2101422 (Refugee)
[2025] ARTA 1312
•31 March 2025
2101422 (REFUGEE) [2025] ARTA 1312 (31 MARCH 2025)
DECISION AND
REASONS FOR DECISION
Representative: Ms Jesheka Jeyaneshan
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2101422
Tribunal:General Member K Hoang
Date:31 March 2025
Place:Brisbane
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 31 March 2025 at 6:28pm
CATCHWORDS
REFUGEE – protection visa – Fiji – particular social group – women – victims of family violence – physical assault – coercive control – gender-based violence – mental health issues – state protection – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 367, 499
Migration Regulations 1994, Schedule 2CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347Any 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 REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 January 2021 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 national of Fiji, applied for the visa on 26 March 2020. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations under either the refugee criterion or complementary protection criterion.
The applicant appeared before the Tribunal on 25 February 2025 to give evidence and present arguments. The applicant gave her evidence in English without the assistance of an interpreter. Having conducted the review, I am satisfied that the Tribunal has given the applicant a meaningful opportunity to present evidence and arguments.
The applicant was represented in relation to the review by Ms Jeyaneshan from WLW Lawyers. The representative was present at the hearing.
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.
RELEVANT LAW
The relevant law governing the criteria for the grant of a protection visa are set out in the Attachment.
BACKGROUND
The applicant is [age] years old. She is ethnically Fijian and is religiously Christian.
She was born in Suva. Her biological parents separated prior to her birth, and she was adopted by family friends who attended the same church as her biological parents. She has . The applicant was raised by her adoptive parents alongside her biological brother, who moved in with them at the age of [age].
The applicant completed primary and secondary school in Suva and went on to complete a [specified qualification] in [specified year]. She began studying for a [further course] but withdrew from studying after she obtained employment at [Agency 1] of Fiji. The applicant retained employment at [Agency 1] from [year] to 2020.
The applicant arrived in Australia in 2020 on a visitor visa and lodged her application for protection on 26 March 2020. The applicant lodger her protection visa application along with her husband [Husband A], who was named as the secondary applicant on the application.
Evidence before the Department
In her protection visa application, the applicant claimed that she left Fiji because she needed a break from all the issues she had been facing in her workplace, there is no freedom of movement and the right to work, and she has experienced psychological harm. She claimed she was depressed and would continue to suffer psychologically were she to return, and the government of the day is causing people of Fiji to be depressed. She claimed that she was unable to seek help and was afraid that, if she did, she will be taken to task by the military and the police.
The Department did not offer the applicant an interview.
The delegate accepted that the applicant may support free speech and democracy. However, the delegate found on country information that she could express her views freely within the limits of the law. The delegate was not satisfied the applicant will face a real chance of serious harm because of her political opinion. Nor was the delegate satisfied that the applicant has a political profile that would attract adverse attention from the current Fijian government and found the applicant would not face a real chance of harm on that basis.
With respect to the applicant’s claims about issues at her workplace and uncertainty of her employment, the delegate was not satisfied on the available country information that there is a real chance the applicant would suffer economic hardship that amounts of serious harm. Nor was the delegate satisfied that the applicant would suffer economic hardship amounting to ‘serious harm’ for the purposes of complementary protection assessments.
With respect to her claims of mental health, the delegate found that the applicant would have access to mental health care in Fiji, and there was nothing to suggest that she would be denied access to care by the government for one or more of the reasons set out in s 5J(1)(a).
For all the reasons above, the delegate was not satisfied the applicant is a person in respect of whom Australia has protection obligations.
CLAIMS AND EVIDENCE
Evidence before the Tribunal
Pre-hearing submissions
Prior to the hearing, the applicant’s representative provided to the Tribunal the following documentary evidence and information:
·legal submissions dated 18 February 2025;
·country information on domestic and family violence in Fiji;
·statutory declaration from the applicant, dated 18 February 2025;
·a Fiji Police medical examination form, dated [in] December 2011;
·copy of text messages sent from the applicant’s brother [Brother A] to her husband [Husband A], dated 10 January 2021.
·a copy of a Queensland Police Protection Notice dated [in] January 2021; and
·a support letter from [Agency 2], dated 13 February 2025
The hearing
At hearing, the applicant explained that she had been to Australia previously for holidays. Her husband came to Australia in 2019 and she joined him at the beginning of 2020. She explained that her husband wanted to apply for a protection visa, and they were assisted by a person in Sydney who charged them AUD $600 to draft and lodge the application. The applicant stated that she instructed the agent to put her husband as the primary applicant, because he had a fear of return due to the police and his political opinion. However, the agent lodged the application without giving them an opportunity to review the application. She stated the agent had wrongly put her as the primary applicant and the claims in her protection visa are false. The applicant requested that I only assess the claims as presented to the Tribunal.
The applicant’s claims are as follows.
The applicant married her first husband, [Husband B], in 1995 and they were married in 1997. She told the Tribunal that the marriage ‘seemed ok’ and everything was well for about three years. [Husband B] then started showing abusive behaviour towards her. She recalled an incident when she was [age], whereby [Husband B] observed her speaking to a gay male friend outside whilst waiting for him to pick her up. The applicant was left to walk home by herself, and upon return, [Husband B] beat her and dragged her along their driveway while his relatives watched on from inside the house. She did not report the matter to the police because it was embarrassing. She was told by her relatives that she should not be speaking to other men and to come straight home because the men get too jealous. The applicant said if she went out with her friends and came back late, she was told by her relatives she should be at home looking after her child.
The applicant gave evidence her first marriage lasted [number] years, during which she was emotionally abused until she broke down. She said the last straw was when she realised that [Husband B] had molested her half-sister. When the applicant confronted [Husband B], and she was punched repeatedly. The applicant said she believed her half-sister’s side of the story. The applicant referred to the police incident form supplied to the Tribunal. The form notes the applicant alleged she was assaulted by her husband and the attached medical report noted the applicant sustained bruising to her face and neck.
The applicant went to the police to report these incidents but was told that she should try and reconcile with the marriage, as once it goes to court ‘there is no urning back’. The applicant gave evidence that she wrote a letter to [Police management] complaining about the inadequate police response. She said she received a response, and a Domestic Violence Order (DVO) was issued requiring [Husband B] to leave the house to allow her and her daughter to continue to reside there. However, after a year, the DVO was removed, and [Husband B] moved back into the house and the applicant left the home to find a place to rent. The applicant said her divorce to [Husband B] was finalised in 2012. She gave evidence that she is no longer in contact with [Husband B] and would only contact him in relation to their daughter. The applicant gave evidence that she does not fear [Husband B] upon return to Fiji.
The applicant explained that [Husband B] and her husband, [Husband A], are from the same village. After finding out that she had separated, [Husband A] contacted the applicant on Facebook, and they soon began a relationship. The applicant gave evidence that [Husband A] did not show any signs of being an abusive person at the start of their relationship and he had also recently separated from his wife. The applicant said [Husband A] was a police officer before they met.
The applicant and [Husband A] were married in 2015. She gave evidence that, in hindsight, there were signs of his controlling behaviour when he pushed for them to be married quickly. She said once they were married, he started to show signs of being controlling. This behaviour included hitting on her friends and demanding that she answer his calls at the first ring. After their marriage, they moved to the smaller [island], where [Husband A] was from and where he commenced farm work.
The applicant explained that [Husband A] kept constant tabs on her and became infuriated if she did not answer his calls immediately. He would call her coworkers and friends if he could not reach her. The applicant recalled an incident where she was walking home, and she did not answer a call from [Husband A] because her phone was in her bag. When she arrived home, [Husband A] grabbed her by the neck, pinned her up against a wall, punched a hole in the wall and smashed the TV. The applicant recalled that this was the first incident of physical violence.
She recalled another incident where he held a kitchen knife to her neck and said that if he saw her with another man, he would kill her. She said this caused her to fear him, as he does not just abuse her, but other people around him as well.
The applicant alluded to another incident when her half-sister came home for holidays and was staying in the home of the applicant’s and [Husband A]. After they all attended a party together, the applicant came home early and locked the bedroom door when she went to bed. [Husband A] returned home with the applicant’s sister and kicked the door down and stomped on her neck. The applicant’s sister heard her scream and called the police. The applicant said the police came but left shortly after speaking to [Husband A]. Her sister was afraid and later returned to Suva. The applicant gave evidence that she believed the police did not do anything because [Husband A] was an ex-police officer, and they had each other’s back. Her evidence was that police will counsel her to fix things privately with her husband.
The applicant said she had learned from his relatives that his ex-wife had complained about him and that his father was a police officer too. She believes [Husband A] was terminated from the police force for reasons of his religion, because the former police commissioner had wanted police officers to join his religion, and those who did not were terminated. When asked whether she had disclosed her experience of violence to anyone else in Fiji, the applicant said only her half sister knew, but it was also not hidden. She said if relatives saw him being abusive, they did not interfere. She said he is a big man and they feared him too.
The applicant gave evidence she attempted to leave the relationship many times, but [Husband A] would beg her to come back promising that he will change his ways. She said that she kept going back because it was her second marriage and she wanted to make it work. She believed that he could change but he never did. When asked why she thinks the cycle of violence continued, the applicant said she thinks it was borne out of jealousy. [Husband A] thought the applicant was talking to her ex-husband, and because she worked with a lot of men, he felt jealous and wanted to be ‘in control of everything’.
The applicant gave evidence that she came to Australia at [Husband A] invitation. Because of the abuse that was happening in Fiji, she considered that coming to Australia might result in a change to [Husband A’s] mentality, but this did not eventuate. The applicant gave evidence that when they arrived in Australia and moved to [Town 1], the abuse continued. She fled to Brisbane where her half-sister was residing at the time, with the intention that he would not find her. The applicant said that [Husband A] managed to track her down through Facebook, via her half-sister’s cousin. The applicant said [Husband A] came to Brisbane with one of her ex-husband’s nephews who convinced her to talk to him. [Husband A] apologised and convinced her to return within him.
She claims the abuse continued after they reconciled and moved to [Town 2]. The applicant stated around December 2020, her brother [Brother A], who is now an Australian citizen, came to visit them from Sydney. The applicant recalled an incident where they were driving, and [Husband A] called the applicant, and he was placed on speakerphone. [Brother A] heard verbal abuse being levelled at his sister, and later was an altercation between the two. The applicant claimed that, at this point, her brother decided to find his own accommodation in [Town 2].
The applicant said [Husband A] came back home, he started abusing her because of her brother’s behaviour. The applicant began packing her bags with the intention of leaving and staying with [Brother A]. The applicant was on the phone to [Brother A] who called the police. A female police officer came and spoke to [Husband A]. The applicant claims [Husband A] told the police officer that she is his wife, and she belongs to him, but was informed by the police officer that he may think that like that in his country, but not in Australia. The applicant reiterated that Fijian culture is that women must submit to their husbands who have control over them.
According to her statutory declaration, about a week after she moved out with [Brother A], [Husband A] came to their apartment and started yelling. [Brother A] argued with the [Husband A] and then called the police. According to the police protection notice, the applicant disclosed that she had been controlled during their 9-year relationship and that [Husband A] had threatened to kill her if she is with another man. The applicant reported to police that this was a regular occurrence. Police observed the applicant ‘to be fearful of the respondent and wanted protection’. The police report goes on to note that [Husband A] denied all domestic violence incidents and stated that he was the one in need of protection but could not articulate his reasons. Police served [Husband A] with a temporary protection order [in] March 2021. After the notice was issued, the applicant attended counselling sessions with [Agency 2].
The applicant said that after a while, she and [Husband A] reconciled again, and [Brother A] was very upset with her. The applicant reiterated that she had been married before and she wanted to fix her marriage. She said that [Husband A] wanted to move to [Town 3] and [Brother A] felt as though this was an attempt to isolate her. She said that she regrets her decision to reconcile with [Husband A] again, and from there things got worse.
The applicant said after the government in Fiji changed, [Husband A] asked if she would return to Fiji to with him. The applicant refused and told [Husband A] she feels protected in Australia. The applicant has not spoken to [Husband A] since he returned to Fiji towards the end of 2023.
When asked what she thinks might happen if she were to return to Fiji, the applicant said that [Husband A] will find her and harm her. She said because they are still legally married, from a cultural perspective, he still owns and controls her, and she does not want to return to that. She claimed that he knows the system in Australia is very powerful compared to Fiji. She said he has threatened to kill her in the past, and she fears that even if she applies for a DVO again, police could drop the matter. She stated that Fiji Islands are very small, and if he could find her in Australia, he will be able to easily track her down in Fiji. She does not believe that she can relocate elsewhere in Fiji because [Husband A] is an ex-police officer who has connections everywhere.
Post-hearing submissions
Post-hearing, the applicant provided a statutory declaration from her brother, [Brother A], dated 5 Mach 2025. The statutory declaration provides details consistent with the applicant’s oral evidence at hearing.
COUNTRY INFORMATION
According to DFAT’s 2022 Country Information Report into Fiji:[1]
[1] Department of Foreign Affairs and Trade, Country Information Report Fiji, 20 May 2022, p 17-18.
Women
3.49 Fiji is a traditionally male-dominated society and traditional gender roles are well-entrenched. According to World Bank figures, the participation rate for women is the lowest in the Pacific region at 35 per cent of the total labour force (by contrast, Australia’s rate is about 46 per cent of the total labour force). These figures are from 2019 and the impacts of the pandemic on the largely feminised tourism sector may have made the situation worse.
3.50 The 2021 US Department of State Human Rights Report notes that there are no laws that prevent women from participation in political processes, but that traditional gender roles restrict that participation in practice for iTaukei women. Similarly, iTaukei women are entitled to inherit land equally to men, but in practice this does not occur and many women work on land that is owned by their male relatives.
Violence against women and girls
3.51 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.
3.52 Reported cases of sexual assault are also high. According to media reports, 531 cases of rape were recorded against 240 victims, of whom 165 were minors, in 2020. The Fiji Women’s Rights Movement analysed rape cases in the High Court in 2020 and found a male perpetrator in all 81 cases and an average age of victims of 14 years. Spousal rape is illegal under Fijian law. In April 2021, a man who sexually assaulted his wife when she ‘refused intimacy’ was sentenced to a 6-year and 10-month prison term by the High Court in Lautoka.
3.53 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.
3.54 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.
3.55 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.
3.56 NGOs provide some services to women and girls who are subject to violence. For example, the FWCC offers a 24-hour telephone crisis counselling service that can coordinate emergency assistance throughout the country. Lawyers and counsellors might also be available to victims. Women’s domestic violence services reported an uptick in demand during the COVID-19 pandemic. Cyclones, which cause people to shelter together in their homes, have had a similar effect of increased violence.
3.57 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.
In 2025, the Fiji Women’s Crisis Centre (FWCC) reported an increase in the number of people seeking counselling for domestic violence matters, with over 3,000 people seeking support.[2] This appears to be a trend that has continued since the Covid-19 pandemic.[3] Despite some advancements in the form of improved legal frameworks, the FWCC remains concerned that police still treat domestic violence cases trivially.[4] Similar observations were made by Fijian lawyers in a report entitled Family Protection Orders in the Pacific in 2022, where they observed that, despite legal reforms, it is ‘patriarchal attitudes in our society that are preventing women from fully accessing justice’.[5]
ANALYSIS, REASONS AND FINDINGS
[2] FBC News, Surge in domestic violence cases, 2 January 2025, available at < accessed 31 March 2025.
[3] Al Jazeera, ‘Crisis within a crisis’: Violence against women surges in Fiji, 24 February 2021, available at < accessed 31 March 2025; Radio New Zealand, A 'dangerous' rise in domestic violence in Fiji, 24 September 2020, available at < accessed 31 March 2025.
[4] Fiji Village, ‘956 case of domestic violence reported to FWCC in 2024, Ali says police treat cases trivially’, 14 January 2025, available at < accessed 31 March 2025.
[5] Radhika Naidu, Swastika Narayan and Mele Rakai, Fiji’s Experience with domestic violence restraining orders in Family protection orders in the Pacific region: Report from a symposium held inApplicant’s identity and country of reference
Based on a copy of the applicant’s passport available on the Department’s file, I find that Fiji is her country of nationality and her receiving country for the purposes of refugee and complementary protection assessments.
Credibility and findings of fact
In assessing the applicant’s case, it is necessary to make findings of fact on relevant matters which may involve an assessment of the credibility of the applicant’s claims. I accept that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. However, the Tribunal is not required to accept uncritically any or all of an applicant’s claims,[6] and nor does the Tribunal require rebutting evidence before it can find that a particular assertion by an applicant has not been made out.[7]
[6] MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
[7] Randhawa v MILGEA (1994) 52 FCR 437 per Beaumont J at 451; Selvadurai v MIEA (1994) 34 ALD 347 per Heerey J at 348 and Kopalapillai v MIMA (1998) 86 FCR 547.
I note in this case that the applicant has presented new claims before the Tribunal that were not presented before the primary decision-maker. I have considered whether I must draw an inference unfavourable to the credibility of her claims under s 367A of the Act, however, I have determined that the applicant has provided a reasonable explanation for the lateness of her claims. I am, therefore, not required to draw any adverse inferences with respect to the credibility her claims due to their late assertion.
Moreover, I found the applicant to be a compelling and credible witness with respect to her claims. At hearing, she gave evidence in an unembellished and spontaneous manner that was consistent with documentary evidence provided to the Tribunal. Her claims to have experience coercive control, violence, and threats of death at the hands of [Husband A] were consistent with what she had previously disclosed to the police and to family violence support services. It is also consistent with witness evidence provided by her brother [Brother A]. Having regard to all the evidence before me, I find the applicant’s claims to be entirely credible.
I make the following findings of fact:
·the applicant was previously married to, and suffered family violence at the hands of her first husband, [Husband B];
·the applicant was initially denied protection by Fijian police and only obtained a DVO after she wrote a letter to [Police management];
·the applicant divorced [Husband B] and remarried to [Husband A] in 2015. They remain legally married;
·the applicant was the victim of controlling and violent behaviour by [Husband A] in the manner she has described in Fiji and in Australia;
·the applicant required police protection in Australia; and
·she has not seen [Husband A] since he departed from Australia in late 2023.
Does the applicant satisfy the refugee criterion for protection?
I will now determine, based on my findings of fact above, whether the applicant faces a real chance of serious harm for any of the reasons set out in s 5J(1)(a), were she to return to Fiji in the reasonably foreseeable future.
I find that the applicant would likely return to the [island], where she previously resided. I find that if the applicant were to return there, she will face a real chance of harm from [Husband A]. The evidence before me suggests that there has been a cycle of violence in their marriage, in which elements of ‘coercive control’ were present. I have considered guidance from the National Domestic and Family Violence Benchbook, which notes that ‘coercive control’ is the ‘golden thread’ running through running through risk identification and assessment for domestic violence.[8] The Benchbook identifies that coercive control:[9]
may involve the perpetrator spatially confining or restraining the victim; asserting exclusive possession over the victim; monopolising the victim’s skills and resources; restricting the victim’s access to finances and employment; or preventing the victim from keeping in touch with social networks, escaping the abusive relationship, or seeking help and support. The effect may be to physically and socially isolate the victim, and, over time, undermine the victim’s sense of identity, independence and self worth, and place them at greater risk of further domestic and family violence.
[8] Australasian Institute of Judicial Administration, National Domestic and Family Violence Benchbook, Factors Affecting Risk, available at < accessed 31 March 2025.
[9] Ibid.
The applicant’s evidence is entirely consistent with having experienced coercive control. She has been subjected to monitoring and surveillance, assertions that she belongs to her husband, threatened with death if she were seen with other men, and attempts to isolate her from her support network in Australia. I accept her evidence that this has occurred for a period of many years in Fiji and in Australia during the course of her marriage.
When looking into the reasonably foreseeable future, I am guided by the principle that past events often provide a reliable basis for determining the probability of their recurrence.[10] I note that a ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility, and a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[11]
[10] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, 574–5.
[11] Chan Yee Kin v MIEA (1989) 169 CLR 379.
While I acknowledge the applicant has not had any contact with [Husband A] since he departed in late 2023 — which may indicate that he no longer has any interest in her — other factors in the applicant’s personal circumstances point to the existence of a real chance of harm. I consider it not remote the possibility that the applicant may need to contact with [Husband A] in the reasonably foreseeable future, for example, if she wished to proceed with a formal divorce. I place weight on the fact that a cycle of violence and control has occurred over a period of many years. This would tend to indicate that it is not remote that the cycle may continue into the reasonably foreseeable future, particularly given there has not been a period of prolonged separation and they remain legally married. I contrast this with the applicant’s ex-husband, whom she does not fear, and with whom she has not had any contact since around 2012. Further, I consider the applicant’s vulnerability to be heightened upon return to Fiji, because protective factors that she has in Australia are not available to her there. These include the presence of her biological brother — who has provided her with considerable support and protection in Australia; — and access to state protection which as discussed below, is not guaranteed in Fiji. Further, she would return to a patriarchal society in which rates of family violence against women are extremely high. Country information advises that shelters and NGO support is limited in outer islands where the applicant would return to. When I consider the circumstances of the applicant in totality, I cannot dismiss as remote or farfetched the chance that she will suffer harm at the hands of [Husband A] in the reasonably foreseeable future.
The applicant’s representative submitted that she fears persecution cumulatively on the bases of being a woman in Fiji, a victim of family violence and a person who is in a relationship with an ex-policeman. Having regard to s 5L(a)-(d), I accept that ‘women in Fiji’ are a particular social group. I find that the applicant’s gender as a woman is a characteristic shared by each member of the group, the applicant shares such a characteristic which is innate or immutable, and it is not a shared fear of persecution.
Having regard to the examples of serious harm in s 5J(5), I am satisfied that the harm feared by the applicant includes significant physical harassment or ill-treatment, and a threat to her life or liberty. I am satisfied that the essential and significant reason for the persecution is her membership of a particular social group. This is because the evidence suggests that [Husband A] holds the view that women do not have equal rights to men and that the applicant belongs to him. The evidence suggests that such a worldview continued to underpin his behaviour in Australia. I give weight to the applicant’s evidence that [Husband A] expressed such a view to police and was told that the applicant has rights in Australia as a woman. I consider that [Husband A] views on gender to be the underlying reason for his actions in coercively controlling the applicant. I am therefore satisfied that the essential and significant reason for the persecution is the applicant’s membership of a particular social group, ‘women in Fiji’.
I accept that the harm involves systematic and discriminatory conduct against the applicant, having regard to s 5J(4)(c). Further, I accept the applicant’s claims that serious harm extends to all areas of the receiving country. I place weight on the fact [Husband A] was able to track the applicant down in Australia when she attempted to flee the relationship, and, given that he is an ex police officer, I accept the applicant’s submissions that he might have connections and resources to track the applicant across all areas of Fiji. I am further guided by country information above which suggests that traditional hierarchies can protect perpetrators and relocation is not necessarily helpful given Fiji is relatively small and people can be tracked down through kinship networks.
I have considered whether effective protection measures are available to the applicant under s 5LA. While I accept the existence of legal frameworks to protect women against gender-based violence, country information above suggests that police protection is not available consistently. Indeed, the applicant’s previous experiences with police protection is consistent with country information that police often advise women to reconcile with their husbands/partners. It is also of some concern that the applicant had to personally write to [Police management] for action to be taken in respect of her first husband. I am further guided by country information that despite the ‘no dop’ policy with respect to police investigations, this is not implemented uniformly in practice. When I consider the applicant’s previous experiences alongside country information, I am not satisfied that effective protection measures are available to her.
Lastly, I do not consider that this is a situation whereby the applicant can take reasonable steps to modify her behaviour under s 5J(3).
I have carefully considered the applicant’s circumstances and claims, and I am satisfied that she has a well-founded fear of persecution in Fiji. The applicant is a refugee under s 5H(1) and I am satisfied that she is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having found that the applicant is a refugee, it is not necessary for me to consider the applicant’s claims against the complementary protection criterion.
There is no evidence or indication that the applicant has a right to enter and reside in any other country. Accordingly, I find she has no such right and that she is not excluded from Australia’s protection by s.36(3) of the Act.
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.
Date of hearing: 25 February 2025
Representative for the applicant: Ms Jesheka Jeyaneshan
ATTACHMENT - Criteria for 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 below.
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 below.
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.
Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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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.
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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.
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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.
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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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December 2021, Edited by Judy Putt and Lindy Kanan, December 2022, pp 45-49.
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