1932714 (Refugee)

[2024] AATA 2846

1932714 (Refugee) [2024] AATA 2846 (30 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1932714

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Melissa McAdam

DATE:30 April 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 30 April 2024 at 12:10pm

CATCHWORDS
REFUGEE – protection visa – Fiji – political opinion – human and indigenous rights – not allowed to speak against government because of job – late claim of membership of particular social group – unrepresented and application completed by another person – no adverse inference drawn – domestic violence by husband – emotional and physical abuse – husband’s conviction and suspended sentence – limited mobility but still active – applicant and daughters’ continuing financial support – consistent evidence and supporting statements – country information – child’s separate protection visa application refused – developmental condition – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 5L, 36(2)(a), 65, 423A, 424AA
Migration Regulations 1994 (Cth), Schedule 2

CASES
Applicant A v MIEA (1997) 190 CLR 225
Chan v MIEA (1989) 169 CLR 379
Chen Shi Hai v MIMA (2000) 201 CLR 293
MIEA v Guo (1997) 191 CLR 559
MIEA v Respondent A (1995) 57 FCR 309
MIMA v Khawar (2002) 210 CLR 1
Morato v MILGEA (1992) 39 FCR 401

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

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 October 2019 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Fiji, applied for the visa on 21 January 2019.

   CRITERIA FOR A PROTECTION VISA

3. 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.

4. 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.

5. 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).

6. 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.

7. 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

8. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

   Protection visa application

9. The following is a summary of the claims and information the applicant provided in her Protection visa application:

   a.She was born in [Month Year] in [Town], Fiji. She submitted a copy of her Fijian passport.

   b.She is married.  Her husband lives in [Location 1] in East Fiji. She has a son, [Master A], born in [Year] who lives with her husband in Fiji.

   c.She has a sister, [Ms B], who is an Australian citizen and lives in Australia.  She has a sister [Ms C] who is a [Country] citizen and lives in [Country]. Her sister, [Ms D] is a Fijian citizen and lives in Australia.  Her sister [Ms E] is a Fijian citizen and lives in Fiji.  Her brother [Mr F] is a Fijian citizen and lives in Fiji. 

   d.She is Christian.

   e.She went to primary school at [Village] on [Island]. She is educated to [level].

   f.In Fiji she worked for [Employers] as a [Job role].  Her last job in Fiji was as [an Occupation 1] with [Employer 1].

   g.She last departed Fiji [in] December 2018 and arrived in Australia on the same day on a Visitor visa. She had previously been to Australia on three other occasions, in 2017 and 2018.

10. The applicant attached a typed statement to her Protection visa application in which was written the following:

    I left Fiji [in] December last year (2018), coming to Australia as a Tourist and visiting my relatives and friends for the four time since October 2017. I took this as an opportunity to come and be exposed to what life is like outside Fiji. I am married and my husband is in Fiji.

    I came to Australia to visit my friends and relatives and to experience what life is like in Australia. Coming to Australia - Sydney has been an eye opening for me. The environment is very different from my home country. Here I have a lot of Rights and can speak openly and voice my opinion on any matter of concern to me. This is one major reason why I left Fiji. I felt the pressure from being supressed and needed a break from the environment where our Basic Human Rights are not exercised but restricted.

    I needed a break so my family agreed to send me overseas for a holiday, as this might help me, and reduce the pressure and the stress I was going through. It was affecting my health.

    If I go back to Fiji I will continue to suffer psychological and mental stress and depression and my family will continue to suffer because they are the ones who take the brunt of my depression and stress. I blame it on the current government and my aggressive temper that had developed over the years had reached a critical stage because I started physically and verbally abusing my family.

    If I return to Fiji my Basic Human Rights will be deprived and this is one thing that I enjoy in Australia and has resulted in my becoming healthier mentally and physically and less depressed. If I go back home I fear that after seeing and exercising the freedom of speech, that is the right to criticise my government on social media, and to be able to discuss the problems.
    If I return I will be reprimanded because I comment and express my opinion against the government on social Media, the psychological depression that I had gone through over the years in Fiji will continue and is getting worse and can result in my committing suicide and ending my life. Life in Fiji is very depressing for me as all the doors were closing down on me, I do not want this to continue to happen to me as at times I have thought of ending my life because at times I felt that it would be best to end my life, as all the door are closing down on me.

    I experienced harm in Fiji. I have experience a lot of psychological and mental depression in Fiji. This was because of the different government policies that have been put in place by the current government and have caused my depression as I do not have a voice in the country. It is very depressing to have learnt about democracy in school and not to be able to practice it because the government of the day is a dictatorial government and does not believe in democracy. These included the government not recognising Indigenous rights, the Policies that the government wanted to implement, no freedom of expression, and the discrimination of the government policies against us the indigenous of the country. The government is very suspicious and sends out people to be disguised as part and to report on the community. As a former government employee exercising the freedom of expression and the media is what we fear. Government policies against the above mentioned has been very depressing and has mentally stressed me out.

    The Fiji Government is responsible for the psychological harm and depression that I am going through, and this is so because they do not want indigenous Fijian to be recognised as the first of people of Fiji and our cultural and traditional values are not respected by the current Fiji Government. Indigenous rights are not recognised in Fiji. There is not Freedom of expression and the Media is controlled by the government. The country is not a democratic country and youths have no voice. All these limitations and restrictions have resulted in my negative attitude towards life and hence the psychological depression. I come from a very traditional community and our traditional values are instilled into us as children and I do value them.

    … I did not seek help as there were no organisations in place in Fiji to assist us. For the few that are voicing the opinion of the majority and trying to let the government and the world know about the discrimination and mistreatment going on in the country.

    The church community, relatives, and my friends were useful in providing assistance through sharing and counselling and the service they provided help a little but they were also afraid of talking against the government because they fear for their safety from the government. I did not know of any organisation in Fiji that is available to help youths who are suffering in silence and are having psychological trauma like me. The only consolation that I had was the Church and my close friends where I was accepted and heard if I have something to complain about. it was a shoulder to cry on when I cannot get questions answered and when I feel depressed and neglected by the government and by those in authority.

    …  where ever you move within the country the problem is a national problem and relocating is not an option because it will not solve the problem that I have and it is always there. The village was originally a safe place because you are surrounded by relatives and the close family social network is most useful in providing the safety net that I needed to reduce the psychological harm that has been caused by the government.

    I however realised that going to another part of the country will not solve the problem and the harm that I was going through but will only worsen it because the social support safety net that is available in the community will not be there.

    … I will be harmed and mistreated by the government. The psychological harm and depressed life that I went through will be worsened. I now experienced freedom and it is quick healing and a great medicine to me as mental depression that I had continuously experienced in Fiji is slowly disappearing. The government has not changed its stand and has continued to deprive people. We hear and see this in the news and on Social media every day. I know that the thought committing suicide will continue. This psychological depression will continue to harm me. In the last three weeks the situation has become worst off. People are now charged with Sedition when the publically challenge the government.

    Life in Fiji today is very tense and we are afraid as the lead up to the election takes place and people are afraid of what can happen when the election result is not favourable to the current government. This is very stressing for me and had been affecting my health.

    … the authority (Government) will not be able to protect me because it is the very authority or group that is causing this problem and that I am trying to move away from. it is the very government that I am trying to avoid and that is the cause of the harm that I go through every day when I was in Fiji.

    … I will not be able to relocate. The situation only got worse because I had no one to assist and to turn to as my relatives were no longer around me. The problem is a national problem and wherever I go in Fiji I will have to face it. So relocating within Fiji is not an option. Coming to Australia has greatly helped me as I am now able to openly express myself and am able to criticise and comment on issues in Fiji.

    Departmental Interview

11. According to the delegate’s Decision Record the applicant was not offered an Interview.

12. Delegate’s Decision

13. The Delegate was not satisfied the applicant would face a real chance of serious harm in Fiji on the basis of her political opinion or as an indigenous Fijian.

    Information to the Tribunal

    Pre-Hearing Submission

14. On 21 November 2019 the applicant wrote to the Tribunal and stated:

    Right now I can't go back to Fiji because of the current situation at my home country. I was working in [Work sector] for the last 18 years. I resigned last year in May 2018. I started work at [Employer 2] in 2001-2016. Then I moved to [Employer 1] While working at [Work sector], we were not allowed to say anything against the current Government, which we don't have freedom of speeches. We have no rights at all.

    I'm living here with my two daughters. I don't like the way we were treated back in my home country. I have worked for 18 years and the cost of living is high, which doesn't match with my salary. We don't have any benefits any more. Only our Super is our savings back then. I have to do apply for small loans to cater for my living day expenses. And my salary can only cater for my home loan and bills.

    I came here last year cause I have to look for better opportunities and seek protection for the current situation I am facing at my home country. I believe its not fair when you have no rights to fight for your freedom. Its a one way channel directive. I can't go beyond that. I came year last year and I I applied for my protection this year. I was given work rights and study opportunities. I did a course for Certificate 3 [Subject 1]. I have graduated and continuing my certificate 4 currently.

    I started work at [Employer 3] as [an Occupation 2] for the last 4 months now. I also worked at two agencies at the moment doing [job tasks] at [workplaces]. My tax and super are deducted and I'm more than happy to be a part of your Government in its development.  We just moved in to our new granny flat last week and we are paying rent at the moment. And I'm receiving a much better pay, and I'm so thankful for what your Government has to offer. It's a place of many opportunities, which I count me so lucky to be a part of it. At the moment, I can save enough money and help my family to have a life that we don't have back in my home country.

15. On 30 March 2023 the applicant provided the following document copies to the Tribunal:

    -     [Subject 2] qualification Certificates.

    -     The applicant’s NSW Driver’s Licence.

    -     The applicant’s Australian Criminal Intelligence Commission Criminal History Check.

    -     The applicant’s NDIS Worker Check.

16. On 12 September 2023 the applicant provided a medical report regarding her husband in Fiji, dated 6 July 2023.  The report states that her husband has [physical condition], amputation [of body part 1], and dyslipidaemia. The applicant writes that her husband uses a [mobility aid 1].

17. On 15 November 2023 the applicant submitted a second copy of the medical report for her husband and a copy of the Protection visa refusal notice and decision record for her son [Master A].  In the decision record claims are made on behalf of [Master A] that the applicant’s husband was violently abusive to the applicant.

    Other information

18. The Department’s Movement records for the applicant indicate she has travelled to Australia on eight occasions between December 2016 and her last arrival in December 2018.

    Tribunal Hearing

19. The applicant appeared before the Tribunal on 23 February 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s daughter, [Ms G]. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.

20. The following is a summary of the information provided by the applicant at the hearing:

    a.She lives in Sydney with her daughter [Ms G] and son [Master A]. Her daughter [Ms H] lives with [Ms H]’s partner and two children.

    b.Under the previous military rule the applicant and her colleagues did not feel safe in their employment.  Their workdays were reduced and they were not allowed to speak out about things. There was no freedom of speech. This made them fearful. They were afraid of losing their work. The boss would tell them if they talk about anything they would lose their jobs. The applicant wanted to talk about rights and freedom of speech.  She did not like the way they were being treated at work. Some days they would come in to work and they would be sent home because a meeting would happen. This was while she worked for [Employer 1].  The government said their pay would be cut.  They were reducing the number of employees possibly because they had no budget to pay everyone.

    c.Once she and a few of her colleagues, all women from the [work section], were taken to the [Location] for a few months. This was to [do a job task].  They were scared because of the men around them.

    d.Before the military takeover everything was okay in Fiji. The applicant has heard that things are okay again now in Fiji because there is a new government there.

    e.She does not want to return to Fiji because she would have to start from scratch there. She has nothing there anymore.  Her home is no longer her home.   She separated from her husband in 2017 when she came to Australia.  He still lives in their home. His nephew sometimes stays there to help look after her husband.

    f.All the applicant’s children are now in Australia.  Her eldest daughter, [Ms H], came to Australia first. Then the applicant and her daughter [Ms G] came together to Australia. Later her youngest child [Master A] was brought to Australia by her niece.

    g.She does not want to return to Fiji because she fears her husband there. She fears he would beat her again and maybe beat her to death.

    h.She did not mention these things when she applied for a Protection visa or when she first applied to the Tribunal because a woman from the community wrote the applicant’s Protection visa application and the woman did not include the applicant’s information about her fears of her husband.

    i.The applicant started having problems when her two daughters were still small. Her husband would go out drinking and beat her up when he came home.  He spent all their money on drinking.

    j.Her husband would punch her and beat her. In 2007 she had to go to hospital because he beat her so badly.  He came home drunk while she was sleeping. He opened the door of their room, dragged her up and punched and kicked her.  He closed his legs around her neck to choke her. She was in hospital for a day. They bandaged her head and jaw and told her to go to the police station.  After this there was a court hearing at the local magistrate’s court.

    k.The applicant’s husband continued to beat her after this. He was also emotionally abusive and would tell her she was useless.

    l.Her husband used to work in [Employer 4] but he no longer works.

    m.The applicant is fearful of her husband and worried she will have nowhere to stay in Fiji.  Her husband may try to take her back to him.  She does not want to see him and she doesn’t want her children near him.  He would also beat their two daughters, mostly when they tried to keep the applicant safe from him.

    n.The applicant and her daughters would go to her sister’s place when her husband beat the applicant. Her sister is diabetic and has now lost both her legs.

    o.The Tribunal out to the applicant under s 424AA that her daughter had previously stated that she had a good relationship with her father (the applicant’s husband) and that she, the applicant and her other daughter [Ms H] were financially supporting the applicant’s husband from Australia.  The applicant responded that in 2021 her husband asked her and her daughters to help him financially.  He told the applicant he would repay her when he received his super fund payout.  He eventually received FJD$120,000 but he did not repay the applicant the FJD$30,000 she had lent to him.

    p.No one else is able to help her husband financially. Only she and her daughters can help.  Her husband has now blocked the applicant and has threatened to sell their house.

    q.The applicant only helped her husband financially because of her children.  Maybe they feel bad because of the situation he is now in.  She is a good person and if she has money she will give.  She is not sure why her children have an okay relationship with her husband. They feel sorry for him because he has lost his [body part].

    r.If she is in Fiji she does not want contact with her husband but he will try to see and contact her.

    s.Her life has changed here, from the past abuse to a better life.  She has continued her studies and her work. She volunteers. She teaches [Subject] at a [school].

    t.Her husband in Fiji is still mobile. He can get around and he can still drive. He recently bought a car.

    u.Her husband has blocked her on social media. The applicant does not use social media anyway.  She last had contact with her husband last year when he wanted her to send him more money.  He also told her because she would not talk with him he would not repay her.

    v.Later he wrote a message to the applicant apologising for not loving them and for what he had done.

    w.When she and her daughter travelled to Australia her husband thought it was just for a visit and that they would return.  He was not sick at that time. Now he has lost his [body part] his Dad sometimes comes to help him.  His nephew also gives him support.

    x.The applicant was scared to report her husband to the police because she would have nowhere to stay if they lost their house.  He would go to prison again and not be able to work. No one would look after her and the children.  Her husband was paying the house mortgage.

    y.When her husband would beat her she would try to run away.  She would return to him for the children’s sake.

    z.The applicant and her husband are still married on paper.  The applicant is waiting for some divorce forms to be sent to her by Legal Aid in Fiji but has not received them.  The Tribunal put to the applicant that the divorce forms are easily available over the Internet so why hadn’t she already obtained the forms. The applicant responded that in her culture it is shameful to get divorced.  She also was not thinking a lot about divorce as it is not a priority for her. Her and her children’s safety are her priority.  If she files for divorce their home will have to be sold.

    aa.She returned to Fiji several times because her Tourist visas were expiring.  She would stay at her house with her husband because there was nowhere else for her.  She was just there for the children.

    bb.Her family village in [Islands] is very far way and there is nothing there. People live a village life. There is no employment.

    cc.She will try to get a copy of the police reports about her husband and submit them to the Tribunal.  She will also submit copies of her email correspondence with the courts in Fiji in which she was trying to get copies of the court papers against her husband.

    dd.She has fears for her son [Master A] in Fiji. He has been diagnosed with some [developmental condition] and he won’t be well looked after in Fiji. She will send the medical reports about him to the Tribunal. In Fiji there is verbal abuse in schools from students and teachers that [Master A] will be subjected to.

    ee.She has fears for [Master A] because of his development behaviour. One day at school other students were laughing at [Master A] because he did not answer a question and he then just lay on the ground shaking.  She took him to he doctor for medication for his mind to work. She thinks maybe [Master A] is like this because her husband was abusive to her while she was pregnant with [Master A]. She was hiding the abuse inside of herself and did not even go to tell her family. Only her daughters knew about it.

    ff.In Fiji [Master A]’s [developmental condition] may increase. She tried very hard to get [Master A] to Australia. She told her niece to ask her husband very carefully to let him travel here with her.

    gg.In Fiji she will have nowhere to live and nowhere to go.

1. The following is a summary of the information provided by the applicant’s daughter [Ms G] at the hearing:

   a.Her father mostly calls her when he needs money. He is unemployed in Fiji and has already spent his Super payout.  His father (her paternal grandfather) is [Age] years old and relies upon financial support from his children.

   b.[Ms G] gets along well with her father when he is not angry. He gets angry about small irrelevant things. He has been like this since she was young.

   c.When her father is angry he is erratic and acts out his anger violently.  He has hit her in front of other people.  He hit her mother in the face with [an object 1]. [Ms G]’s paternal grandfather tried to stop him at the time.

   d.She remembers her father hit her in 2007 when she was about [Age] years old.  He was hitting her mother and [Ms G] tried to stop him.

   e.Her father has done this many times.  On another occasion she came home late from school and he hit her because she hadn’t called.

   f.Her brother [Master A] lived with her father and father’s cousin after the applicant and [Ms G] came to Australia.

   g.They haven’t mentioned their father’s abuse before because [Ms I] wrote their applications. [Ms I] is in their community but is no longer responding to their calls.

   h.Her father has had his [body part 1] amputated and he uses a [mobility aid 1]. He can wash and dress himself. He gets help with domestic chores, mostly from his cousins.  He has just bought a car and can drive it with one [body part 1].

   i.Her father was mostly violent to her mother, and to her sister and herself. She did not ever witness him being violent to [Master A] but he may have been verbally abusive to [Master A].

   j.She would often stay at friends’ places because of her father’s violence.

   k.She received a head injury from her father on one occasion.  He has also thrown [an object 2] at her head and has slashed her with [an object 3] and [objects 4].  She would go to her aunt’s place afterwards. She didn’t report her father because she didn’t want him to go to jail.  She felt bad for him in a way.

   l.She sends him money when he can, mostly to buy himself food. Her father is able to ‘guilt-trip’ her.  Her father doesn’t talk about the abuse. In Fiji people don’t talk about it, someone just apologises and that is it.  Her father has done this countless times and then done an apology. But he would keep being violent.

   m.She can tell by the way her father talks that he is still the same man as when they left Fiji.

   n.Her father can still hurt them even though his [body part] has been amputated. He uses [mobility aid 2] and can walk and drive.

   Post-Hearing Submission

2. On 18 and 26 March 2024 the applicant submitted the following documents to the Tribunal:

   -     Medical documents in relation to the applicant’s heart condition.

   -     The applicant’s Fijian [Employer 1] Contract of Service for employment as a [Job role].

   -     A letter from the applicant’s sister [Ms J].

   -     A letter from the applicant’s former neighbour, [Ms K].

   -     A letter from [L], a member of the applicant’s Fijian [church].

   -      A letter from a former colleague of the applicant, [Ms M].

   -     A letter from the applicant’s niece, [Ms N].

   -     A letter from the applicant’s sister [Ms O].

   -     A letter from an officer of the [Location 2] Police confirming that a report was lodged at [Location 2] Police Station [in] November 2007 by the applicant that she was assaulted by her husband and received injuries. Her husband was tried and convicted at court [in] December 2007 and sentence to 9 months imprisonment, suspended for 3 years.

   -     A radiology referral for the applicant, dated [November] 2007, from a hospital in Fiji, showing she had x-rays to her face, skull, jaw and right hand.

   -     A letter from the applicant’s nephew to the [Hospital] urgently requesting copies of the applicant’s medical records.

   -     A behavioural assessment for the applicant’s minor son [Master A].

   -     School reports for the applicant’s son [Master A].

   -     An invoice for a medical consultation.

   -     A pathology referral for the applicant’s son [Master A].

   -     A health summary regarding the applicant’s son [Master A], by his GP, detailing he has [a condition].

   -     A health summary regarding the applicant, by her GP

   -     A family care plan in relation to the applicant’s grandchildren.

3. In the applicant’s sister, [Ms J]’s letter she writes the following:

   … My younger sister [the applicant], has always been abused most of her life when she got involved with her husband. The year 202 to 2018, I had always witnessed [the applicant] turning up at my doorstep only when she was physically hurt and bruised. It's sad to say that whenever she argues with her husband, she usually gets injured, she used to run away bringing her 2 daughters ([Ms G] & [Ms H]) along. She comes home and then I will have to take care of her by washing her face and applying ice on her bruised body. I had my family also witnessing this. I had always told her to report the matter and take legal action but she would think of her kids cause the kids needed both parents support. I noticed that every fortnight, my sister and her 2 daughters would be home for the weekends, this is because my sisters husband was always coming home drunk all because he receives his paychecks. This made the 2 kids scared of their dad and it was like a normal routine for the fortnight weekends. This was ridiculous for me because it was an ongoing scene and very disturbing.

   I made an effort to always keep them safe, most of the time the kids uniforms were always at my place because they had to attend school. They would come home and stay for a few days or weeks then go back home when my sisters husband comes and picks them up from my place. My younger sister had those abusive dramas going on which made the kids reluctant to return home. My sister was always on her feet and alert cause her husband was scary. I for one would say, my sister and her 3 kids ([Ms H], [Ms G] & [Master A]) deserve the happiness they have now in Sydney for the long run. It has been years of torture and the kids know all about these experiences.

4. In her letter, [Ms K] writes:

   My name is [Ms K] and I reside in Sydney, Australia since July 2016. I am writing this witness testament for [the applicant] and the extent of domestic violence that I saw when I was living at …  Fiji Islands as her immediate neighbour.  I have lived at … with my family since November 2000. [The applicant] must have moved into the suburb few years after me and we established a bond straight away because we both were from the same village in [Islands] or at least our family heritage and line was from there.

   Ever since I have known [the applicant], she has been a working woman with 3 kids (2 girls and a boy) all of which now reside in Sydney with her as I understand it. She is kind, compassionate and a very hard-working mother.

   Over the years, I have personally witnessed [the applicant] experiencing domestic violence and aggression from her husband [Mr P]. These incidents were very serious and quite confronting to a point where the home became very unsafe for [the applicant] and her kids. There was one particular incident that was very serious, and it happened on 1st November 2007 in the afternoon when [Mr P] was hitting and punching [the applicant]. He took a big stone as well and was hitting [the applicant] in her head. [The applicant] was obviously very scared, traumatised, and shaken. There was a fence that separated our properties and poor [the applicant] had jumped that fence over to our side and fell as well sustaining more injuries to what she already had. My husband and I let [the applicant] inside the house completely, washed off the blood from her head and got her to sleep and rest. When she woke up, we called some of her relatives who came to pick her up and subsequently took her to the police station, hospital and then to their home because her own home was unsafe for her.

   This behaviour displayed by [Mr P] was unacceptable and from my experience, I do strongly believe that not just her home but Fiji as a country is unsafe for [the applicant] and her kids. [Mr P] is a well-connected man, and he could go to any length to cause this family harm.

5. In the letter from [L] it is written:

   I have known [the applicant] for more than seventeen years as a member of the same community in the … Housing Subdivision and also as a member of the [Church] group in the same community.

   We used to live in the same street here in Fiji and I could recall and confirm that on three occasions she came knocking at home in the early hours of the morning with her two teenage daughters seeking shelter, protection and assistance after she was physically abused by her husband [Mr P] at their home when he came home intoxicated.

   On one occasion she was badly bruised and injuries were physically seen on her face and other visible parts of the body.  I was [an Occupation 3] at that time so we kept them at home and refer the case to the relevant police station where the case was dealt with.

   I fully support her in whatever endeavor she may put her mind into as I believe that she is an honest and trustworthy person who happen to be with an abusive spouse. …

6. In the letter from [Ms M] she writes:

   [The applicant] and I were colleagues at [Employer 2] for six years. During our employment, we worked together in the [work section], and our friendship grew stronger when we discovered that we both hailed from the same province.

   In addition to our professional relationship, I am a part-time social worker, offering my assistance to [the applicant] by providing a listening ear and offering advice to help her navigate challenging situations.

   During our interactions, I observed that [the applicant] would sometimes report to work with bruised eyes and visible black and purplish bruises on her arms. She confided in me that she was experiencing domestic violence at the hands of her husband, who was a womanizer and frequently subjected her and their children to physical and verbal abuse.

   [The applicant]’s husband showed little interest in spending quality time with their children and rarely supported the family financially, leaving [the applicant] to shoulder the responsibility of nurturing and providing for their well-being.

   As workmates and close friends, [the applicant] and I would occasionally meet at her family home on [Road] to discuss our shared struggles, as we both endured abusive relationships with our husbands.

   Despite the challenges, [the applicant] remained resilient and eventually made the courageous decision to move abroad with her children in search of a better and safer future.

   I wholeheartedly support [the applicant]'s pursuit of permanent citizenship for herself and her children in Australia. Granting them permanent residency would afford them the opportunity to thrive and excel in a supportive environment, free from the cycle of abuse and hardship they endured in Fiji.

7. The applicant’s niece writes:

   …  I, [Ms N] (niece of my aunt – [the applicant]) am reaching out to seek your legal guidance and assistance regarding distressing incidents I witnessed involving my aunt and her husband ([Mr P]).

   Regrettably, I was present during a few domestic altercations between my aunt and her husband, during which he exhibited aggressive and abusive behavior towards her. Witnessing these incidents deeply troubled me and am deeply concerned for my aunts safety and well-being.

   My story begins as the past few years were years of traumatization. I lived at my aunts place for a couple of years during my studies at [University] where I usually witnessed the verbal and physical fights between my aunt and her abusive husband. These incidents occurred in the house even outside the compound in the presence of my aunts and uncles 2 daughters [Ms G] and [Ms H]. Many incidents had happened but one of the worst ones I remember was during a drinking spree, where my aunts husband had his friends and workmates over to the house porch and boozed for 3 solid days going to an extent when my aunt had informed them to stop drinking. My aunts husband was so intoxicated and got so frustrated and ran after her in the house and started beating her till she got hurt in the head and bleeding, I watched with my aunts 2 daughters on that scene. My aunt had to jump off the window and over the gate running for her life to go to her older sister's house close by. This is reality and we were still young and scared to even report him to the police.

   My mom ([Ms O]) who resides in [Country] (older sister of my aunt- [the applicant]) helps in any way mainly financially cause my aunt had so much going on with her family. One of the biggest challenges for my aunt was her recovery from that head injury. After recovery, she decided to apply for [Country] Visa 3 times but unfortunately, all 3 were rejected. The other option was the Australian Visa which she applied for and got through; this was a victory road getting away from her abusive husband. My aunt had to struggle so much and fortunately, her and her 2 daughters ([Ms G] & [Ms H]) made it across to Australia to have a better life. Life was hard because my aunt also had a son ([Master A]) who was staying with my aunts husband and not attending school at all. My mom & aunt had decided to take him ([Master A]) away to Australia for his education and a better future. Since I was working here in [Town], I was told to get all of [Master A] 's documents and paperwork done to get him to Australia, fortunately, in the year 2019 [Master A] was granted a visa.

   I had to go and ask for permission from my aunts husband for [Master A] to go with me to Australia for holidays during my work leave for Christmas and New Years. At this very moment it was tough begging him to take [Master A] just for 2 weeks and will make sure [Mr A] returns to Fiji. He trusted me and the conversation we had. This was the opening door for [Master A] to go and be with his mom and 2 sisters to be well looked after. Given the seriousness of the situation, I am writing to seek advice on the following legal action available to my aunt to ensure her safety and obtain protection from her abusive husband.

8. The applicant’s sister [Ms O] writes:

   I, [Ms O] (older sister of [the applicant]) would like to extend my full legal support towards the protection of disturbing abusive incidents that I had been witnessing from my youngest sisters abusive husband ([Mr P]).

   Life is always challenging as days go by. It's time for me to share my concerns on how [the applicant] was a survivor of domestic violence. As I recall, from [Year] onwards, she was in a relationship with her husband whereby she conceived and had their first daughter ([Ms H]). Every Fridays, [the applicant] and her oldest daughter ([Ms H]) would come to my workplace & ask for food, I always feel sorry for my youngest sister and her daughter so I had no choice but to give them a room at my house. During this period, I noticed that ([Mr P]) had a habit of going to work Friday mornings and returning Sunday nights after partying with friends and workmates. [The applicant]’s Husband [Mr P] was tbe only breadwinner and he took advantage of it becoming irresponsible and continuing to abuse my younger sister with verbal and physical abuse. However, at this very moment, [the applicant] was carrying their 2^nd daughter ([Ms G]). [The applicant] gave birth to the 2^nd daughter whom I had named after my only daughter ([Ms N] [the message is then cut off].

   Country Information

9. DFAT’s most recent ‘Country Information Report’ on Fiji, published in May 2022, contains the following:

   Fiji is generally stable and secure. The most recent elections in 2018 were orderly and free from violence. Crime rates, especially for violent and organised crime, are generally low. The risk of terrorism is low. Organised crime exists in Fiji, but it is not large-scale and is unlikely to affect people’s day-to-day lives. Some alcohol-related street violence occurs. Domestic violence is a serious problem. Accusations of police violence are commonly reported and regularly investigated.

   … The Constitution guarantees freedom of speech, expression, assembly and association. However, each of these rights is subject to broad caveats and can be limited by laws relating to national security, public safety, public order, public morality, public health and the orderly conduct of elections.

   …

   Women

   Fiji is a traditionally male-dominated society and traditional gender roles are well-entrenched. According to World Bank figures, the participation rate for women is the lowest in the Pacific region at 35 per cent of the total labour force (by contrast, Australia’s rate is about 46 per cent of the total labour force). These figures are from 2019 and the impacts of the pandemic on the largely feminised tourism sector may have made the situation worse.

   The 2021 US Department of State Human Rights Report notes that there are no laws that prevent women from participation in political processes, but that traditional gender roles restrict that participation in practice for iTaukei women. Similarly, iTaukei women are entitled to inherit land equally to men, but in practice this does not occur and many women work on land that is owned by their male relatives.

   Violence against women and girls

   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.

   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. Spousal rape is illegal under Fijian law. In April 2021, a man who sexually assaulted his wife when she ‘refused intimacy’ was sentenced to a 6-year and 10-month prison term by the High Court in Lautoka.

   Police protection is available but not consistently. Some police stations do not have the equipment or transport to deal effectively with cases of gender-based violence. Women who seek help from advocates (for example, the FWCC Centre runs a hotline) may receive more assistance.

   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.

   An audit by the Fiji Auditor General in 2019 found that there is ‘inconsistency’ in the application of legislation that prohibits violence against women. It notes ‘pressure on women to reconcile with their husbands/partners’ by police or society, as well as a lack of knowledge among women about their rights. Fiji Police have a ‘no drop’ policy for domestic violence. This means that cases cannot be dropped by police nor be withdrawn by victims; they must be investigated. This is to prevent victims from being pressured by family to drop the cases. In practice, the Auditor General found (and in-country sources confirmed to DFAT) that the policy was not implemented in all cases and that police did sometimes drop domestic violence cases or were unhelpful or even hostile to victims.

   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.

   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.

   …

   Police

   The Fiji Police Force (FPF) is a national police force that covers the whole country. The US Department of State Overseas Security Advisory Service 2020 Crime and Safety Report assesses Fiji police as ‘professional’ and notes recent improvements in training and accountability. It notes that police may not be based in vehicles and may not arrive in time to disrupt crimes in progress but assesses that ‘victims of crime can expect fair treatment with dignity’.

   Police are generally well-resourced by the Government and receive funding and training from overseas aid partners. The police are, in general, disciplined (but see comments on violence below). Policing is conducted on a community policing model and police are generally actively engaged with the communities they serve.

   Corruption in the FPF is reported, but DFAT understands that it is not widespread. There are some allegations of corruption and DFAT is aware of pockets of corruption that have later been exposed and investigated. Complaints about the FPF are made to the Human Rights and Anti-Discrimination Commission.

   Policing in outer islands and more remote places is more difficult because of the greater influence that the chief-based hierarchy has in the outer regions. Police are generally not deployed to their home communities to avoid conflict with traditional hierarchies.

   The Fiji Police Force overall has the capacity to protect individuals from societal harassment, discrimination, and violence, and police are usually effective in carrying out their role in day-to-day crime detection, investigation and prevention.

   …

   Relocation

   There are no legal limits to relocation, but Fiji is geographically small and land is held tightly in kin groups, which limits internal relocation in practice. Even Suva, the largest city in Fiji, has only a small suburbia and few relocation options. Movement to another island is possible but in practice most relocation is to urban centres from other islands. Due to the COVID-19 pandemic and Fiji’s reliance on the tourism and agriculture sectors, relocation may not be practical to locations where no jobs exist. Successful relocation would depend on an individual’s skills and prospects in the place to which they are relocating.

1. Available sources indicate that Fiji has one of the highest rates of violence against women and girls in the world. A 2011 survey published by the Fiji Women’s Crisis[1] found that only about half of the women living with violence (53%) had ever told anyone about it. When they did tell someone, they usually turned first to family members or friends. 40% of women who experienced violence had left home temporarily at least once due to the violence, but many had not disclosed the true reason for leaving. Only 24% had ever gone to an agency or formal authority for help, and the police and health services were usually the first agencies that women go to. Almost three in five women (58%) believed that people outside the family should not intervene if a man mistreats his wife. It noted these entrenched community attitudes were a serious disincentive to women disclosing violence and taking steps to deal with it. When women did take the very difficult step of asking for help or leaving home, the evidence showed that the majority did so because the violence was extremely serious, they could not endure any more, or because they were badly injured.  In the survey, the most common situations mentioned by women where violence occurred included jealousy by their husband, the wife’s disobedience, and husband’s desire to show he was the boss, in addition to drunkenness. It found that the high rates of both partner and non-partner abuse showed that the use of violence as a form of punishment and discipline is accepted within many families and communities. Women themselves minimised the impact of the violence on their health and well-being; many saying that they had not sought help because the violence was ‘normal’.

   [1] 'Somebody's Life, Everybody's Business! National Research on Women's Health and Life Experiences in Fiji (2010/2011): A survey exploring the prevalence, incidence and attitudes to intimate partner violence in Fiji', Fiji Women's Crisis Centre (FWCC), 11 December 2013.  

2. More recent sources published in 2020 and 2021 indicate that the rates of violence against women remain high in Fiji, with gender-based violence (GBV) being deeply rooted in traditional behavioural norms of a patriarchal society.[2] A 2020 report stated that violence against women in Fiji was now a major national crisis with two out of three females in Fiji subjected to physical or sexual violence in their lifetime.47 In October 2020, the Fiji Police recorded 1545 cases of assault-related offences against women and 99 cases of sexual offences for that year.[3]

   [2] ‘EU Annual Report on Human Rights and Democracy in the World 2021 Country Updates: Fiji’, The European External Action Service (EEAS), 19 April 2022; 'Assessment Of Women’s Access To Justice In Fiji During Covid-19 Pandemic From January To May 2020', Fiji Women's Rights Movement (FWRM), 28 September 2020

   [3] N. Neimila, “Gender-Based Violence ‘A Global Pandemic’”, The Fijian Government, 16 October 2020.

3. NGOs have also reported that, where domestic violence cases are prosecuted (more often in instances where actual bodily harm has occurred), perpetrators only receive a sentence of 0.82 years on average. The Sentencing and Penalties Act 2009 provides an opportunity for judges to enhance punishment for domestic violence cases based on aggravating factors, but case law analysis on sentencing decisions shows that this Act has not had a tangible effect on the final sentences imposed.[4]

   [4] ‘Report of the Auditor-General of the Republic of Fiji. Coordination of Actions on Elimination of Violence against Women. Performance Audit' (Parliamentary Paper No. 129 of 2019)’, Office of the Auditor-General Republic of Fiji, Parliament of Fiji, 30 August 2019.

4. In the 2020 Sisters for Change report, it noted that, of the number of domestic violence sentencing decisions reviewed in Fiji between 2000 and 2018, 46.4% of sentences were fully or partially suspended. Custodial (prison) sentences were not given in 40.5% of cases and the average length of sentence was 2.3 years between 2000 to 2009, 1.34 years between 2010 to 2014, and 1.68 years between 2015 to 2018. [5]

   [5] J. K. Singh, H. Singh, E. Thomas & N. Druce, ‘Comparative legal review of the impact of gender stereotyping on judicial decisions in violence against women cases across the Pacific Island Region’, Sisters for Change (UK), 2020.

5. In 2013 the FWCC noted there was much pressure on women to reconcile with their husbands/partners following incidents of domestic violence, rather than seek access to justice and such pressure, in part, came from the police, the Family Court and other Courts.[6]   In 2017, FWRM interviewed 49 women identified as having had a family law issue or having experienced violence and had approached the police or courts. 60% said the police told them to resolve the issue within the family or village or the police did not take them seriously.[7]

   [6] FWCC Report 2013, p.17.

   [7] FWRM Report 2017, p.77.

6. A 2019 paper by the UN Development noted that traditional and informal dispute resolution is firmly embedded in the social and legal culture of Fiji. Maintaining law and order, harmonious and peaceful living in the community as well as ensuring that traditional leadership is upheld and respected are key objectives of the iTaukei Affairs Act. Section 83 of the iTaukei Affairs Act stipulates that ‘For the purposes of peaceful co-existence, traditional reconciliation shall be encouraged at all times, however, this shall not distract the due process of law where necessary’. Traditional justice mechanisms in Fiji takes different forms. In minor disputes, an apology – o soro – is sought in order to settle the issue informally within or between families. Other dispute resolution processes follow more structured procedures with assembly of the disputing parties and a neutral person or persons who decide the matter on behalf of the community. An example is the Bulubulu ritual of reconciliation. Bulubulu means ‘to bury the past and make peace for the future’. The ceremonial procedure usually involves the presentation of traditional items of wealth or status such as tabua (whale’s tooth) and yaqona (kava). An admission of wrongdoing is followed by a request for forgiveness. The offended party is obliged by custom to reciprocate in an equally conciliatory manner. Traditional leaders, elders (qase), parents, and the church play an important role in the prevention of crime and conflict in the village and village Councils and their subcommittees have an important role in the maintenance of the social order. Urban communities have shifted to more modern forms of dispute resolution, with the traditional dispute resolution mechanisms still applied in rural communities but even these communities have seen a decrease in the role and importance of traditional justice. Nonetheless, the paper noted that Bulubulu, although decreasingly, is still used as a substitute for criminal prosecution and punishment of cases of GBV.[8]

   [8] Justice Needs and Satisfaction in Fiji’, United Nations Development Programme (UNDP), October 2019.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant submitted her Fijian passport. On the basis of this document and the applicant’s oral evidence the Tribunal is satisfied she is a citizen of Fiji. The Tribunal assesses her claims against Fiji as her country of nationality and receiving country.

8. In her initial Protection visa application the applicant claimed to fear psychological harm because of the political situation in Fiji.  She has subsequently stated her application was written by a third person. She described problems with the political atmosphere at the time she worked in Fiji but considered the problems no longer present given the change in government there.  The applicant stated at hearing that her current fears in Fiji relate to having no home in Fiji and violence from her husband. The Tribunal therefore accepts the applicant does not fear harm in Fiji on the basis of the political situation or government in Fiji.

9. The applicant has provided a substantial amount of evidence regarding her claim to fear family violence from her husband in Fiji.  In assessing the applicant’s claims the Tribunal makes reference to the AIJA’s National Domestic and Family Violence Bench Book[9] (the AIJA Bench Book), which provides comprehensive guidance to the judiciary about domestic and family violence matters in Australia.

   Credibility

   [9] Australasian Institute of Judicial Administration, National Domestic and Family Violence Bench Book, last updated June 2023, >

   The Tribunal notes that the applicant made no mention of experiencing and fearing harm from her husband prior to her Tribunal hearing, apart from a reference in an email to the Tribunal regarding her son’s visa application.  She did provide some more details about the violence by her husband in a written letter to the Department on 4 January 2023, in relation to her son’s Protection visa application. She did not raise the claim at all in her own application to the Department. 

10. Section 423A of the Act requires the Tribunal to draw an adverse inference as to the credibility of an applicant’s claim, where an applicant raises a claim 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 why the claim was not raised.

11. The applicant’s reason for not raising the claim before the Department was that her application was badly prepared by a person from the community who did not include it.

12. The Tribunal acknowledges that the applicant has been unrepresented throughout the application process and that the community person who prepared her initial Protection visa application appears to have been careless or indifferent to providing competent and lawful assistance.  The Tribunal also acknowledges it may not be well understood that fears of family violence can engage Australia’s international protection obligations. The Tribunal also notes that people who suffer family violence may have an understandable reluctance to speak about such highly personal and distressing matters.  As the AIJA Bench Book states:

    A victim’s experiences of and vulnerabilities to domestic and family violence may affect their capacity to voluntarily consent to or willingness to disclose the violent behaviours, or other matters resulting from their relationship with the perpetrator, for example matters arising in relation to a protection order, a breach of a protection order, a parenting order, other legal remedies or proceedings, financial dealings and immigration processes.[10]

    [10] Impact on consent and disclosure - National Domestic and Family Violence Bench Book (aija.org.au)

13. In view of the above the Tribunal is satisfied that the applicant’s reasons for not raising the family violence claim in her application to the Department are reasonable.  The Tribunal therefore does not draw an inference unfavourable to the credibility of the claim simply on the basis of the delay in raising it.

14. The Tribunal notes that despite the claimed abuse from her husband the applicant and her daughters have supported him financially from Australia.  When the Tribunal questioned her about this she responded that they felt obligated to do so after he had his [body part 1] amputated and lost his employment.  She explained she has had no other contact with her husband apart from sending him money and that he is angry at her for not speaking to him.  Her daughters also feel compelled to support their father because they feel sorry for him and he retains a parental bond with them.

15. The Tribunal acknowledges that family relationships can be emotionally complex and that it is not implausible a person would continue to provide some support to a close family member who has a history of abusing them.

16. At hearing the applicant gave simple but coherent and personalised evidence about the violence and other abuses she had suffered at the hands of her husband in Fiji.

17. The applicant has also provided several written witness statements from relatives and friends who witnessed her husband’s violence and the impact of his behaviour upon the family.  She further provided a letter from the Fijian police which confirmed an incident of abuse by the applicant’s husband.

18. The Tribunal has also taken oral evidence from the applicant’s daughter [Ms G] at the hearing and from her daughter [Ms H] in her related review application. They both provided evidence consistent with the applicant about the history of abuse by the applicant’s husband and particular episodes of his violence.

19. In view of the persuasive quality of the applicant’s and her family’s testimonies, together with the written witness and police statements, the Tribunal accepts that the applicant has suffered a history of violent and controlling abuse by her husband in Fiji.

    Fear of Harm on return to Fiji

20. For a person’s fear of persecution to be well-founded, there must be a real chance that, if the person returned to the receiving country, the person would be persecuted. The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Refugees Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance. It is clear from the Explanatory Memorandum to the Bill introducing s 5J, that Parliament intended that this same threshold be used to assess claims under s 5J of the Act.[11]

    [11] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), p.171.

21. The Tribunal has taken into account the High Court’s guidance in MIEA v Guo (1997) 191 CLR 559, ‘past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence.’ While living in Fiji the applicant was subject to family violence by her husband. There is no indication that he has moderated his behaviour or attitudes to family discipline and control. He has continued to make demands of the applicant, with express threats, since she has come to Australia.

22. The Tribunal accepts that if the applicant returns to Fiji she will be readily exposed to contact from her husband.  She will either be compelled to live in his home or, if not, he will be able to approach her place of residence.  She will also inevitably encounter him generally within the [Town] community.

23. Given the applicant’s husband’s continuing emotional and financial reliance upon the applicant and her daughters; traditional family expectations in Fijian society; the closeness of Fijian society, and the geographical smallness of the country the Tribunal considers it likely the applicant would have significant contact with her husband in Fiji, even if she does not live in his household.

24. In these circumstances the applicant would be exposed to a threat of violence from her husband, particularly if he becomes angry with her.  The Tribunal accepts the applicant’s and her daughter’s evidence that her husband has a predisposition to make demands of his family and to become angry if they are not readily met. The Tribunal also accepts the applicant’s husband’s anger can readily escalate to physical violence.

25. The Tribunal notes that the applicant’s son was brought to Fiji against her husband’s wishes. The Tribunal notes that the applicant’s husband’s [Social media] account contains numerous photographs and messages about the applicant’s son which express a high level of focus upon and attachment to his son. In contrast there is little content about his daughters.  He also uses a photograph of his son as his own profile picture.

26. The Tribunal considers that if the applicant were in Fiji the applicant’s husband would likely be confrontational about her involvement in keeping their son in Australia, and not facilitating his return to Fiji. The Tribunal considers this just one example of a likely situation which may arise in which the applicant’s husband could react angrily and violently to the applicant.

27. The Tribunal observes that there has been a significant change in the applicant’s husband’s circumstances since her departure from Fiji.  About three years ago his [body part] was amputated due to [physical condition] complications. The Tribunal therefore considers that the applicant’s husband’s ability to cause and threaten violent harm is reduced by his now lack of full mobility. 

28. The applicant and her daughter gave evidence that the amputation has resulted in her husband losing his job but not rendered him inactive or a non-threat. They stated he is still able to do activities such as drive a car and that he uses both [mobility aids 1 and 2] to get around. This evidence was spontaneously given by both of them and the Tribunal accepts that the applicant’s husband retains some mobility and activity with the use of aids and support.

29. The applicant and her daughter gave evidence, which the Tribunal accepts, that in the past her husband has used objects which were at hand as weapons to beat them.  For example he has used [an object 1], which is a large heavy wooden object, to hit the applicant in the face. He has also used [objects 3 and 4].

30. It may be that the applicant is able to successfully escape her husband if he becomes angry and violent, before he can hurt her.  However the Tribunal considers there is a real chance that the applicant will not be able to do so on occasion given he retains some mobility, the close proximity of personal confrontations and his propensity to utilise available objects to injure the family.

31. In assessing the chance of harm to the applicant on return to Fiji, the Tribunal also takes into consideration available information regarding culture and attitudes towards women and the prevalence of family violence in Fiji.  As DFAT stated in its 2022 assessment “Fiji is a traditionally male-dominated society and traditional gender roles are well-entrenched.”[12] The United Nations Development Program has referred to violence against women as at ‘near epidemic’ levels.[13]

    [12] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Fiji’, 20 May 2022.

    [13] United Nations Development Program, ‘Fiji Security Sector Governance’, January 2019.

32. Based on all the above the Tribunal is satisfied there is a real chance, in that it is a substantial chance not remote or fanciful, that the applicant will again be subjected to serious physical harm from her husband if she returns to Fiji.

    Reasons for the harm feared

33. To be persecution within the Act the essential and significant reason(s) for the harm must be attributable to the applicant’s race, religion, nationality, membership of a particular social group or political opinion.[14]

    [14] Section 5J.

34. Australian courts have consistently found that ‘particular social group’ should be interpreted broadly[15] and the courts on the whole have accepted that women, or a subgroup of women, can comprise a social group.[16]  

    [15] Morato (1992) 39 FCR 401 (Lockhart J); Minister for Immigration and Ethnic Affairs v Respondent A (1995) 57 FCR 309; Chen Shi Hai v MIMA (2000) 201 CLR 293.

    [16] MIMA v Khawar (2002) 210 CLR 1.

35. The Tribunal is satisfied that ‘women in Fiji’ comprise a particular social group as defined in the Act[17] in that they share a characteristic, their gender, which is not a fear of persecution.

    [17] Section 5L.

36. In Applicant A v MIEA (1997) 190 CLR 225, Gummow J said that the phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution and the objectives sought to be attained by it. As further stated by the High Court in Chen Shi Hai v MIMA decision-makers must evaluate the postulated connection between the asserted fear of persecution and the ground, keeping in mind the policy of the Refugees Convention, and the fact that human conduct is rarely, if ever, unidimensional.[18]   

    [18] Chen Shi Hai v MIMA (2000) 201 CLR 293, (Gleeson CJ, Gaudron, Gummow and Hayne JJ),

1. The Tribunal notes that the applicant’s husband has also committed violent and controlling acts upon the applicant’s daughters.  There is no indication that he has been physically violent to his son but the applicant, and her daughter, have stated that he may have been verbally abusive to their son.

2. In relation to what is now understood as common motivation for family and domestic violence, the ‘Our Watch’ submission to the 2021 Commonwealth government inquiry stated:

   ‘[they had] surveyed all of the nationally and internationally available literature on the drivers of violence against women. … What we found is that the key drivers of violence are gendered. They are about attitudes to gender. They are about structural gender relations and structural relations of power between men and women. These play out in many different ways.’[19]

   [19] Dr E Partridge, Our Watch, Submission to the Commonwealth government ‘Inquiry into family, domestic and sexual violence’, March 2021.

3. The UN Declaration on the Elimination of Violence against Women also identifies intimate partner violence as the product of historically unequal power relations between men and women and a primary manifestation of discrimination against women.[20]

   [20] Declaration on the Elimination of Violence against Women, GA Res 48/104, UN Doc

4. On the basis of the applicant’s personal circumstances, her husband’s gender-selective behaviour, available country information about the entrenched male dominant culture in Fiji, and the available expert literature regarding the nature of family and domestic violence, the Tribunal is satisfied that an essential and significant reason for the serious harm the applicant is at risk of from her husband is her membership of the particular social group of women in Fiji. 

5. The Tribunal is also satisfied that the harm the applicant is at risk of involves systematic and discriminatory conduct in that it would be done to her selectively and intentionally.

   Available Effective Protection

6. A person is taken not to have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s 5J(2) of the Act. 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).

7. DFAT states in its 2022 report that while protection for women is available it is not consistent.  Some police stations lack equipment or transport to deal effectively with cases of gender-based violence.[21] As noted above, while there is a no-drop policy, this is not enforced consistently.  The available country information also indicates that the police may at times be reluctant to intervene in matters of family violence and that reconciliation may be promoted over protection. 

   [21] DFAT Country Information Report Fiji, 20 May 2022

8. There is also clear information that the police do act on occasion and the courts do prosecute.  The applicant has given evidence of the police and courts taking action against the applicant’s husband when he perpetrated a particularly severe attack against the applicant in which she nearly lost her life.

9. However despite this the applicant’s husband continued to be physically abusive and controlling towards the applicant.  It seems likely it was the severity of her husband’s assault that resulted in that one-time action by the authorities.

10. The applicant gave evidence that she chose to stay at her aunt’s place during her father’s violent episodes and not alert the police, as she did not want him to be imprisoned again.  This may indicate that while action by the state authorities was potentially available, the applicant chose not to initiate it. However if she had contacted the police their response would eventuate after her husband became violent and would not actually remove or prevent the immediate threat of his violence. It appears understandable the applicant would not resort to action which she believed could not keep her safe but could render herself and her daughters homeless, in the event her husband was imprisoned for some months and could not work to pay the home mortgage.

11. The available country information supports a finding that state protection is potentially available however not reliably or consistently so. It also highlights the concern that the state resources are not effective in protecting women from incidents of family violence.  If the resources are utilised it is to make arrests and prosecute after acts of violence.   

12. In view of the applicant’s and her family’s personal experiences and the available country information regarding both the uncertainty of state responses and the high level of family violence occurring in Fiji, the Tribunal is not satisfied that there is effective protection available to the applicant in Fiji.

    Area of risk

13. Under s 5J(1)(c) of the Act, the real chance of persecution must relate to all areas of the relevant receiving country.

14. The Tribunal is satisfied that there is a real chance of harm to the applicant in her home area, Suva, in Fiji.  The Tribunal considers if the applicant tried to live elsewhere in Fiji her husband could and would eventually find her, within the reasonably foreseeable future.  The Tribunal acknowledges that even with his [body part] amputated the applicant’s husband retains some mobility and is able to travel by car. There is no indication he could not also be able to do so by plane or boat.  The Tribunal considers he would have motivation to locate and go to the applicant as he sees her as belonging to him as his wife, and as a source of financial support and connection to his family.

15. The 2022 DFAT Report on Fiji states that for women fearing family violence “relocation is not necessarily helpful; Fiji is relatively small and sometimes people can be tracked down through kinship networks.” The report also adds that “Fiji is geographically small and land is held tightly in kin groups, which limits internal relocation in practice.”

16. Considering these observations about Fiji together with the applicant’s personal situation the Tribunal is satisfied that the real chance of persecution relates to all areas of the country, as the applicant’s husband could readily locate her and travel to find her in other parts of the country.

17. On the basis of the above reasoning the Tribunal is satisfied the applicant has a well-founded fear of persecution in Fiji as defined by s 5J of the Act.

    Section 36(3)

18. Subsection 36(3) of the Act has the effect that where a non-citizen in Australia has a right to enter and reside in a third country, Australia will not have protection obligations in respect of that person if he or she has not availed himself or herself of that right unless the conditions prescribed in either s 36(4), (5) or (5A) are satisfied, in which case the s 36(3) exclusion will not apply.  The conditions prescribed in s 36(4), (5) or (5A) will be met where a person has a well-founded fear of being persecuted or faces a real risk of significant harm in that country, or has a well-founded fear of refoulement from that country to a place where they face such treatment.

19. There is no indication before the Tribunal that the applicant has a right to enter and reside in any third country. The Tribunal therefore finds that the applicant has no such rights and is not excluded from Australia’s protection obligations by s 36(3) of the Act.

    Conclusion

20. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

    DECISION

21. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

    Melissa McAdam
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

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

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …

    
    

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