2006964 (Refugee)

2006964 (Refugee) [2024] AATA 1811 (18 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2006964
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Victoria Price
DATE:18 March 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies 36(2)(aa) of the Migration Act.

Statement made on 18 March 2024 at 4:02pm

CATCHWORDS
REFUGEE – protection visa – Fiji – political and economic situation – member of trade union – financially supporting family by working in Australia – previously violent husband now chronically unwell and unable to harm – claims on political and union grounds discontinued – new claim of fear of harm from neighbour raised in response to tribunal’s questions – longstanding dispute, verbal and physical abuse – application completed by friend and no interview with department – reasonable explanation and no adverse inference drawn – direct and detailed evidence – complementary protection – financial hardship and harm from neighbour not for refugee reasons – real chance of violence intentionally inflicted by neighbour – inconsistent police response and neighbour has son in police force – country information – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 5J(1)(a), (4)(c), 36(2)(a), (aa), (2A)(e), (2B)(b), 65, 423A
Migration Regulations 1994 (Cth), Schedule 2
CASES
MIAC v MZYYL (2012) 207 FCR 211
MIAC v SZQRB (2013) 210 FCR 505
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 applicant is a woman, [Age] years of age, a citizen of Fiji and follows the Christian faith.
The applicant arrived in Australia [in] March 2019 on a tourist visa. On 19 July 2019 she lodged an application for a protection visa with the Department of Home Affairs (the Department).
On 9 April 2020 the delegate of the Minister refused to grant the visa to the applicant under s 65 of the Migration Act 1958 (Cth) (the Act), finding she did not satisfy the requirements of s.36(2) of the Act. This is an application for review of that decision.
CLAIMS AND EVIDENCE
The Tribunal has before it: the Department file, including the visa application; and the material the applicant gave the Tribunal which included a copy of the delegate’s decision record and supporting material.
The applicant made the following claims in her protection visa application:
·There is poverty in Fiji, and she sees people urging their children to study hard. This is what she did with her family.
·She left the country due to their economic and political situation. As a single woman, moving to Australia would give her a better life.
·The applicant stated that it may be that nothing would happen to her on return to Fiji, but she would not be happy as her family have moved to other places.
·She is tired of the culture where relative interfered in her life and they ended up fighting.
The authorities cannot protect her because the workers and trade unionists have been routinely targeted, harassed and physically assaulted and she cannot relocate within Fiji.
In a statement to the Tribunal dated 24 January 2024, the applicant stated the following: applicant provided the following evidence to the Tribunal:
·Her husband has a chronic illness and has been in and out of work for the duration of their relationship. He has been unable to work at all in the last two years. He was not eligible for a disability pension and the applicant had to financially support them both.
·Their [Relative] resides with the applicant and her husband, and they are responsible for his care and education.
·She can work here in Australia and financially support her family.
The applicant provided the following supporting material:
·A copy of the applicant’s birth certificate, and certificate of marriage.
·Numerous receipts for the applicant’s financial transactions here in Australia, including western union transfers to her family in Fiji, Australia Post services, and for expenses here in Australia (chemists, supermarket, and other needs).
·A letter from the payroll manager at her current employer, stating the applicant has been employed full time as [a] worker at their [Workplace 1] since August 2022.
·Photographs of the applicant’s family members in Fiji, including her daughter, her son, her husband, and her son, and photographs of their residence in Fiji.
·An ex-ray examination request dated 17 February 2017 for the applicant’s husband.
·Reminder notices for payment of rent on the applicant’s residence dated 10 March 2022 and 7 November 2023, and a receipt for payment of the rent dated 17 December 2023.
·Receipt for payment of a [Course] for the applicant’s son dated, January 2024, and a certificate confirming he completed a National Certificate in [Subject] at [Institution] on 19 January 2024.
The applicant appeared before the Tribunal on 6 February 2024 to give evidence and present arguments. At the hearing the applicant confirmed her identity and familial and biographical information. She also provided further details regarding her claims for protection. This evidence is discussed below.
Applicant’s background
The applicant grew up in a village with her parents, and [siblings]. Her father passed away from an illness and the applicant left school at form 4 (the equivalent of year 9 in Australia)[1] to help support her mother and siblings. Contrary to statements in the protection visa application, she has never worked in a [Workplace 2]. Rather, she undertook [Job tasks], in [Specified places].
[1] School-year-equivalents-CAT-AMC.pdf (amt.edu.au).
The applicant’s mother is in her [Decade] and continues to live in the village with two of the applicant’s [Siblings] and their respective families. Her [other siblings] are all married and remain in the village with their families.
The applicant was married to her first husband when she was [Age] years of age. They had one son and separated about two or three years after their marriage. Her son was one year old when she married her second, and current, husband. They have two children together, a son who is now [Age] years old and a daughter who is [Age]. The applicant does not have contact with her son from her first marriage, he was informally adopted by another woman and resides with her.
The applicant’s son is not married and does not have any children. Her daughter has one son, from her first marriage, [named], who is now [Age] and two children from her second marriage, one aged [Age] and one who is [Age] years old. The applicant’s husband, children and her grandchildren all reside together in the applicant’s home. Her daughter’s husband does not live with them.
The applicant is currently employed as [a] worker at a [Workplace] in [City]. Her current accommodation is sparce, a one room rental in which the power is often turned off. She takes an uber to work and catches the bus home. She speaks, reads, and writes Fijian and English.
Evidence relating to applicant’s protection claims.
The applicant clarified matters made in the protection visa application, confirming that she is not a member of a Union in Fiji and has not has any problems for that reason. She has never been involved in politics and has never had any fights with her extended family or relatives.
The applicant’s husband was [an Occupation] by trade. However, he has a disability and cannot work. He has been physically violent towards her in the past, but he is unable to hurt her now due to his illness, and he would not harm her on return to Fiji.
The applicant is financially responsible for her family. She is paying for their rent in Fiji, for her son and daughter to undertake [courses], and the education for all her grandchildren. They are living in poverty and if she returns to Fiji she will be unable to find employment as the retirement age in Fiji is 55 and then her family could not survive. Her goal to earn enough money to buy some land and a small house, in Fiji, that is big enough for she and her family to live comfortably.
During the hearing, when discussing her residence and her life in Fiji, the applicant disclosed that she and her family have had a long-standing dispute with her neighbour. He has been violent towards the applicant and her family members. He assaulted her son when he was in high school, bashing his head into a wall. He was in hospital for several months and has a brain injury. He has sexually abused one of her grandchildren, with the applicant witnessing the assault and stopping it from continuing. He also physically assaulted the applicant, hitting her in the head, many times. She did not keep any records of the hospital visits and has not other evidence to offer regarding the assaults.
The neighbour verbally abuses the applicant and her family and dislikes them because they are poor. His son is a police officer so the applicant has never reported his behaviour to the authorities as he would be protected. When asked, she stated that he would harm her on return to Fiji, because that is his personality. The primary reason she is desperate to save money and educate her children and grandchild is so they can all move away from him and be safe.
Application of s 423A of the Act.
In accordance with s 423A of the Act, if the applicant raises a claim or presents evidence that was not raised before the primary decision was made, and the Tribunal is satisfied that there is not a reasonable explanation for failing to do so, the Tribunal is to draw an unfavourable inference regarding the credibility of that claim or evidence.
In this case the applicant did present new claims and evidence to the Tribunal, specifically that she and her family are in an ongoing dispute with their neighbour, her husband is chronically unwell and cannot work and she is the sole financial provider for her family in Fiji. The applicant explained that a friend completed the protection visa application on her behalf and the claims therein were incomplete, and some information was not accurate. She did not have an interview with the Department and the Tribunal hearing was the first opportunity to tell her true story. I accept her explanation is reasonable and find that s 423A does not apply. I am not required to draw an adverse inference regarding the new claims and evidence, and I do not do so.
OVERVIEW OF CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case there is a real chance the applicant will be persecuted on return to Fiji or, if not, whether there is a real risk she will suffer significant harm if removed from Australia to Fiji.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Country of reference, area of return and s.36(3)
The applicant provided her birth certificate and a copy of her Fijian passport. I accept that the applicant is a national of Fiji.
The applicant’s husband, children, and grandchildren, with whom she lived and remains in contact with, reside in [Town] on the [island] of Viti Levu. I find that this is the area to which the applicant would return in the future.
There is no evidence before me to indicate that the applicant has a right to enter and reside in any other country apart from Fiji. I find that s.36(3) of the Act does not apply in this case.
Refugee Assessment
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.
Applicant’s overall credibility
The applicant presented as a credible witness at hearing. She was direct, responsive to the Tribunal’s questions, and did not exaggerate her claims or evidence. She provided detailed evidence about her circumstances, and that of her family in Fiji, in a manner indicative of genuine lived experience. I find that she is credible.
Assessment of claims
The applicant confirmed at hearing that she has never been a member of a union or been harmed in Fiji for this reason. She is a part of a union in Australia but would not join a union in Fiji as she is not interested in doing so. I accept this evidence and find that she does not face a real chance of any harm for this reason on return to Fiji now or in the reasonably foreseeable future.
At hearing the applicant also confirmed that she has not had any disputes with her extended family in Fiji and does not believe they would harm her on return. The applicant stated that her husband has assaulted her in the past, and I accept this occurred as claimed. However, the applicant also stated that he is now too ill to harm her and would not do so in the future. On the evidence before me, I find that the applicant does not face a real chance of any harm from her husband or family members on return to Fiji now or in the reasonably foreseeable future.
The applicant contended that she and her family live in relative poverty, and she is financially responsible for her family. The applicant claimed that she would face difficulties finding suitable work that would sustain the families’ living expenses on return to Fiji in part because of the low wages, but also given her age.
Fiji has one of the largest economies in the Pacific region is considered by the World Bank as an ‘upper-middle income country’.[2] However, most Fijians work in the informal sector, particularly in tourism, agriculture, and aquaculture industries. The International Labour Organisation (ILO) estimates that about two thirds of workers are not employed formally; this number might be rising due to reduced hours and job losses following disruptions caused by the COVID-19 pandemic.[3] The ILO defines ‘informal’ work as employed persons not making contributions to the Fiji National Provident Fund.[4] Further, informal sector workers generally remain outside the trade union movement and are often ‘unorganised’ without clear sets of rules and regulations.[5]
[2] Department of Foreign Affairs and Trade (DFAT), ‘Country Information Report Fiji', 20 May 2022 at [2.7] (DFAT Report 2022).
[3] DFAT Report at [2.8] and [2.18].
[4] International Labour Organisation, Fiji Labour Market Update April 2016 page 1.
[5] Jane Hodges, ‘National Labour Law Profile: Fiji’, International Labour Organisation’, August 2006; and Dibyendu Maiti, Devendra Narain & Sunil Kumar, ‘Regulations, Costs and Informality: The Case of Fiji’, The Journal of Pacific Studies, Volume 36 Issue 2, June 2016, page 69.
The minimum wage is currently FJD 2.68 (about AUD1.75) per hour.[6] The United States Department of State (USDOS) assesses that this wage does not provide a decent standard of living for a worker and their family.[7] Subsistence farming and kin-based wealth redistribution has resulted in lower rates of extreme poverty, but as of 2019 about 30 percent of the population was living in poverty.[8] In November 2023 the former governor of the Reserve Bank of Fiji estimated that 400,000 people may be living below the poverty line.[9]
[6] DFAT Report [2.18].
[7] United States Department of State (USDOS), 'Country Reports on Human Rights Practices for 2022 - Fiji', 22 March 2023, page 25 (USDOS Report 2023).
[8] DFAT Report 2022 at [2.9].
[9] Dionisia Tabureguci ‘400,000 living below poverty line, says Narube', The Fiji Times, 5 November 2023.
In January 2023 the mandatory retirement age was set to 60 years of age.[10] The Social Pension Scheme (SPS) only covers those employed in the formal sector who have received superannuation through the Fiji National Provident Fund.[11] However, given most people work in the informal sector, the coverage rate of the pension is likely to be low. DFAT advises that remittances from the diaspora are an important source of income for Fijians.[12]
[10] Anish Chand, ‘Retirement Age Resrt’, The Fiji Times, 27 January 2023.
[11] ‘Social assistance policy: protecting the poor and vulnerable’, United Nations Women, undated, accessed 9 June 2023, p.10.
[12] DFAT Report 2022 at [2.8].
The applicant provided records relating to her son’s [course] and receipts of western union transfers evidencing the financial aid she provides to her family. She also provided evidence relating to x-rays required by her husband. I accept on the evidence that the applicant’s husband is chronically unwell and cannot work. I accept that the applicant is the primary financial provider for her family. I accept that they are reliant on her for fees related to their rental accommodation, food, clothes, and education.
The Tribunal also accepts that the applicant, as [Age]-year-old woman with limited education, is beyond the formal retirement age in Fiji and that she cannot undertake work in the formal sector. The applicant conceded at the hearing that, despite being unable to obtain formal work, she would be able to find work as [Job task] on return to Fiji. She has done this work in the past and would not have issues finding the work, it is just that she is older, and it would be physically demanding, and the wages are still too low to sustain her family and save money. The Tribunal accepts that such work would be physically demanding however, the applicant is currently working as [a] worker in a [Workplace] factory, which is also physically demanding, and she is able to engage in this work. Accordingly, I find that the applicant would be able to obtain employment on return to Fiji.

The Tribunal accepts that her income would be low and, as she is currently the sole provider, finds that she and her family are likely to face difficulties paying for accommodation, food, clothing, and fees associated with the respective educational requirements of the applicant’s grandchildren and children. The Tribunal finds that his would amount to serious harm, as it is significant economic hardship that threatens the capacity of the applicant and her family to subsist. The Tribunal has considerable sympathy for the applicant and her family given their economic situation and the hardship they experience.
However, as discussed with the applicant, the country information indicates that the circumstances facing the applicant and her family due to their economic circumstances do not form part of (or arise from) any systematic or discriminatory conduct aimed at the applicant or her family members due to their race, religion, nationality, membership of a particular social group, and/or their political opinion. Rather, these circumstances experienced by the Fijian community at large. Accordingly, I find that the requirements of s.5J(1)(a) and s (5)J(4)(c) are not met in this case. The applicant does not have a well-founded fear of persecution for reasons related to the employment and economic circumstances she faces on return.
The applicant’s evidence was that her male neighbour dislikes she and her family has been verbally and physically abusive towards them over a sustained period. Information confirms that Fiji is a traditionally male-dominated society and traditional gender roles are well-entrenched.[13] DFAT states that:
..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.[14]
Sexual violence is also prevalent against women and children, with media reports in 2020 recording 531 cases of rape against 240 victims, of whom 165 were minors, in 2020.[15] DFAT states that women experiencing violence in the outer islands or rural areas may have more difficulty escaping violence, and that family ties/loyalties and traditional hierarchies can protect perpetrators.[16]
[13] DFAT Report 2022 at [3.49].
[14] DFAT Report 2022 at [3.51].
[15] DFAT Report at [3.52].
[16] DFAT Report at [3.57].
The Tribunal considers that the context in which this evidence arose is of significance in this case. Relevantly, the neighbour’s abuse was not expressed as ‘a claim’ by the applicant. Instead, her evidence on this matter was provided in response to the Tribunal’s questions about the applicant’s background and life in Fiji, and it was presented as just another reason the applicant needed to save money and move herself and her family to a better home. The applicant provided significant and meaningful details in relation to the claimed assaults experienced by her family. That and the fact that she did not appear to appreciate the potential relevance of these matters to her application, suggests she was not motivated to exaggerate or fabricate these events. Rather, the Tribunal considers these factors lend credibility to the evidence she provided.
The Tribunal notes that it is for an applicant to present claims and evidence that they satisfy the requirements for a protection visa. However, the court has also confirmed that the Tribunal must have regard to claims squarely arising on the material and evidence before it. In this case, I find that a claim that the applicant faces serious and significant harm from her neighbour arises on the available evidence.
On the detailed and credible evidence provided to the Tribunal at the hearing, I accept that the applicant’s male neighbour dislikes them because they are poor. I accept that he has verbally insulted them over several years and that he has been violent: hitting the applicant numerous times, sexually abusing her grandchild, and beating her son leaving him with a brain injury. The applicant’s evidence regarding the futility of reporting him to the authorities because his son was a police officer was also credible. I accept this evidence.
The applicant stated with some certainty that her neighbour would assault her on return to Fiji, because it is just in his nature. I accept that the past is an indicator of future conduct and find that there is a real chance that he would physically and verbally assault her on her return to Fiji Now or in the reasonably foreseeable future. I accept that this treatment amounts to serious harm of the kind contemplated by the Act in that it amounts to significant physical ill treatment and harassment. However, the applicant’s evidence was clear that this was a personal dispute, and that her entire family were targets, not just the applicant. It is also clear that neighbour’s motivation for harming them is not for one of the reasons set out in s.5J(1)(a) of the Act: it is not due tot heir race, religion, nationality, membership of a particular social group or their political opinion. Accordingly, I am not satisfied that the requirements of s 5J are met in this case.
For the reasons set out above, I find that the applicant does not meet the requirements of the definition of refugee in s.5H(1) of the Act.
Refugee: conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary Protection Assessment
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative, complementary protection, criterion in s 36(2)(aa).
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 Court has confirmed that ‘real chance’ and ‘real risk’ involve the same standard.[17]
[17] MIAC v SZQRB (2013) 210 FCR 505.
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. Relevantly, a person will suffer ‘significant harm’ if:
·the person will be arbitrarily deprived of his or her life
·the death penalty will be carried out on the person
·the person will be subjected to torture
·the person will be subjected to cruel or inhuman treatment or punishment, or
·the person will be subjected to degrading treatment or punishment.
The expressions ‘torture’, ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’ are in turn defined in s.5(1) of the Act.
Assessment of significant harm on return to Fiji
The Tribunal found above that there is no real chance of harm arising to the applicant in Fiji for reasons relating to politics, union membership, or from her husband or extended family. As real chance and real risk involve the same standard, I similarity find that she does not face a real risk of harm within the meaning of s.36(2)(aa) for these reasons on return to Fiji.
I have found that the applicant can obtain employment on return to Fiji, but given the low wages and economic situation, I have accepted that the applicant and her family face poverty and significant economic hardship which threatens their capacity to subsist. However, having regard to the country information above, I find that these matters do not rise to the level of significant harm as defined in the Act: it does not amount to an arbitrary deprivation of the applicant’s life; the death penalty; or torture. Nor am I satisfied that it arises from any conduct intended to cause extreme humiliation, or that it amounts to severe pain of suffering that is intentionally inflicted, or pain or suffering that is cruel or inhuman in nature.
I have accepted above that the applicant faces a real chance of verbal abuse and physical violence from her neighbour on return to Fiji. In all of the circumstances and on the evidence before me, I accept these are acts that will be intentionally inflicted upon the applicant and will cause her severe pain or suffering, both physical and mental. I also find these are acts intended to cause extreme humiliation which is unreasonable. I find this does not involve an act or omission that is not inconsistent with Article 7 of the Covenant, or that it arises from, is inherent in, or incidental to lawful sanctions. I find it meets the definition of cruel or inhuman treatment or punishment and degrading treatment or punishment: s 5 and 36(2A)(e) and (f).I find that the applicant faces a real risk of significant harm in Fiji.
DFAT advises that relocation to escape from violence is not necessarily helpful or available as Fiji is relatively small and people can be tracked down through kinship networks.[18] In this case, I consider it highly unlikely that the applicant’s neighbour would be motivated to track her down should she relocate elsewhere in Fiji. However, I find that it is not reasonable for the applicant to relocate in this case: her husband, children and grandchildren are all resident in her household and are financially and psychologically reliant on her for their daily needs. As such, it is not only the applicant who will need to relocate, but these members of her family. Her husband is chronically unwell, and the applicant’s grandchild are settled in school, and it is not reasonable for them to move residence and resettle in these circumstances. The applicant has resided in that area for over forty years, and while her aim is to move to a better living situation, it is not evident that she intended to move to another part of Fiji and at present her financial circumstances do not permit her to move.
[18] DFAT Report 2022 at [3.57].
DFAT advises that the police are generally professional, responsive, and effective.[19] They receive training from overseas aid partners and are in general disciplined. The police force operates on a community policing model, and they are generally engaged with their communities. DFAT states on one hand that police can protect the community from societal harassment, discrimination, and violence, but on the other hand, the DFAT report also states that police may not be based in vehicles and may not arrive in time to disrupt crimes in progress.[20] In relation to crimes against women, DFAT also advises that police protection is not consistently available, and as noted above, family ties/loyalties and traditional hierarchies can protect perpetrators.
[19] DFAT Report 2022 at [5.6]-[5.10].
[20] DFAT Report 2022 at [5.6]-[5.10].
I have considered that the police in Fiji are generally profession and effective. I note that the Full Federal Court has confirmed that for the purpose of s 36(2B)(b), the level of protection offered by the receiving country must reduce the risk of significant harm to something less than a real one.[21] In this case, I have accepted that the perpetrator of the harm has a son in the police force and I accept the applicant’s evidence that the son will protect him from any legal consequences of his unlawful behaviour. This is also consistent with advice from DFAT that perpetrators are often protected by familial ties and loyalty. I also give weight to information from DFAT that when it comes to crimes against women and gender-based violence, police protection can be inconsistent. In the particular circumstances of this case, I am not satisfied that the applicant can obtain protection from the authorities such that there would not be a real risk that she would suffer significant harm.
[21] MIAC v MZYYL (2012) 207 FCR 211 at [40].
I find that the real risk of harm is one faced by the applicant personally, and not by the population of the country generally.
I find that s 36(2B) does not operate such that there is taken not to be a real risk of significant harm to the applicant.
For the reasons set out above, on the totality of the evidence including country information and the applicant’s particular circumstances, I am satisfied that the applicant faces a real risk of significant harm on return to Fiji.
Complementary protection: conclusion
There are substantial grounds for believing that, as a necessary and foreseeable consequence of being returned from Australia to a receiving country, there is a real risk that the applicant will suffer significant harm.
According The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(aa) of the Migration Act.
Victoria Price
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.
…

[2024] AATA 1811

18 March 2024

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