2008319 (Refugee) - [2024] ARTA 118

2008319 (Refugee) [2024] ARTA 118 (29 November 2024)
DECISION AND
REASONS FOR DECISION
Representative:  Ms Gretel Emerson
Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number: 2008319
Tribunal:General Member M McCalman
Date:29 November 2024

Place:Sydney
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.

Statement made on 29 November 2024 at 8:56pm
CATCHWORDS
REFUGEE – protection visa – Fiji – membership of particular social group – transgender woman – societal harassment, abuse and discrimination, and extensive assaults by relative – depression and suicidal thoughts – plausible and credible claims and evidence – surgical transition in progress – country information – official discrimination banned under constitution, but high levels of discrimination and abuse, unemployment and poverty, and unequal access to public services reported – modification of behaviour not permissible and state protection not available – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
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 14 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 is a citizen of Fiji, applied for the visa on 22 February 2017. The delegate refused to grant the visa on the basis that she is not a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal on 11 September 2024 to give evidence and present arguments.
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
CLAIMS AND EVIDENCE
Background
In her protection visa application form, the applicant provides the following information. She was born in Fiji in [Year]. She has never been married. The applicant listed her family as her parents are brother and two sisters, all living in Fiji. She is in contact with her family fortnightly. After her junior and high school, she enrolled in [University] and completed one semester in a [subject] course. She is unemployed and has never worked. Her religion is [Christian].
She departed Fiji and arrived in Australia [in] January 2017 as the holder of a visitor visa. She travelled on her Fiji and passport.
In the Department’s decision the delegate noted that the applicant’s passport identifies her gender as male. However, as a transgender person, the Department accepted that the applicant identifies as female and that for the purposes of the assessment of her protection visa application, female pronouns will be used.
Evidence before the Department
Claims for protection
The applicant’s claims for protection are contained in her protection visa application form. Her claims are as follows:
- Being gay in Fiji is not accepted and she no longer feels safe there.
- She likes to cross-dress and she was verbally abused and discriminated against when she did. In Fiji, she fears being attacked at night.
- Offensive statements were made by the Fijian Prime Minister (PM) Frank Bainimarama. He said, “Fiji does not need that rubbish” regarding same sex marriage and “…… any woman that wants to marry another woman, go and have it done in Iceland and stay and live there.”
- The applicant felt that she and the LGBTI community was left helpless after these statements, and she felt fear knowing she was not accepted in her own country.
- She felt threatened and ‘looked down upon’ for being gay by the statements made by the PM and this contributed to the applicant questioning herself as to where she could seek safety.
- Now that she is in Australia, she can be who she chooses without fearing for her life. As a cross-dresser and transgender woman, she is now free from persecution.
- Her uncle in Fiji, who used to be in the [Employer 1], is a violent, homophobic man and he had issues with the applicant’s sexuality. In his presence, she could not be her true self because he would get angry and violent. Her uncle physically and verbally assaulted her using vulgar Fijian words. She feared him and she wanted to commit suicide.
- In 2015, a group of boys from her village, ridiculed, mocked, and threatened her. She felt bullied and discriminated against. She reported this to the police and the police informed her that they would come to her place the next day so she could direct them to the houses of the boys. The police did not show up as promised.
- She felt like a second-class citizen and has wanted to end her life because she is different and bullied for not fitting into society’s definition of normal.
- The public hatred and threats on social media towards the LGBTI community in Fiji grows stronger every day.
- The PM and homophobic people in Fiji go against the rules implemented by the United Nations.
The applicant engaged with the Department, in a protection visa interview via teleconference on 30 March 2020 with a support person. She also provided the Department with the following documents in support of her application:
·     A newspaper article titled ‘Move to Iceland: Fiji PM’s advice for gay couples’ dated 7 January 2016.
·     An online article titled ‘No Same Sex Marriage: PM’ dated 6 January 2016.
·     An article titled ‘Fiji Prime Minister Tells Gay Couples to Move to Iceland’ dated 1 June 2016.
·     The applicant also provided a collection of social media posts from Facebook pages and various online forums relating to the death of transgender women in Fiji.
The delegate’s decision
On 14 April 2020, the delegate made their decision. The delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations. In the delegate’s view, the official and societal attitudes to LGBTI have changed significantly in recent years; that official discrimination against LGBTI people is banned under the Fijian Constitution; and that police attitudes have also changed, and the Fijian police are openly engaging with the LGBTI community. They noted that notwithstanding the comments made by the Fiji Prime Minister and other politicians about same sex marriage and LGBTI rights, official and societal attitudes about LGBTI people, including transgender individuals such as the applicant appear to be changing. While accepting that discrimination remains against LGBTI people, they were not satisfied that it is so severe that it amounts to persecution. The delegate also noted that hate crimes continue to occur in Fiji against LGBTI people however such crimes are infrequent, and the police do investigate them, and take action against the perpetrators. Their view was that the Fijian authorities can and will provide adequate state protection to the applicant against potential hate crimes. While acknowledging her subjective fear of harm, they were not satisfied that there is a real chance that the applicant would face serious harm in future if she returned to Fiji for being a transgender person in Fiji, and therefore she was not owed protection in Australia.
Evidence before the Tribunal
On 15 May 2020, the applicant lodged an application for review of the delegate’s decision with the Tribunal. She provided the Tribunal with a copy of the delegate’s decision.
On 4 September 2024, the applicant’s representative provided the Tribunal with submissions in support of the applicant’s review application and a supplementary statement of the applicant. This included the following:
·     Letter from Gretel Emerson, solicitor (applicant’s representative) - Refugee Advice and Casework Service (RACS) dated 4 September 2024.
·     Written statement from the applicant - dated 4 September 2024
·     A number of photocopied photographs (13 in total)
i.Photographs 1-3 captioned as the applicant’s uncle in [specified clothing] and in [specified activities] in Fiji; and
ii.Photographs 4-10 captioned as the applicant in her life in Australia.
The hearing
The applicant appeared before the Tribunal on 11 September 2024. Ms Emerson, the applicant’s legal representative also appeared and provided a verbal submission providing a summary of what she had included in her written submission to the Tribunal.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis, reasons and findings
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
In the hearing the applicant gave evidence that she completed her protection visa application herself and that the contents are all true and correct. She told the Tribunal that she recently engaged the services of the [Organisation] to assist her in her matter.
In assessing the credibility of the applicant’s claims, the Tribunal, as did the delegate for the Department, found that the applicant gave a plausible account of the persecution she experienced in Fiji and that she is a credible witness.
In the hearing, in response to questions from the Tribunal the applicant’s relevant evidence was as follows. She was born in Fiji on [Date]. She was born into a male anatomy however she has wanted to be a female for most of her life, at least from her teenage years. She has parents in Fiji with whom she is in contact twice each month and siblings with whom she maintains a good relationship. Her family are [Christians] however she does not follow the religion. She never worked when she lived in Fiji. She said that she no longer has personal friends in Fiji as everyone has moved on, although she has maintained [Social media] friendships and contacts with her community in Fiji. She has now made links with the gay and transgender community in Australia. Before coming to Australia, she lived in [Town] with her parents and siblings.
The applicant’s experience in Fiji
Throughout her life in Fiji, and particularly in her preteens and teenage years, the applicant suffered abuse. She was sexually assaulted three times before she became an adult. This included being raped by her [uncle] when she was 10 years of age and being physically and emotionally assaulted by this same uncle on several occasions as a young teenager. She recalled that because she was an ‘effeminate boy, he would often say, “I’ll kill you….. I’ll kill you” and one time he expressed that he wished she had died before her birth.
She said that from a young age until she left Fiji, she constantly feared him and always felt that she had to be on guard and present herself as masculine as possible in his presence. This uncle whom the applicant described as brutal, aggressive and homophobic, also proposed that the applicant be taken into military service to correct her defiant and gender related inconsistent behaviour. It was when her uncle made tangible arrangements through his friend who was the [rank], for the military service to occur in early 2018, that the applicant’s father purchased a plane ticket to Australia for the applicant and told her to leave Fiji. The applicant and her parents were very concerned that she would be forced to join the military once arrangements were made. (The applicant told the Tribunal that the [rank], [Mr A], referred to above, is a personal friend of her uncle and he is now the head of the [Employer 2].)
She also reported that she was constantly harassed, mocked, and ridiculed by community members whenever she was in the community. She once made a police report when she was threatened and intimidated by village boys on an occasion in 2015. The police did not follow up on her report. After this experience with the police, she said that she had no confidence in the police and felt abandoned by the system. The applicant also told the Tribunal that she was sexually assaulted twice by a bus and a taxi driver during travel to and from university. Her home was a 40-minute bus journey from the university and because she had no other means of transport other than by bus or taxi, she abandoned her study after the first semester because she was too frightened to travel by bus or in taxis.
In Fiji, the applicant liked to cross-dress however, on most occasions when she did, she copped abuse and harassment. As a result, she mostly dressed as male whenever she left her home which meant that when out in public, she was forced to hide her true self.
The culmination of these events involving assaults, discrimination, harassment and constantly feeling unsafe, contributed to her experiencing depression and ongoing suicidal thoughts. She said that she felt like she was “living in hell because she did not fit into Fijian society”. She told the Tribunal that it was only due to the support of her parents and of a few understanding LGBTQI+ friends from university that she didn’t kill herself when she lived in Fiji.[1]
[1] Lesbian, gay, bisexual, transgender, queer, intersex and other sexually or gender diverse people. Whilst various acronyms are adopted across country information referred to in this decision, the Tribunal has consistently adopted LGBTQI+ in this decision unless directly quoting from country information where an alternative acronym is utilised.
The Tribunal accepts on the evidence before it, that the applicant discovered her true identity as a young person. The Tribunal also accepts that she experienced bullying and harassment as well as physical, sexual, and mental assault when she lived in Fiji and that her life and freedom was significantly impacted by these events. The Tribunal also accepts that the applicant was unable to avail herself of police protection when she sought help on at least one occasion and thereafter she did not trust that she could rely on the police for assistance and protection.
Life in Australia and fears of returning to Fiji
The photographs submitted to the Tribunal, and the applicant’s passport photograph, clearly demonstrates to the Tribunal that the applicant presented as an effeminate male when she first arrived in Australia in 2017. The applicant told the Tribunal that since coming to Australia, she has had the freedom to completely identify and present as female. Her appearance and behaviour in the hearing, indicated to the Tribunal, that the applicant presents as a female in her everyday life.
The applicant told the Tribunal that she is well on the way to physically transitioning to a female body and through surgery, she plans to complete the process in time. She also expressed that in the future, she would like to marry and have her own family. She said that she would be denied these opportunities in Fiji because gay marriage is not legislated, and she could never marry under existing laws that only recognise heterosexual couples because she would never be recognised as a woman under Fijian law.
The applicant is now known by her friends, her employer and work colleagues in Australia and her immediate family in Fiji, to be transgender and that she presents as a female. She made it abundantly clear to the Tribunal that she cannot return to living as a male. She expressed to the Tribunal that she has lived-experience of being harmed in the past because of who she is and fears being sexually and physically harmed again if she was forced to live there again. She said that as the woman she is now, she would be unable to cope with the discrimination, bullying, harassment, and abuse that she would face in Fiji as a transgender woman.
The Tribunal accepts that the applicant has lived her adult life as a transgender woman in Australia and that she is accepted by her immediate family and friends, her employer and colleagues, the community and the general public as a transgender woman. The Tribunal also accepts that the applicant has plans to have surgery to facilitate a full transition into a female body in the future.
The Tribunal accepts that the applicant holds subjective fears of being persecuted and suffering serious harm in Fiji, if she returned there, because of her identity as a transgender woman.
As mentioned above, the Tribunal finds the applicant’s evidence, as summarised above, is credible. It accepts her account in full.
The applicant’s representative
The applicant’s representative advanced the following information and arguments in their submissions on 4 September 2024.
·The applicant fears being persecuted in Fiji for the following and significant reason, that is, her membership of a particular social group of ‘transgender women in Fiji’.
·There is a real chance that the applicant, if returned to Fiji, would be persecuted for this Convention reason. Such persecution would involve serious harm to the applicant including but not limited to threats to her life; physical and verbal abuse; and an inability to access essential health services.
·The Fijian authorities will be unable to adequately protect the applicant to the standard required by s 5J(2) of the Act, and that authorities such as the police are likely to be perpetrators of the harm the applicant fears.
·Considering the applicant fears harm from members of the Fijian public, relocation within Fiji would not be reasonable nor effective in reducing the risk of harm she faces.
·Country information unequivocally supports the applicant’s claimed fears of harm from members of the Fijian community and authorities owing to her identity as a transgender woman. Excerpts relevant to this submission are provided from the 2022 DFAT report; the US State Department country report on human rights practices in Fiji; and the Asia Pacific transgender network.

The country information referred to by the representative is as follows:
·     Department of Foreign Affairs and Trade (DFAT) most recent report on Fiji,[2] increased the risk of harm faced by LGBTQI+ community as “moderate” from “low” as was previously reported in 2017. The current report has included additional recognition of the fact that transgender people “report high levels of discrimination and abuse”. Noting the increase in the assessed risk of harm as moderate to high, that this satisfies the test of a real chance of being persecuted.
·     Further assessments reported by DFAT include that this community can experience societal discrimination when accessing goods and services; and that overall, this community are at moderate risk of official and societal discrimination and a moderate risk of violence. Because of homophobia and societal discrimination, many LGBTQI+ people hide their identity.[3]
·     In regard to The US State Department Country Report on Human Rights Practises: Fiji,[4] it details the discrimination and harm the applicant would face from authorities and in employment. As well as the fact that violence against LGBTQI+ people is common, strong and widespread social stigma contributes to a lack of trust in police and discourages victims from reporting crimes to authorities due to fear of further violence and harassment and being targeted by police. Also, that the NGO, Diverse Voices and Action for Equality (DIVA) report that the majority of lesbian and bisexual women and transgendered persons live in poverty due to unemployment. According to DIVA, approximately 62 per cent of this group were unemployed or involved in precarious casual work. They also state that legal gender recognition was not available and the lack of alignment with their gender expression, created significant problems for some persons in employment education housing and other aspects of daily life.
[2] DFAT Country Information Report Fiji’, Department of Foreign Affairs and Trade, 20 May 2022, sections 3.64 - 3.65.
[3] Ibid, sections 3.62, 3.64-3.65.
[4] United States Department of State, 2023 Country Reports on Human Rights Practices: Fiji, 22 April 2024.
In regard to the Asia-Pacific Transgender Network, it further explores the unique challenges faced by transgender individuals in Fiji:
·Fiji is currently the only Constitution in the world that covers anti-discrimination on the grounds of gender expression. Article 26 of the Republic of the Fiji Islands Constitution 2013 enshrines protection from discrimination on the grounds of sex, gender and sexual orientation, gender identity and gender expression, and yet stigma, discrimination and hate crimes remain an everyday reality for trans and gender diverse people in the island nation. One of the main reasons for this, as a careful analysis policies and laws revealed, is the lack of legal gender recognition.
·Despite having a constitutional guarantee of antidiscrimination on the basis of gender expression, the actual day to day access to rights and provisions remain fairly limited for trans and gender diverse people in the absence of legal gender recognition and policy coherence.[5]
·Laws, regulations, policies, and court decisions continue to follow Fiji’s colonial past of defining gender and sex in a fixed binary way, with only one male and female category that cannot be amended. This legal vacuum in terms of recognising transgender people perpetuates marginalisation, exclusion and discrimination. The inability to obtain identity documents reflecting self-determined gender identity or expression results in unequal access to public services such as education, healthcare, employment, housing, social benefits and restricts access to justice.
·Transgender women are routinely targeted and searched without respect and dignity in police custody and prisons. Cyber bullying and hate speech targeting transgender people is on the rise.[6]
[5] Asia-Pacific transgender network, ‘legal gender recognition: CG policy brief on case study’ (10 March 2023) p 4 < Asia-Pacific transgender network, ‘legal gender recognition in Fiji: a legal and policy review in the context of human’ (26 April 2022) p 13 >
The representative contends that the applicant should be afforded protection in Australia so that she can live freely without fear of persecution and serious harm.
Additional country information
The Tribunal accepts the country information put forward by the applicant’s representative and notes that the additional country information available to the Tribunal confirms that transgender and non-heterosexual individuals face high levels of sexual and gender-based violence in Fiji, as well as psychological and physical violence, discrimination and harassment.
The news article by Fiji Village reports on the research done by the Haus of Khameleon,[7] “Research by Haus of Khameleon, Says That 70% of Transgender Women in Fiji have Experienced Some Form of Violence”.[8] Their research found that 70 per cent of transgender women in Fiji have experienced some form of violence, whether physical, sexual or psychological, upon the disclosure of their status as transgender, 63 per cent of transgender women have experienced physical violence, 36.8 per cent of transgender women have experienced sexual violence, and 73.7 per cent of transgender women have experienced emotional or verbal abuse since coming out.
[7] The leading transgender organisation working with the broader LGBTIQ movement in Fiji.
[8] Fiji Village (21 November 2020) accessed on 28 November 2024.
In “Fijian LGBTQIA+ advocate found dead after ‘intense’ social media bullying”,[9] which concerns the recent death of Ranadi Kei Viti, a popular Fijian LGBTQIA+ activist and social media influencer. The article quotes the prominent Fijian lawyer Jon Apted as stating: “Fiji social media has been out of control for a while now with flagrant personal bullying and nasty exposes being the daily norm on many accounts and on the large Fiji group sites”.
[9]RNZ (11 July 2024) accessed on 28 November 2024.
The Tribunal also notes the reporting of the recent murder of a transgender woman by a group of men and women after being taken from outside her home: N Naivalurua, “Vakasalewalewa community condemns transphobic reporting and calls on police for a comprehensive investigation into Ravato’s Murder”.[10]
[10] Fiji Village (15 April 2024) -police-for-a-comprehensive-investigation-into-Ravato’s-murder accessed 28 November 2024.
The Tribunal notes the following in the most recent United States Department of State 2023 Country Reports on Human Rights Practices: Fiji (22 April 2024), which reports that transgender women continue to face extremely high rates of sexual and gender-based violence, including routine harassment and targeting by police. Also, that strong and widespread social stigma contributes to a lack of trust in police and has thus discouraged victims from reporting crimes to authorities due to fear of further violence or harassment.
Does the applicant satisfy the refugee criterion for protection?
While the applicant has advanced other claims for protection in this decision record the Tribunal has discussed only those claims relevance to its decision.
In regard to the applicant’s identity, the Tribunal accepts the following:
·     The applicant is a woman who is transgender who refrained from presenting as a female and only presented as a male in Fiji for reason of fear of being seriously harmed if she presented as her genuine self.
·     Notwithstanding her attempts to hide her gender identity and sexual orientation when she lived in Fiji, she experienced physical sexual and verbal harm, having been identified as, or suspected of being, a member of the LGBTQI+ community.
·     She could not present as female in Fiji, and she could never live as a male again. In any event, even if she could present as a male, the Tribunal is satisfied that she would still face a real chance of serious harm because she previously experienced serious harm when presenting as male.
The Tribunal accepts that the applicant is a member of a particular social group, “transgender women in Fiji”. The Tribunal finds that transgender women in Fiji share or are perceived of sharing a characteristic, other than a fear of persecution, that is innate or immutable, so fundamental to a member’s identity or conscience that they should not be forced to renounce it, and that distinguish them as a group from society.
The applicant’s legal representative stated that the country information, unequivocally supports the applicant’s fears of harm from members of the Fijian community and authorities owing to her identity as a transgender woman. The Tribunal agrees and furthermore notes the escalating trends in threats and violence impacting transgender people in Fiji currently.
The Tribunal finds that the harm the applicant would face if she returned to Fiji would include further sexual, physical, and verbal abuse as well as harassment and discrimination from the wider public and from the Fijian community. The Tribunal also finds that the applicant could potentially be harmed by the authorities in Fiji and that she would face systemic harm because of exclusion and lack of access to services from government and other institutions that is generally available to people in Fiji, due to her being a transgender woman.
In the Tribunal’s view, based on its findings above and the country information referred to, and the applicant’s own credible account, the Tribunal is satisfied that the applicant fears being persecuted for reasons of her sexuality and being a transgender woman and there is a real chance that she would be persecuted for these reasons if she returned to Fiji in the reasonably foreseeable future. The Tribunal finds that the real chance of persecution relates to all areas of Fiji.
The Tribunal is satisfied that the persecution will be directed at the applicant for the essential and significant reason of her sexuality and being a transgender woman, it involves serious harm to her and that it involves systematic and discriminatory conduct in that it is deliberate or intentional and involves significant physical harassment and/or ill-treatment of the applicant and the threat to her liberty.
In consideration of the country information above referring to the issue of police protection which includes that transgender people are routinely harassed and targeted by police and that distrust in the institution effectively discourages victims from reporting crimes, the Tribunal is satisfied that the applicant will not be able to access effective state protection if she returned to Fiji. This is due to the discriminatory attitudes of the Fijian police towards transgender and non-heterosexual individuals.
The Tribunal finds that the applicant is unable to relocate to any other area of Fiji in order to prevent the harm or reduce the risk of harm to herself. This is because she cannot access meaningful domestic protection anywhere in Fiji because the societal and state discrimination is pervasive across Fiji. On the basis that effective protection measures are not available to the applicant anywhere in Fiji, the Tribunal finds that relocation would not provide safety to her.
Accordingly, the Tribunal is satisfied that if she returned to Fiji now or in the foreseeable future, the applicant would face a real chance of serious harm from the community and society in general and from the authorities, for the essential and significant reason of the membership of a particular social group of ‘transgender women in Fiji’. For these reasons she has a well-founded fear of being persecuted in Fiji.
The Tribunal is satisfied that the applicant cannot take reasonable steps to be discreet or modify her behaviour so as to avoid a real chance of persecution in Fiji because a modification would require her to alter her sexual orientation to conceal her true self. Accordingly, the Tribunal finds that the applicant has a well-founded fear of persecution for reasons of her sexuality and being a transgender woman in Fiji.
The Tribunal finds that the applicant is outside the country of her nationality and, owing to a well-founded fear of persecution, she is unable or unwilling to avail herself of the protection of that country. Therefore, the Tribunal finds that she meets the definition of refugee in s 5H(1) of the Act.
As the applicant meets the definition in s 5H(1), the Tribunal is satisfied she is a person in respect of whom Australia has protection obligations under s 36(2)(a).
As the Tribunal has found that the applicant meets the refugee criterion in s 36(2)(a) of the Act, it is not necessary to consider whether the applicant meets the criterion for the grant of a protection visa under the complimentary protection criterion in s 36(2)(aa).
Conclusion
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
Hearing Date: 11 September 2024
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.
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36   Protection visas – criteria provided for by this Act
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(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.
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