2008179 (Refugee)

The Administrative Appeals Tribunal considered the protection visa application of a citizen of Fiji. The applicant claimed a fear of harm from her former husband, alleging a history of domestic violence including physical assault, sexual assault, and threats to her life, despite being separated for over ten years. She also asserted that Fijian police were unable to protect her due to corruption and her husband's connections within the police and military.

The primary legal issues before the Tribunal were whether the applicant qualified as a refugee under section 36(2)(a) of the *Migration Act 1958* (Cth) or met the criteria for complementary protection under section 36(2)(aa). This involved determining if the applicant had a well-founded fear of persecution based on her membership in a particular social group, specifically women experiencing family violence, and whether effective protection was available in Fiji. The Tribunal also had to consider the application of section 423A of the Act, which generally requires an adverse inference to be drawn if new claims are raised on review, and whether the applicant's domestic violence claims were sufficiently raised prior to the primary decision.

The Tribunal reasoned that the applicant's domestic violence claims, though initially made in an application later deemed invalid, were sufficiently raised before the primary decision, particularly given her limited English proficiency and lack of computer literacy. It accepted her explanation for the circumstances surrounding the preparation of that application, thus not drawing an adverse inference under section 423A. The Tribunal found that the applicant was a refugee within the meaning of section 5H(1)(a) of the Act, satisfying the criteria for a protection visa under section 36(2)(a).

Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant satisfies section 36(2)(a) of the *Migration Act*.