Mr A], although it does not resolve the Tribunal’s concerns about the alleged threats to her from [Mr A]’s relatives, or its assessment of the facts relating to the applicant children.
Findings
Having regard to the material as a whole, the Tribunal makes the following findings:
§ Based on the first-named applicant’s detailed written statements, her oral evidence and that of [Ms C], and taking into account the NSW Police Force report of 4 August 2021 and the ADVO dated 16 August 2021, the Tribunal accepts that she has been subject to domestic and family violence at the hands of [Mr A]. While the incidents of physical harm appear to have been limited, the Tribunal accepts that this occurred in the context of an abusive relationship that included coercive control and resulted in psychological harm.
§ The Tribunal finds that, while [Mr A]’s family members may be critical of the applicant, they have made no credible threats to physically harm her in Fiji, or inflict other harm (such as social rejection or psychological harm) that amounts to persecution or significant harm.
§ The Tribunal accepts that the children, particularly the second-named applicant, have been exposed to the domestic and family violence that occurred between the applicant and [Mr A], directly and indirectly. This included witnessing the couple fighting on a few occasions, being subject to manipulation from either or both parents, and having to navigate unsettled situations (such as [Mr A]’s access to them, and his unwelcome behaviour towards the applicant). The Tribunal accepts that this had some adverse emotional impact on the applicant children. While the Tribunal accepts as plausible that such disregard for the children may amount to family and domestic violence, it is not satisfied on the available material that [Mr A]’s conduct involved serious or significant harm in relation to them.
ASSESSMENT: REFUGEE CRITERION
In order to meet the refugee criterion, a person must have a well-founded fear of persecution for one or more of the reasons mentioned in s.5J(1)(a), namely race, religion, nationality, membership of a particular social group or political opinion. The Tribunal assesses the applicants’ claims in light of the findings of fact above, their future conduct if they return to Fiji, and relevant country information.
At hearing, the applicant was uncertain about her future conduct in Fiji, reiterating briefly that she is concerned for her safety, given that [Mr A]’s and his family’s animosity towards her; their influence, particularly through the church, and the fact of Fiji being a small country. The Tribunal proceeds on the basis that she would return to [Town], where her mother, three siblings and other family members live, and focus on settling herself and children into work and school there.
The first-named applicant
Real chance of being persecuted
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted.
Harm from [Mr A]: Based on the findings of fact above, and having regard to the applicant’s evidence at hearing, the Tribunal is satisfied that she is uncertain and apprehensive about [Mr A]’s conduct towards her if she returns to Fiji, and that this amounts to a genuine fear of being persecuted, as required by s.5J(1)(a).
For the reasons stated above, the Tribunal is satisfied that the applicant has been subject to domestic and family violence from 2012 to 2021; and that this led to the couple’s separation in 2021. As discussed in detail during this review, an assessment of the applicants’ future prospects in Fiji and whether she faces a real chance of persecutory harm, are far from straightforward.
§ As discussed during the review, [Mr A]’s past domestic violence took place within the couple’s ongoing marriage and co-habitation, sometimes featuring alcohol consumption and arguments over issues such as infidelity.
§ Circumstances have changed significantly over the past three years, given the couple’s separation, [Mr A]’s imprisonment after a criminal conviction, and the applicant’s new relationship. There are signs that – irrespective of whether [Mr A]’s description of his relationship with the children is genuine, or a ploy to remain in Australia – he has accepted that he and the applicant are no longer in a relationship.
§ At the same time, the Tribunal acknowledges that there are significant unknowns, in particular: (a) future arrangements for [Mr A]’s access to the children; (b) [Mr A]’s intentions towards the applicant, and (c) more generally, his future activities in Fiji.
§ The Tribunal takes into account the representative’s contention, in paragraphs 2.5-2.6 of the submission, that if the applicant were to return to Fiji – and irrespective of any ‘agreed civil access or custody arrangements’ in relation to the children – she would still need to deal with [Mr A] in relation to the children, and in an environment where he and his family enjoy greater standing and autonomy, and he is not subject to an ADVO or other effective restraints. Although the Tribunal considers that the representative went too far in asserting that these factors ‘will increase [the risk of harm] to the point of persecution’, it accepts that they are relevant factors in its real chance assessment.
Relevantly, a ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379. As the Tribunal signalled during this review, the applicant’s claim to have a well-founded fear of persecution in Fiji is not particularly strong. However, considering all of the claims and evidence cumulatively, and noting that much of it relates to ‘unknowns’, the Tribunal accepts that there is a small but nonetheless real chance of [Mr A] targeting the applicant and harming her, if she returns to Fiji.
Harm from [Mr A]’s family members: The Tribunal accepts that [Mr A] may have criticised the applicant, to friends and family, and perhaps even suggested she is (partly) to blame for his drinking and criminal conviction. It accepts that these family members and friends may have sided with [Mr A], and be unwilling to associate with the applicant or assist her (for instance, if she were to be subject to further violence). However, it considers the applicant has misconstrued the messages that these family members have sent. It does not accept that she genuinely fears persecutory harm from them, or that there is a real chance of such harm (including physical or psychological harm) in the reasonably foreseeable future.
Serious harm
The Tribunal is also satisfied that there is a real chance of [Mr A] inflicting serious harm amounting to persecution. For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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. The Tribunal has accepted that [Mr A] has physically harmed the applicant in the past (including verbal abuse, and physical assaults such as rape and strangulation), and that there has been sustained emotional abuse. Looking ahead to the reasonably foreseeable future, the Tribunal considers that there is a real chance of such harm continuing or escalating. It is satisfied that, considered cumulatively, such physical and psychological harm could involve serious harm amounting to persecution, as required by s.5J(4),
Effective protection measures
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s 5J(2).
Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection. A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA(2).

As noted above (paragraph 46), the applicant described a few occasions when she sought protection or assistance in Fiji in the wake of domestic violence. Once in 2014, the police responded with indifference when she reported [Mr A]’s domestic violence to them. On another occasion, [Mr A]’s aunt was dismissive when the applicant alerted her to his infidelity, their arguments and him slapping her.
For the main part, the applicant did not seek protection in Fiji, in part because she tended to blame herself (especially when she and [Mr A] had both been drinking and arguing) and also in order to avoid confrontation or spoiling family expectations. The National Bench Book provides some useful context for evaluating these statements. It notes, for instance, that many victims of domestic violence face barriers – such as lack of financial resources, concerns for the welfare of children, inadequate support systems, religious and cultural pressures to preserve family unit, and fear of retaliation – that may prevent them from leaving an abusive relationship. The same considerations may apply to seeking police or other protection.[11] The evidence of the applicant and [Ms C], in relation to police protection and the enforcement of the ADVO in Australia - namely that the Fijian community expects its members to solve their problems internally, for cultural reasons and implicitly also because there is a distrust of the authorities – is relevant.
[11] NDFVBB, 4.1 ‘Myths and misunderstandings’
Significantly, the applicant also implied that she did not seek protection also because she thought that it would be futile, i.e. she doubted that effective protection would be available.
During the review, the Tribunal drew on a range of country information which addresses the availability of effective protection measures against the feared persecution. In a nutshell, this indicates that Fiji has fairly progressive domestic violence laws in place, such as specific offences relating to domestic violence, as well as spousal rape. These protections are found in enactments such as the Family Law Act 2003, the Domestic Violence Decree 2009, the Criminal Procedure Decree 2009, the Crimes Decree 2009, and the Family Law (Amendment) Decree 2012. There have been significant policy initiatives to improve protections for the victims of gender-based violence. For instance, the government’s rollout from July 2018 of the National Service Delivery Protocol for Responding to Cases of Gender-Based Violence commits the Fiji Police, the judiciary and the Office of Public Prosecutions to obtain better justice outcomes for the survivors of such violence, and established common principles and guidelines to ensure survivors obtain better services from providers.[12] There is, for instance, a formal policy requiring the police to investigate allegations of domestic violence, even if a victim withdraws an accusation.
[12] Berrell J, UN Women, Asia and the Pacific: Fiji rolls out protocol to better co-ordinate services for survivors of gender-based violence, 9 July 2018, UN Women. Asia and the Pacific: Fiji Services for Survivors of Gender-based Violence Set to Further Improve, 14 March 2018
However, many reports indicate that Fijian survivors of domestic violence often find that there is, in practice, no effective protection available for them. Reasons for this include that the police do not always follow domestic violence policy, in part due to discrimination and cultural attitudes, but also due to resource constraints. They, like family and community members, may pressure the survivors of domestic violence to forego seeking protection, and instead reconcile with partners or resolve any issues within traditional structures. Other sources indicate that access to institutions and services is uneven, particularly for people in minority groups and outside the main urban areas.
The most recent DFAT report summarises the situation as follows:
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. […]
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. […] 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 relation to the protection available from non-State parties or organisations, the Tribunal notes that women’s crisis centres and counselling are available, and a national 24-hour hotline was launched in 2016.[13] The Fiji Women’s Crisis Centre (FWCC) is the main NGO offering services such as counselling, social support and community education[14]. There are shelters in urban areas. At the same time, United Nations Women assessed that quality essential services for women and children escaping violence is often limited or unavailable, or, even in urban areas, of variable quality.[15]
[13] Howes, The Fiji Women’s Crisis Centre: three decades of Australian support, Development
[14] Fiji Women’s Crisis Centre, Our Services, undated.
[15] UN Women et al, June 2022: Pacific Partnership to End Violence Against Women and Girls (Pacific Partnership): Fiji Country Summary.
In considering the availability of effective protection, the Tribunal takes into account that the applicant would be returning to Fiji as a separated woman taking care of two children, and that she would be seeking protection from [Mr A] who, through his church and family links in [Towns], may well have some standing and influence over local authorities. DFAT noted, for instance,[16] that ‘family ties and loyalties and traditional hierarchies can protect perpetrators’. Taking all of these factors into account, the Tribunal is not satisfied that effective protection measures are available to the applicant in Fiji, within the meaning of s.5J(2), and having regard to s.5LA(1) and (2).
Real chance relating to all areas
[16] DFAT Country information Report – Fiji, May 2022, paragraph 3.57
Under s 5J(1)(c), the real chance of persecution must relate to all areas of the receiving country
The Tribunal is satisfied that the applicant faces a real chance of persecution in [Town], where she and [Mr A] have extended family. In considering whether there is a real chance of persecution throughout Fiji, the Tribunal takes into account the following:
§ The Tribunal notes DFAT’s comment (cited above) that ‘Fiji is relatively small and sometimes people can be tracked down through kinship networks’.
§ [Mr A]’s stated interest in maintaining a relationship with the children, and the possibility that he may formalise this through custody or access arrangements, suggest the applicant will have a responsibility to disclose to him her (and the children’s) whereabouts.
§ [Mr A] appears to have family and social ties in [Towns], and may have broader connections through the church. This would provide him with opportunities to pursue the applicant throughout Fiji.

100. The Tribunal is satisfied that the real chance of persecution ([Mr A]’s future mistreatment of the applicant, and the lack of effective protection) relates to all areas of Fiji.
Reason(s) for and nature of persecution

If a person fears persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a). Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss 5J(4)(b), (c).

102. When a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of it is to be determined in accordance with s 5L. It provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or it must distinguish the group from society.
103. The submission of 4 March 2024 posits particular social groups based on the following attributes: (a) Fijian women; and (b) Fijian women who: (i) ‘do not have male protection’, (ii) ‘are victims of domestic violence’ and (iii) ‘are mothers who have left their partners’.
104. The Tribunal finds that the applicant’s well-founded fear of persecution arises due to a: (a) the small but nonetheless real chance that [Mr A] will seriously harm her if she returns to Fiji; and (b) the lack of effective protection from such harm, whether from the State or from non-State entities.
105. In the Tribunal’s view, the fear of persecution from [Mr A] arises largely from the couple’s personal circumstances, including [Mr A]’s past record of violent conduct with impunity, and the potential for disputes over issues such as the children (both [Mr A]’s access to them and the applicant’s parenting) and whether the applicant’s conduct contributed to his conviction and imprisonment. At the same time, the applicant’s and [Ms C]’s evidence strongly suggest that traditional Fijian attitudes that include men’s dominance of and control over women (particularly partners and ex-partners), and their perceived right to exert that control with impunity, were significant factors in [Mr A]’s past conduct towards the applicant. The Tribunal notes, for instance, a recent UN report on Fiji, cited in the submission of 4 March 2023, which reads:
Deeply rooted discriminatory stereotypes regarding the roles and responsibilities of women and men in the family and society, which not only adversely affect women in all walks of life and perpetuate their inferior position in the family and society but also constitute a significant breeding ground for gender-based violence against women in the private and the public spheres.[17]
[17] Committee on the Elimination of Discrimination against Women, Concluding observations on the fifth periodic report of Fiji, CEDAW/C/FJI/CO/5, 69th sess. (14 March 2018) 3.

106. The Tribunal is satisfied that these attitudes will – alongside his personal motivations – be influential in [Mr A]’s pursuit of the applicant.
107. In relation to the availability of protection from such harm, the Tribunal notes that Fiji has made significant steps towards recognising, prioritising and putting in place mechanisms to combat gender-based violence. However, as DFAT concluded in its most recent report, the effectiveness of such protections is undermined by persistent discrimination on the parts of the Fiji police, reinforced by attitudes in the community.
108. Taking into account the nature of Fijian society, which has strong traditional values and sharply-defined gender roles, the Tribunal is satisfied that there currently exists a particular social group consisting of women in Fiji. It finds that the applicant’s membership of that particular social group is one of the essential and significant reasons for the persecution she fears, having regard to both the motivation of the perpetrator and the reasons why effective protection measures are not available to her.
109. While the Tribunal finds that the applicant’s membership of a particular social group of women in Fiji is one of the reasons for the feared persecution, it is the particular circumstances of her situation – including [Mr A]’s prominent church links, her return to Fiji with two dependent children and his future access to them – that elevate the risks to her to a ‘real chance’ of persecution. As such, the Tribunal does not need to consider whether there also exists in Fiji any more narrowly defined particular social groups – based on attributes such women without male protection, or who are the victims of domestic violence, or who are mothers separated from their partners. It also does not need to consider whether the applicant’s membership of any such putative particular social groups would be an additional or alternative basis for finding that she satisfies s.5J(4)(a).
110. In short, the Tribunal is satisfied that the first-named applicant fears persecution in Fiji, in the form of domestic violence amounting to serious harm at the hands of [Mr A] if she returns, and that this would entail systematic and discriminatory conduct. For the reasons stated above, the Tribunal finds that the applicant meets the requirements of s.5J(4) and s.5J(1).
111. The Tribunal further finds that the first-named applicant is unable, and unwilling because of her fear, to avail herself of the protection of the Fijian authorities.
112. Section 36(2) of the Act, which refers to persons in respect of whom Australia has protection obligations, is qualified by subsections 36(3), (4), (5) and (5A) of the Act. It provides that Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail themselves of a right to enter and reside in a country other than Australia where they do have a well-founded fear of persecution or face a real risk of significant harm. There is nothing to suggest that any of the applicants has relevant rights in respect of any country other than Fiji.
113. Accordingly, the Tribunal is satisfied that the first-named applicant has a well-founded fear persecution for reason of her membership of a particular social group, now or in the reasonably foreseeable future, if she returns to Fiji : s.36(2)(a).
The second- and third-named applicants
114. The Tribunal now assesses whether the second- and third-named applicants, a daughter aged [Age] and a son aged [Age], have a well-founded fear of persecution for a s.5J(1)(a) reason. It acknowledges the difficulties in determining the relevant facts, and assessing on the basis of these what may occur in the reasonably foreseeable future, if they return to Fiji. This applies in particular due: (a) the fact that their protection claims mainly derive from that of their mother, i.e. as witnesses of domestic violence against her in the past (which may have had a psychological or other indirect impact on them as family members, but did not involve direct harm to them); (b) the significant changes in their circumstances since 2021, including the separation of their parents, [Mr A]’s incarceration and limited contact with them, their mother’s reliance on other family members and (possibly) a new partner, and the passage of time (the children, now three years older, may be both more perceptive of and vulnerable to the impacts of family violence); and (c) and the uncertainties around their and [Mr A]’s future living arrangements and contacts, if they return to Fiji.
115. The following factors weigh heavily in the Tribunal’s assessment.
116. First, the Tribunal is mindful that the children’s most recent regular contact with [Mr A] appears to have been some three years ago, when they were about [Ages] respectively. The Tribunal finds on the material before it that, if the children were to return to Fiji, they would do so in the company of the applicant. For the reasons stated above, the Tribunal is satisfied that the applicant has a well-founded fear of persecution, namely in the form of serious harm at the hands of [Mr A].
117. Second, there is some limited evidence that [Mr A] has caused indirect harm to the children in the past, namely through his mistreatment of the applicant and his apparent disregard of its impact on the children.
§ The daughter disclosed to the applicant that she had seen [Mr A] kissing another woman in Fiji (i.e. when she was six years old, or younger), and this had upset her. The Tribunal notes that the applicant described this incident to provide context for the couple’s arguing, and to illustrate [Mr A]’s infidelity and disrespect towards her and the children. It places minimal weight on this account as evidence of any past mistreatment of the children.
§ The children’s exposure to individual acts of violence in Australia (such as the daughter walking in on [Mr A] choking the applicant in July 2021, and their presence during his violent conduct at a party in August 2021), and an occasion when he breached the ADVO, entered the house and broke the daughter’s telephone.
§ Broader exposure to the parents’ fighting over time, and, even after the issuance of the ADVO, the impact of them of [Mr A]’s pursuit of the first-named applicant (by appearing at the home unannounced and asking questions through the daughter).
118. Third, there are no claims or evidence that [Mr A] directly harmed the children. Significantly, the ADVO did not mention the children, and there is no record of concerns for their safety. According to the applicant’s statement (paragraph 55), [Mr A] continued to have access to them, provided the applicant herself was not present. In this context, the applicant explained that she did not want to hurt the children by denying [Mr A] access to them. The Tribunal infers from this that she had no genuine fears that he would harm them directly, and that any concerns she had about any indirect harm (such as unwelcome questioning about her) were outweighed by the benefits of the children having a relationship with him. Moreover, the Tribunal notes that on at least some occasions, [Mr A] appears to have acknowledged the children’s presence, such as the incident in July 2021 when he stopped hitting her when the daughter entered the room. .

119. Fourth, a complicating factor in the Tribunal’s assessment is that there are competing narratives about [Mr A]’s conduct vis-à-vis the children, and his (stated or presumed) intentions into the future. These are, in the Tribunal’s view, potentially relevant to assessing whether he may inflict harm on them in the future, including indirectly (for instance, through recklessly exposing them to domestic violence). However, it is unable to test these rigorously.
§ As discussed at hearing and noted in the s.424A letter, [Mr A] has acknowledged the applicant parents’ separation, and indicated his wish to provide for and have a close relationship with the children in the future. He made a number of specific claims – all unsubstantiated – as to his role in raising the children, and some allegations about the applicant’s adequacy as a mother.
§ The applicant claimed, in her oral evidence and in the submission of 4 March 2024[18], that [Mr A] in fact has not supported the children, and that his statements about a relationship with them were motivated at least in part by his wish to have his visa cancellation revoked. The submission goes on to contend that: ‘The genuineness of [Mr A]’s intention to uphold ongoing contact with the children is not one for the Tribunal to assess in this matter’. For its part, the Tribunal considers this issue relevant to its review, as it potentially goes to [Mr A]’s sense of responsibility towards the children, including the avoidance of any exposure to domestic violence. However, it is not possible, on the limited available evidence, to assess and draw firm conclusions on this point.
[18] Paragaph 2.3, page 7.
§ The submission of 4 March 2024 noted the applicant’s comment that she did not report [Mr A]’s breaches of the ADVO to the police due to her concern for the children’s welfare and best interests. This echoes other comments that she and other family members avoided police involvement (for instance, seeking assistance during his earlier acts of domestic violence) to spare the children being exposed to such intervention (implicitly, due at least in part to cultural reasons).
120. Fifth, the Tribunal has considered whether the harm feared by the children involves serious harm, as required by s.5J(4) and described by the (non-exhaustive) examples in s.5J(5). It notes that serious harm can include psychological harm, which is also reflected in the UNHCR Guidelines on Child Asylum Claims, which addresses the vulnerabilities of children.[19] Clearly, as noted in the National Bench Book,[20] children’s exposure to domestic and family violence - including witnessing violence, and witnessing the aftermath of violence, and growing up in an environment of stress, without stability or security – can cause psychological harm, directly and indirectly. In the present case, Tribunal accepts that [Mr A]’s conduct towards the applicant has upset the second-named applicant on occasions. However, it not satisfied that, it has in the past caused serious harm within the meaning of s.5J(4).
[19] Referred to in Department of Home Affairs, Refugee Law Guidelines, sections 3.11.7 and 3.11.9, as re-issued 27 November 2022.
[20] National Domestic and Family Violence Bench Book, Chapter 4 Dynamics of domestic and family violence, and 4.4.3 Children:
121. After careful consideration of all these factors, cumulatively, the Tribunal finds there is no real chance of [Mr A] inflicting serious harm on the applicant children in the reasonably foreseeable future, if they return to Fiji. The Tribunal notes that there are no claims or evidence regarding the direct inflicting of domestic and family violence against the children. In the particular circumstances of this case, it finds that there is no real chance of either the second- or third-named applicant being subject to serious harm – including psychological harm due to any future exposure to domestic violence.
122. The Tribunal therefore finds that the second- and third-named applicants do not have a well-founded fear of persecution within the meaning of s.5J(1), and therefore do not satisfy s.36(2)(a).
ASSESSMENT: COMPLEMENTARY PROTECTION
The second- and third named applicants
123. Having found that the applicant children do not meet the refugee criterion, the Tribunal now considers whether on the evidence before it, there are substantial grounds for believing that there is a real risk that they (either or both of them) will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Fiji. Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCR 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition and that reasoning appears equally applicable to the refugee criterion in s. 5J(1)(b).[21]
[21] See Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170-1 at [1169], [1180]
124. The findings of fact, country information and observations above about their relationship with [Mr A] are relevant to this assessment. The Tribunal recognises that childhood exposure to family and domestic violence can have a range of adverse consequences,[22] including psychological and indirect harm. However, it is not satisfied on the available material that there is a real risk that the applicant children will be subject to significant harm as exhaustively defined in s.36(2A) and s.5J(1), whether through their owns contacts with [Mr A] and/or any steps he may take to pursue their mother.
[22] National Domestic and Family Violence Bench Book, Chapter 4 Dynamics of domestic and family violence, and 4.4.3 Children:
125. As such, the Tribunal concludes that there are no substantial grounds for believing that there is a real risk that either child applicant will suffer significant harm. That is, there is no real risk that they will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering (physical or mental) is intentionally inflicted on them, such as to meet the definition of torture; or to meet the definition of cruel or inhuman treatment or punishment; or to meet the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk that they will suffer arbitrary deprivation of their lives or the death penalty.
126. Accordingly the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the second- or third-named applicant being removed from Australia to Fiji, there is a real risk that they (either or both of them) will suffer significant harm, as required by s.36(2)(aa).
Members of the same family unit

Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations to include children.

128. The Tribunal is therefore satisfied that the second- and third-named applicants are members of the same family unit as the first-named applicant, and that they satisfy s.36(2)(b)(i).
CONCLUSION
129. For the reasons stated above, the Tribunal is satisfied that the first-named applicant meets the criterion set out in s,36(2)(a) of the Act, and is a person in respect of whom Australia has protection obligations.
130. For the reasons given above, the Tribunal is not satisfied that the second- and third-named applicants satisfy either s.32(a) or (aa). However, it is satisfied that they are the children of the first-named applicant and therefore are members of the same family unit as the first-named applicant for the purposes of s.36(2)(b)(i). As such, the fate of their applications depends on the outcome of the first-named applicant’s application. It follows that they will be entitled to a protection visa provided the criteria in s 36(2)(b)(ii) and the remaining criteria for the visa are met.
DECISION
131. The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first-named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii) that the second- and third-named applicants satisfy s 36(2)(b)(i) of the Migration Act.

James Silva

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or

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

International Policy), 14 February 2023.

Policy Centre, 19 October 2017.

[2024] AATA 3677

5 July 2024

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