2008179 (Refugee) - [2024] AATA 3327

2008179 (Refugee) [2024] AATA 3327 (22 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Ms Bethany Rose
CASE NUMBER: 2008179

COUNTRY OF REFERENCE: Fiji
MEMBER:Mary-Ann Cooper
DATE:22 August 2024
PLACE OF DECISION: Melbourne
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 22 August 2024 at 8:40am
CATCHWORDS
REFUGEE – protection visa – Fiji – particular social group – women – family violence – physical assault – sexual assault – breach of AVOs – fear of killing – violence continued after separation – state protection – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 423, 499
Migration Regulations 1994, Schedule 2
CASES
BZAFM v MIBP [2015] FCAFC 41
Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Respondent A (1994) 127 ALR 383
Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1
SZLVZ v MIAC [2008] FCA 1816
SZTEQ v MIBP [2015] FCAFC 39
SZTIB v MIBP [2015] FCAFC 40
SZTOO v MIBP [2015] FCCA 1631
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 17 April 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Fiji, applied for the visa on 9 August 2019. The delegate refused to grant the visa on the basis that the applicant did not satisfy the criterion in s 36(2)(a) of the Act and was not a person in respect of whom Australia had protection obligations as outlined in s 36(2)(aa).
The applicant appeared before the Tribunal on 9 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds.
The Tribunal has considered the written and oral evidence and submissions provided as well as independent country information. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Country of nationality
Section 5H(1) of the Act refers to a person being a refugee if they are outside the country ‘of nationality’. The complementary protection provisions, at s 36(2)(aa), refer to a person being removed to a ‘receiving country’, which is defined at s 5(1) as a country of which the applicant is a national, to be determined solely by reference to the law of the country.
The applicant travelled to Australia on a Fijian passport, a copy of which is contained on the Departmental file and was provided to the Tribunal. She has at all times claimed that she is a citizen of Fiji and she has been assessed on that basis by the Department.
Therefore, based on the information provided by the applicant, the Tribunal finds that she is a citizen of Fiji and as such her protection claims will be assessed against Fiji as the country of reference and ‘receiving country’ respectively.
Background
The applicant was born in [District 1], Fiji on [date] and has [number of children], two of whom were customarily adopted by her [relatives].
She has travelled to Australia previously on a [visitor] visa, first arriving [in] February 2017, then [in] April 2017 and finally [in] May 2019 after which she made her protection visa application.
Applicant’s claims and evidence
The applicant had filed a protection visa application on 9 August 2019 detailing claims of fear of harm from the Fiji military because of political opinion. That application was refused on the basis that the delegate was not satisfied the applicant had a political profile which would attract the adverse attention of the authorities.
Prior to the Tribunal’s hearing, the applicant provided a detailed statement outlining her claims which involved a fear of return to Fiji because of the several years of domestic violence she had experienced at the hands of her husband. She attached supporting information to the statement.
Given the apparently new claims, at the hearing, the Tribunal raised the issue of s 423A which relevantly provides that if an applicant raises a claim on review that was not made before the primary decision, the Tribunal must draw an inference unfavourable to the credibility of that claim. The applicant’s representative noted that the applicant had submitted a protection visa claim on 14 June 2019 involving her domestic violence claims. She later provided the relevant documentation. As it became clear, this visa application was deemed invalid by the Department because the applicant had failed to provide personal identifiers, having changed her address and not received the relevant Departmental communication. On 5 August 2019 the applicant had queried the progress of her application with the Department and on 7 August 2019 she was advised that her application was considered invalid, so on 9 August 2019 the applicant submitted the second visa application, which was refused by the delegate, as noted above. This is the application before the Tribunal. Arguably, s 423A does not apply to the applicant’s domestic violence claims because she did raise them with the Department before the primary decision was made, albeit in an invalid application. Alternatively, the Tribunal accepts as reasonable the applicant’s explanation that she has little understanding of English, is not computer literate and did not have a full understanding of the content of this second application which was hurriedly prepared for her by another person. In the circumstances, in respect of the applicant’s domestic violence claims, the Tribunal does not draw any adverse inferences.
Initial protection visa claims
In her originally-lodged protection visa application[1] the applicant claimed she left Fiji because her husband, from whom she had been separated for over 10 years, was physically violent towards her and she feared for her life. Although he has a new relationship, she said he lived close to her and she was in constant fear for her safety. He had seen her with a male friend and had stabbed him. She had reported his behaviour to the police and he had been jailed twice and has broken orders made against him. She said police in Fiji are not equipped to protect her. She claimed they are corrupt and that her husband has connections both within the police force and the military.
[1] See preceding paragraphs.
On the day she left for Australia she said her husband and [some] of his male friends tried to take her from her vehicle and she claimed his violence towards her was escalating. She said she raised concerns with the police and [Agency 1] in Suva. Her husband was taken to court and given a ‘stay away’ order which he breached the same day. She claimed he has broken every AVO order granted. In response to the question regarding relocation, she responded that she and her daughter had lived in a motel for three months and moved to her [sister’s] house but was unable to remain there permanently and had to return home. She maintains that her husband will continue to harass and harm her physically and mentally if she is returned to Fiji. She is unable to relocate because of financial reasons and will also be isolated from her family and their support if she does so.
At the Tribunal
Prior to the hearing the applicant provided a written statement. In it she states she and her husband married [in] 1985 and she separated from him [in] August 2009. She has [number of children], two of whom were customarily adopted by her [relatives] but with whom she still has a relationship. She claims her husband’s violence towards her started after the birth of her first child in [specified year] and would generally occur after he had been drinking alcohol. According to the applicant he would beat her, verbally abuse her, threaten her with knives, throw things at her, and break furniture. She learned from his family, after the marriage, that he is an alcoholic and has a criminal record. Although her family encouraged her to leave him she did not do so, believing that the children ‘needed to be with their father’ and in Fijian culture ‘the duty of marriage means that the woman is to be there for her husband no matter what’. She also stated she would have been unable to financially support herself and her children if she left.
The applicant claims she first reported his violence to the police in 1988, however, nothing was done. She further notes that her husband knew many of the police personally. She claims she made several reports from 1988 to 2007, almost every week, but the police would acknowledge they knew her husband. Sometimes they would follow up with a visit to their home, occasionally take him away, but she does not know if he was ever charged in that period. They would tell her they had already talked to him and there was nothing more they could do. Sometimes they would just take a statement and release him. She felt that they did not take her seriously.
She records an event in 2007 in which her husband threatened her and her daughter with a knife saying he was going to kill them. Neighbours intervened, the police came and her husband was charged and went to jail for two months. After his release he returned to the house, promising to change, so she allowed him to stay. The drinking and violence did not stop and in or around 2009 she decided to separate from him. Discovering he also had a relationship with another woman, she told her husband to leave. He went to live with the other woman in another village. She stayed in her home in Suva with her [remaining children] and financially supported them by working in a market stall.
The applicant records, however, that her husband’s violence did not stop and he broke into her house on a number of occasions and attacked her. Despite contacting the police several times, they did not arrive. In 2012 she claims her husband attacked her in the market and she had to go to hospital. On that occasion the police did arrest and charge him. He was sentenced to prison and ordered not to be released until he paid a $[amount] fine. The applicant claims his [relative] paid the fine and so he did not spend any time in prison. She states there was no further contact between them until 2014 when the applicant’s husband moved with his new family to Suva. He attacked her again and broke her hand. She reported the incident to police but did not know if he was charged or punished.
While recovering with her aunt she claimed her husband moved into her house (which had been built by her father) with his new partner and children. On her return she said there was another violent clash and police ordered him to leave. She further notes he attempted to rape her in 2015. She began a new relationship and was with this partner from 2015 to 2019, but they did not live together. She claimed her husband attacked and stabbed him in 2017 and this resulted in police action and her husband was held in custody for two months.
The applicant recounts visiting the [Agency 1] in 2016, however, aside from giving her food, she states they were of little assistance.
The applicant claims she was harassed every week from 2014 until she left Fiji in 2019 but did not report it to the police because even when they acted it did not deter her husband. She had seen him drinking with the police and he had a close relationship with them. Following another incident of violence in 2017, when her husband again assaulted her partner, [Court 1] granted her a permanent Domestic Violence Restraining Order (DVRO), restraining her husband from assaulting her (among other non-molestation conditions). She states that this was breached a number of times, however, the police did not always detain him and when they did, it was only for short periods of time, at most two weeks. The applicant attached a letter from [a named] Police Station dated [in] June 2019 confirming a burglary and breaches of the DVRO on four occasions from 2017 – 2018. The letter advises that two breaches were still under investigation and three were still before the court. Both this and the DVRO were attached to the applicant’s statement.
If she is returned to Fiji the applicant states that she fears verbal and physical violence from her husband. She claims her [children] cannot protect her, [their families] are scared of him and cannot stand up to him and he knows the police and they would not help her. She says she cannot relocate in Fiji because she would not be able to find work or accommodation and her husband will always be able to find her.
At the hearing the applicant provided evidence consistent with the above statement. [Details deleted.] She confirmed that she has had no contact with her husband since coming to Australia but understands that he wants a divorce. She is still fearful of further contact with him and has deliberately avoided it. She maintains contact with her [children] and they have told her he has not changed.
She also provided oral evidence in relation to her claims of fear of harm related to her political opinion, however, given the Tribunal’s findings below, it is unnecessary to further consider these claims.
Credibility
Making findings of fact in relation to an applicant’s claims requires an assessment of the credibility of those claims. In doing so, the Tribunal is mindful of the difficulties often faced by asylum seekers, their anxiety and nervousness, the length of time between the events they describe and the hearing. The Tribunal also notes the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all their claims.[2] Nevertheless, the mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed.
[2] SZLVZ v MIAC [2008] FCA 1816 [27].
At the hearing the applicant gave her evidence in a quiet, restrained and consistent manner, although she was understandably emotional at times. She was not always able to remember dates but the Tribunal accepts this as understandable given the length of time since the claimed abuse commenced and the effect of trauma associated with experiencing such ongoing assault. Overall the Tribunal found the applicant a compelling witness and is satisfied as to the credibility of her claims, which were supported by the DVRO and police advice attached to her statement.
Refugee assessment
Section 5H(1) of the Act provides that 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. As noted above, the applicant’s nationality is Fijian and she is outside that country.
Section 5J of the Act provides that a person has a well-founded fear of persecution if:
·     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
·     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 above; and
·     the real chance of persecution relates to all areas of a receiving country.
Does the applicant fear persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion (s 5J(1)(a))?
The applicant claims to fear harm in Fiji because of her husband’s ongoing abuse, threats and harassment. In assessing her claims the Tribunal has had regard to its Guidelines on the Assessment of Credibility on Vulnerable Persons and Gender and in particular notes the difficulties faced by applicants affected by trauma in presenting their claims. It has also had regard to the National Domestic and Family Violence Bench Book.
Based on the applicant’s detailed and consistent evidence, both written and oral, and the corroboration provided by the documents attached to her statement, the Tribunal finds that:
·     The applicant married her husband in 1985 and gave birth to [number of children] with him.
·     She experienced physical violence, verbal abuse and threats, including death threats, from him for several years, commencing in or around [year] and continuing until 2019 when she departed Fiji.
·     She felt compelled to stay in the marriage for cultural and economic reasons.
·     She decided to separate from him in 2009 because the violence had not stopped and she discovered he was in another relationship. He went to [District 1] to live with the other woman.
·     His violence towards the applicant continued and he attacked her on a number of occasions following their separation.
·     She re-partnered in 2015, however, her husband attacked and stabbed her new partner and that relationship ended.
·     She reported her husband’s conduct to police on multiple occasions and, although he was jailed for two months after incidents in 2007 in which he threatened the applicant and her daughter with a knife and in 2017 after the knife attack on her partner, and was fined following an attack on the applicant at the market in 2012, on most occasions they failed to act on her reports.
·     Despite being arrested and charged on three occasions, the violence perpetrated by her husband against her persisted until she departed Fiji in 2019.

The applicant’s accepted evidence demonstrates a pattern of physical violence, threats and abuse directed at her by her husband. While the reason/s for this violence are not clear, the Tribunal considers it is only explicable in the context of her being a woman in an intimate relationship with him.
In this regard, the Tribunal notes that the UN Declaration on the Elimination of Violence Against Women identifies intimate partner violence as the product of historically unequal power relations between men and women and a primary manifestation of discrimination against women.[3]
[3] Declaration on the Elimination of Violence against Women, GA Res 48/104 UN Doc A/RES/48/104 (23 February 1994) art 4(c).
The AAT MRD Guidelines on Gender recognise that family and domestic violence can establish a gender related claim involving gender-based violence.[4]
[4] In this context the Tribunal uses the phrase ‘domestic and family violence’ as defined outlined in the National Domestic and Family Violence Bench Book.
Country information confirms Fiji ‘is a traditionally male-dominated society and traditional gender roles are well-entrenched’.[5]
[5] Australia. Department of Foreign Affairs and Trade, DFAT Country Information Report Fiji 20 May 2022. (DFAT Fiji report), paragraph 3.49.
Independent information also records high and increasing rates of violence against women in Fiji,[6] with gender-based violence having deep roots in the patriarchal society. For example:
In villages today the husband’s control over the wife as head of the household is socially sanctioned by both the village hierarchy and the church. ..Whether the perpetrator of physical violence is a husband or father, the victim is frequently blamed by both men and women for not having given the perpetrator enough respect.
[6] ‘2023 Country Reports on Human Rights Practices – Fiji’ US Department of State, 22 April 2024, p18.
And:
Notions of the husband’s dominance over the wife as being part of the natural order of things are widespread in Fiji … Many female respondents in our talanoa or focus-group sessions recognised that issues of hierarchy, power and control in the household underlie much of the violence against both wives and daughters or step-daughters. …. Because the husband is asserting his culturally sanctioned authority, a certain level of domestic violence is deemed acceptable, just as a father is considered to have the authority to discipline his children.[7]
[7] Gender Violence & Human Rights seeking Justice in Fiji, Papua New Guinea and Vanuatu; Edited by Aletta Biersack, Margaret Jolly & Martha Macintyre ANU Press 2016, pp56, 63-66.
This information highlights gender inequality in Fiji and reveals that there is a level of tolerance/ impunity for intimate partner violence by men against women.
In this context the Tribunal notes the UNHCR Guidelines on International Protection state:
Membership of a Particular Social Group
29. Thus, a particular social group is a group of persons who share a common characteristic other than their risk of being persecuted, or who are perceived as a group by society. The characteristic will often be one which is innate, unchangeable, or which is otherwise fundamental to identity, conscience or the exercise of one’s human rights.
30. It follows that sex can properly be within the ambit of the social group category, with women being a clear example of a social subset defined by innate and immutable characteristics, and who are frequently treated differently than men.
Their characteristics also identify them as a group in society, subjecting them to different treatment and standards in some countries.[8]
[8] UNHCR GUIDELINES ON INTERNATIONAL PROTECTION: Gender-Related Persecution within the context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees. HCR/GIP/02/01 7 May 2002.
The Australian courts have consistently found that the phrase ‘particular social group’ should be broadly interpreted to include many groups who do not otherwise fall within the other categories of race, nationality, religion or political opinion.[9] In Australia the High Court has accepted that it is open to the Tribunal to find that women or a subgroup of women can comprise a particular social group.[10] Gleeson CJ further said that the size of the group did not stand in the way, noting that ‘women in any society are a distinct and recognisable group and their distinctive attributes and characteristics exist independently of the manner in which they are treated’.[11]
[9] Minister for Immigration and Ethnic Affairs v Respondent A (1994) 127 ALR 383; Chen Shi Hai v Minister for Immigration and Multicultural Affairs (2000) 201 CLR 293.
[10] Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1.
[11] Ibid, at [32].
Having considered the case law and country information, and the applicant’s particular circumstances, the Tribunal is satisfied the applicant’s gender is the essential and significant reason for the harm she fears (s 5J(4)(a)). Specifically, based on the above findings, the Tribunal is satisfied that the applicant has a subjective fear of persecution in Fiji for reasons of her membership of the particular social group of ‘women in Fiji’. Self-evidently this is a characteristic shared by each member of the group, it is innate and it distinguishes the group from the rest of Fijian society. It is not the fear of persecution that is shared but the fact of being a woman (s 5L). That harm is readily assessed as involving systematic and discriminatory conduct because it is, ‘deliberate behaviour on the part of the persecutor, rather than behaviour that is random or accidental’.[12] (s 5J(4)(c)).
[12] SZTEQ v MIBP [2015] FCAFC 39 [72]. See also SZTIB v MIBP [2015] FCAFC 40 and BZAFM v MIBP [2015] FCAFC 41.
Section 5J(4)(b) also requires that the persecution feared must involve serious harm to the person. Section 5J(5) contains a non-exhaustive list of what constitutes ‘serious harm’ for these purposes. It includes threats to a person’s life or liberty, significant physical harassment of a person and significant physical ill-treatment of a person. The Tribunal has accepted that the applicant was subjected to physical violence, abuse and death threats from her husband. It is satisfied that this involves serious harm because it includes, among other things, significant physical harassment or ill-treatment and threats to the applicant’s life or liberty (s 5J(5)(a),(b) and (c)).
The Tribunal is therefore satisfied that the persecution feared by the applicant would involve serious harm within the meaning of s 5J(4)(b) and s 5J(5).
For the above reasons, the Tribunal is satisfied that the applicant has a subjective fear of being persecuted in Fiji for reasons of her membership of the particular social group of women in Fiji. Accordingly, s 5J(1)(a) is met.
Is there a real chance that, if the applicant is returned to Fiji, she will be persecuted for reason of her membership of the particular social group (s 5J(1)(b))?
Section 5J(1)(b) requires that, for the fear of persecution to be well-founded, there be a real chance that, if the applicant is returned to her receiving country, she will be persecuted for this reason. That is, not only must the person fear persecution, but there must also be a prospect of that fear being realised. Mere speculation will not constitute a well-founded fear of persecution. In MIEA v Guo, the Court said:
Conjecture or surmise has no part to play in determining whether a fear is well‑founded. A fear is “well-founded” when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.[13]
[13] MIEA v Guo (1997) 191 CLR 559, 572.
The test is forward-looking, requiring assessment of the risk of harm to the applicant in the reasonably foreseeable future, however, while past events ‘are not a certain guide to the future 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’.[14]
[14] Ibid.
The Tribunal also notes that the National Family and Domestic Bench Book states in its context statement:
The most common form of physical violence is threats of physical harm, however these are often accompanied by actual physical violence. The levels of violence experienced from a former partner are statistically much higher than from a current partner, and are more likely to injure and invoke in the victim a feeling that their life is in danger. It also is the most likely form of violence to be reported by victims…
American research indicates that the severity of abuse related harm is significantly heightened when weapons are involved. Studies found that women whose abusers used or threatened use of a weapon were 20 times more likely to be killed (with or without a weapon) than women whose abusers did not use or threaten weapon use…[15]
[15] National Domestic and Family Violence Bench Book (aija.org.au);
The violence experienced by the applicant includes threats with a knife. As noted above, the risk of death or life-threatening injury is increased when a perpetrator has previously tried to use a knife.
Studies have also shown that controlling abusive men are angered by their partner leaving them and sometimes feel driven to retaliate violently, even after some time.[16] This is consistent with the applicant’s account of her experiences following her separation from her husband.[17]
[16] See e.g. Family Violence Multi-Agency Risk Assessment and Management Framework | Victorian Government ( ANROWS, ‘The ‘Pathways to intimate partner homicide’ project: Key stages and events in male-perpetrated intimate partner homicide in Australia’, Halley Boxall, Laura Doherty, Siobhan Lawler, Christie Franks, Samantha Bricknell, Research Report, Issue 4, February 2022, 60.
[17] In her statement at paragraph 28 she states: ‘After we separated my husband did not like me being independent so he would come and abuse me. This would happen approximately twice or three times per week’.
In addition, sources indicate that domestic and family violence is widespread in Fiji. The Department of Home Affairs summarises the situation as follows[18] (footnotes omitted):
There is little discrimination against women in law and official policy. The Constitution and other legislation protect the right of women to equality and freedom. Fijian women have the same rights and status as men under family law and in the judicial system. Women are free to participate in the political process; however, cultural attitudes regarding gender roles restrict the ability of most Indigenous women to do so…
Gender-based violence against women is prevalent in Fiji. Between January and July 2022, the Fiji Women’s Crisis Center (FWCC) recorded 791 domestic violence cases, an increase from previous years. In 2020, 10 women died from domestic violence. In June 2023, the Fijian police force reported that more than 9,000 assault cases have been recorded against women in the last four years. In March 2022, the FWCC reported that 64 per cent of women who have ever been in an intimate relationship had experienced physical or sexual violence. Of these, 61 per cent of women have experienced physical violence and 34 per cent have been sexually abused or raped. In 2014, the FWCC reported that every day, 43 women are injured, one is permanently disabled and 71 lose consciousness as a result of domestic violence. In September 2023, the Minister for Women, Children and Social Protection stated that 4 out of 5 children are currently facing some form of abuse. The situation has worsened considerably in recent years, with NGOs reporting a ‘concerning increase’ in gender-based violence since the COVID-19 pandemic. The FWCC reported a 300 per cent increase in domestic-violence related calls to its hotline in the month following the introduction of COVID-19 related curfews and lockdown measures in 2020.
[18] Australia. Department of Home Affairs. Common Claims: Fiji. Country of Origin Information Services Section (COISS) effective from 11 December 2023. (Common claims), pp 6, 8.
In April 2024, the FWCC reported that there has been an average of six femicides each year for the last decade.[19]
[19] ‘FWCC calls for urgent action on domestic violence’. FBC News, 26 April 2024.
DFAT also reports:[20]
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.
[20] DFAT Country Report Fiji, paragraph 3.51.
The Tribunal notes the long term spousal abuse that the applicant has endured, continuing up to her last departure from Fiji, the many police reports she made and their limited and often non-existent response, and the few and relatively weak sanctions that were imposed on her husband, and considers that this has created an environment in which the applicant’s husband believes he can act with impunity. The Tribunal accepts the applicant’s evidence that, as her children have told her, her husband has not changed. Along with country information confirming the patriarchal nature of Fijian society and the increasing and prevalent incidences of domestic/family violence against women, the Tribunal is satisfied that the evidence, taken cumulatively, establishes that the applicant faces a real chance of serious harm from her husband in the form of domestic or family violence now and in the reasonably foreseeable future if she returns to Fiji. The Tribunal considers that the chance her husband will try to seriously harm her is significantly more than remote or fanciful.
Accordingly, the Tribunal is satisfied that, because she is a woman in Fiji, there is a real, not remote, chance that, in the reasonably foreseeable future,[21] the applicant would be subject to such treatment if she is returned to Fiji (s 5J(1)(b)).
[21] SZTOO v MIBP [2015] FCCA 1631 [27].
Does the real chance of persecution involve all areas of the receiving country (s 5J(1)(c))?
As previously noted, country information supports the prevalence of family violence across Fiji and the Tribunal notes that the applicant’s husband, despite moving to [District 1] on their separation in 2009, continued to travel to the applicant’s home in Suva and assault her. Given his past conduct, the Tribunal accepts that the applicant’s husband would be motivated to locate her if she was returned to Fiji.
As DFAT reports regarding internal 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.[22]
[22] DFAT Country Report Fiji, paragraph 5.25.
And more specifically in relation to women experiencing domestic 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.[23]
[23] Op cit, paragraph 3.57.
In this context the Tribunal is satisfied that in the applicant’s particular circumstances the real chance of persecution relates to all area of Fiji. Therefore s 5J(1)(c) is satisfied.
Sections 5J(2) and (3) also provide exceptions and qualifications to a finding of a ‘well-founded fear of persecution’.
Section 5J(2) provides that a person will not have a well-founded fear if effective protection measures are available to the person in the receiving country. Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection. A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA(2).
There are several reports which assess the protection available to victims of family and domestic violence in Fiji.
DFAT reports in this regard that:
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 (see Police). 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.[24]
[24] DFAT Country report Fiji, paragraphs 3.53 – 3.55.
The Department of Home Affairs also reports (footnotes omitted):
Domestic violence and rape (including spousal rape) are criminal offences under Fijian law. Police practice a ‘no drop’ policy that requires them to pursue investigations of domestic violence even if the victim withdraws the accusation. This policy is designed to prevent victims from being pressured by family to drop charges. However, women’s organisations report police do not consistently follow this policy. In the Indigenous and Indo-Fijian communities, traditional and religious reconciliation practices are sometimes used to mitigate domestic violence sentences. Under these practices, there is significant pressure on women to reconcile with husbands and partners following incidents of domestic violence, rather than seeking justice through the formal legal system. Magistrates can issue restraining orders that are enforced by police. DFAT assesses that these ‘provide some protection.’ Rape is a criminal offence punishable by up to life in prison. Spousal rape is also recognised as a specific offence. There are numerous challenges to accessing effective police protection in gender-based violence cases … police often pressure women to reconcile with perpetrators and were sometimes unhelpful or hostile to domestic violence victims who filed police reports. During 2022, Fijian courts dismissed some domestic violence cases and gave perpetrators light sentences.[25]
[25] Common claims, pp 8-9.

In 2020, the FWCC Centre Coordinator, Shamima Ali (Ali), said they still encounter a number of police officers who try to reconcile cases of domestic violence despite the ‘No Drop Policy’. Ali said the perpetrators in these cases are either friends of the officers or the officers are themselves accused of domestic violence. She also raised concerns that some officers who are under investigation for domestic violence are still working in the force but according to the law they should be suspended pending investigations.[26]
[26] S. Singh, ‘Officers trying to reconcile cases of domestic violence is still a concern – Ali’, Fiji Village, 4 December 2020; ( ‘Justice Needs and Satisfaction in Fiji’, United Nations Development Programme (UNDP), October 2019, (UNDP Report 2019) ( 20221103115602) p.60.
In 2020 the Fiji Acting Commissioner of Police acknowledged that police officers were ‘terrible’ at treating victims of domestic violence. He said that most of the time when victims go to the police stations to lodge a complaint, they are interrogated like suspects.[27]
[27] F. Talei, ‘Police Fail Domestic Abuse Victims: Tudravu’, Fiji Sun, 4 November 2020, (
In 2021 the Rapporteur to CEDAW remained concerned about the limited training provided to law enforcement persons given that only 63 police officers had received training on the National Service Delivery Protocol for Responding to Cases of GBV in the last two years.[28]
[28] ‘Letter of the Rapporteur on follow-up on concluding observations of the Committee on the Elimination of Discrimination against Women (CEDAW)’, Office of the High Commissioner for Human Rights, 25 November 2021; 20221103120830, p.3.
The United States Bureau of Democracy, Human Rights, and Labor also similarly reported in 2023:
The law defined domestic violence as a specific offense. Police practiced a “no-drop” policy, whereby they were required to investigate domestic violence accusations even if a victim withdrew the complaint. Nonetheless, women’s organizations reported police did not consistently follow this policy. Other reports indicated lax police enforcement of domestic violence laws. Courts also dismissed some cases of domestic abuse and incest or gave perpetrators light sentences. Traditional and religious practices of reconciliation among aggrieved parties in both the Indigenous and Indo-Fijian communities were sometimes utilized to mitigate sentences for domestic violence. In past years, authorities released offenders without a conviction on condition they maintained good behavior.
The NGOs Fiji Women’s Crisis Center and Pacific Women supported a wide range of educational, social support, and counseling measures for survivors of gender-based violence and advocated for legal reforms to strengthen protections for women and girls…
Women had the same rights and status as men under family law and in the judicial system. Nonetheless, women and children had difficulty obtaining protection orders, and police enforcement of them, in domestic violence cases.[29]
[29] United States Bureau of Democracy, Human Rights, and Labor: Country Reports on Human Rights Practices: Fiji - 2023 Human Rights Report: p18.
The above information indicates that State protection is not effective for women seeking protection from family or domestic violence in Fiji. Rather, as the above information confirms, despite laws dealing with domestic violence, cultural factors prevent women from either reporting the violence or seeking help. Even when they do seek help, the police can be ‘unhelpful’ or ‘hostile’.
This general ineffectiveness of State protection is underscored/supported by cultural considerations. For example:
In some instances, the victim goes directly to the police, but, rather than laying charges, the police may advise the victim to return to the turaga ni koro to solve the problem with him instead, contravening the ‘no drop’ policy in favour of prioritising local relationships with men who are acknowledged as having legitimate and direct authority in the community.[30]
[30] Above, n7.
Taking into account the country information and the applicant’s own experience, the Tribunal considers that the measures adopted by the State of Fiji to deal with family and domestic violence against women are either unavailable or, if available, ineffective in the circumstances. Specifically, the accepted evidence establishes that the police and local authorities did little to protect the applicant, effectively providing her husband with a level of impunity that enabled or failed to dissuade him to continue his attacks on her. Even when the authorities did act they were entirely ineffective in protecting her or further preventing his attacks on her. In this context the Tribunal is not satisfied that the applicant can either access the protection she requires (s 5LA(2)(a)) or, if she could, that it would be durable (s 5LA(2)(b)).
In addition, even though the Fijian State has indicated a willingness to offer protection against persecution to women who are subjected to domestic and family violence, the Tribunal is not satisfied, on the above country information and given the State’s past failures to protect the applicant that, in her particular circumstances it would be able to offer her protection against persecution from her husband (s 5LA(1)(b)).
Therefore the Tribunal finds that, for the purposes of s 5J(2) of the Act the applicant could not obtain, from the State of Fiji, effective protection against persecution. There is no indication that there is any other party or organisation that controls Fiji or a substantial part of its territory which could provide her with effective protection (s 5LA(1)(a)(ii)).
It follows that the Tribunal is not satisfied that there are effective protection measures available to the applicant in Fiji (ss 5J(2) and 5LA).
Section 5J(3) further provides that, subject to some exceptions, a person does not have a well-founded fear if the person could take reasonable steps to modify his or her behaviour to avoid a real chance of persecution. The applicant’s gender is accepted as the reason for her persecution. It is innate and cannot be changed and therefore falls within the exemption in s 5J(3)(b). The Tribunal is not satisfied that there are any reasonable steps the applicant could take to modify her behaviour so as to avoid a real chance of persecution in Fiji. (s 5J(3)).
It follows that the Tribunal is satisfied that the applicant has a well-founded fear of persecution in Fiji and meets the requirements of s 5J of the Act.
There is no information before the Tribunal that the applicant has a right to enter and reside in any other country. Therefore s 36(3) does not apply.
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).
Conclusion
Accordingly, the Tribunal is satisfied that the applicant is a refugee within the meaning of s 5H(1)(a) and that she is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Mary-Ann Cooper
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.
…