2105072 (Refugee) - [2024] ARTA 912

2105072 (REFUGEE) [2024] ARTA 912 (19 DECEMBER 2024)
DECISION AND
REASONS FOR DECISION
Representative:  Mr George Botros
Respondent:  Minister for Immigration and Multicultural Affairs

Tribunal Number: 2105072

Tribunal:General Member J Kotsifas
Date:19 December 2024

Place:Melbourne
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 19 December 2024 at 11:53am
CATCHWORDS
REFUGEE – protection visa – Fiji – particular social group – lesbian – family violence – estrangement from family – gender-based violence – mental health issues – state protection – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALO 347
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 REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 April 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant[1] is [an age]-year-old woman who claims to be a national of Fiji. She first arrived in Australia [in] June 2012 holding a sub class 309 Partner (Provisional) visa and has not departed since her arrival. She applied for her protection visa on 6 April 2017.
[1] Department File: [Number], Tribunal File: 2105072
On 19 April 2021, the delegate refused to grant the applicant’s visa on the basis that she is not a person to whom Australia has protection obligations.
The applicant applied to the Tribunal for a review of the delegate's decision on 21 April 2021.
The applicant appeared before the Tribunal on 12 December 2024 to give evidence and present arguments. The applicant was represented at the hearing.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
BACKGROUND
The applicant’s personal background
The applicant was born in [City 1], Fiji and raised in [Town 1] and Suva. She is single and has never married. Her parents are divorced and following the divorce, the applicant, her mother and sister subsequently moved to Nadi to live with her maternal grandmother.
The applicant arrived in Australia [in] June 2012 when she was [age] years of age. She came to Australia with her mother on sub class 309 Partner (Provisional) visa which was granted to her mother as the primary visa applicant. The applicant was a secondary applicant and dependent child on her mother’s visa.
The applicants’ mothers sub class 100 (partner) visa was determined by a differently constituted Tribunal on 1 April 2016 which decided to affirm the department’s decision not to grant the Partner visa. The Federal Circuit Court subsequently remitted the matter to the Tribunal for reconsideration and on 26 March 2020, a differently constituted Tribunal affirmed the decision not to grant the Partner visa.
Upon arrival to Australia in 2012, the applicant lived with her mother and but moved out of home when she was [age] years of age after completing [school].
The applicant has been employed as a [manager] as well as being self-employed.
The Tribunal accepts the above matters to be true.
Evidence before the Department
The applicant’s initial claims for protection
The applicant’s claims can be summarised as follows:
Sexual Orientation
·The applicant is a lesbian and fears returning to Fiji on this basis.
·Fijian society is very religious and homophobic, resulting hostile attitudes towards LGBTQI+ individuals.
·The applicant believes the authorities in Fiji will not protect her because they are against same sex relationships and there is societal taboo surrounding same sex relationships.
·The applicant will be persecuted, experience hostility, discrimination and be subjected to societal stigma and violence by her family members and Fijian society in general.
Mental Health
·     The applicant has struggled with mental health issues as a result of years of abuse by her mother and other family members. Returning to Fiji will exacerbate her trauma and she will suffer serious psychological harm.
Land Dispute
·     The applicant’s maternal grandmother has left her land in Fiji resulting in a family feud. She fears harm from family members that are making claims to the land.
Physical abuse from mother and other relatives
·     The applicant fears harm from her mother who has physically abused her from a young age.
·     The applicant also fears harm from men in her family including her uncle who physically assaulted her whilst she lived in Fiji.
Inability to relocate/resettle in Fiji
·The applicant cannot return to Fiji as she no longer has any family connections, has nowhere to live and is unable to support herself financially.
The interview
Department records indicate that the applicant was interviewed on 3 December 2020. In the interview the applicant responded to questions and elaborated on her claims.
The delegate’s decision
The delegate accepted that the applicant has experienced physical and verbal abuse from her mother continuously both in Fiji and Australia, that she experienced physical abuse from her uncle on one occasion in Fiji and that she identifies as a lesbian. The delegate also accepted that the applicant had mental health issues in the past.
However, the delegate was not satisfied that discrimination against LGBTQI+ people in Fiji is so severe that it amounts to persecution. The delegate found that given the significant period of time which had lapsed since the applicant left home, there is not a real chance that the applicant would be targeted by her mother if she returned to Fiji. With respect to the physical abuse from her uncle, the delegate found that the applicant experienced physical abuse from him, but that incident was remote and occurred in Fiji more than nine years ago. The delegate did not consider the applicant’s claim that she was unable to resettle in Fiji related to any of the refugee grounds contained in s 5J(1) of the Act.
Considering the applicant’s claims cumulatively, the delegate found there was not a real chance that the applicant would face serious harm in future if she returned to Fiji for any of the reasons claimed and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Fiji, there is a real risk the applicant will suffer significant harm as outlined in s36(2)(aa) of the Act.
Evidence before the Tribunal
Documents before Tribunal.
·Statutory Declarations of the applicant sworn 24 March 2017, 26 September 2017, 20 October 2020 and 19 November 2020.
·Statutory Declaration of the applicant’s friend [Ms A] sworn on 24 March 2017.
·Letter from the applicant’s doctor dated 10 December 2020 confirming the applicant attended six psychology sessions with the clinic’s psychologist between 2019 – 2020.
·Letter from applicant’s high school youth worker dated 2 February 2016 which was sent to the applicant’s doctor raising concerns about the applicant’s mental health and seeking that a mental health assessment and mental health plan be initiated for the applicant.
·Emergency medical record dated 26 October 2016 confirming the applicant presented to the [named] hospital following a suicide attempt.
·Report from the Team Leader of [Health Service 1] dated 6 April 2017 confirming that the applicant had completed 9 counselling sessions and that she continues to be at serious risk of significant physical and emotional harm if she was returned to Fiji.
·Various 2013 reports from [Agency 1] outlining their involvement with the applicant and her mother following complaints that the applicant’s mother has physically abused the applicant.
·Written submissions from the applicant’s legal representative.
The Tribunal asked the applicant whether she had prepared her own protection application. She indicated that her previous lawyer had assisted her to prepare and lodge her claims for protection, but they had neglected to make any claims relating to the applicant’s sexual orientation. The applicant told the Tribunal that her current lawyer finally assisted her to raise these claims in November 2020.
The Tribunal read the above claims as summarised by the Tribunal to the applicant to ensure their accuracy and the applicant confirmed that the claims as read to her were correct.
The applicant’s sexual orientation
The applicant’s evidence may be summarised as follows:
·Her understanding of her sexual orientation was limited while living in Fiji due to the societal taboo surrounding same-sex relationships.
·She was approximately 13 years of age when she began to feel attracted to females.
·Same sex relationships were taboo in Fiji and never discussed and she did not understand the feelings she had and had no one to talk to about her feelings.
·She was [age] when she came to Australia and began learning about the LGBTQI+ and same sex attraction during sex education at school.
·She began experimenting at 16 and had a girlfriend that she dated for a few months whilst they were both at school.
·She tried having a discussion with her mother about same sex relationships whilst preparing for a debate at school and the topic for debate concerned the legalisation of same sex marriage. When she tried to talk to her mother about this topic, her mother became hostile and expressed her extreme disapproval of same sex relationships. From then on, the applicant was too afraid to talk about her sexuality with her mother.
·She left home in 2015 when she was [age] years of age.
·She started dating women when she was 18 years of age and used a variety of dating apps and online forums to meet women.
·At 22 years of age, she met a woman, and this was her first serious relationship. After dating for several months, they started living together albeit they were sharing accommodation with another friend. Whilst living together they had a joint bank account, a lease in both names and they shared household duties and living expenses. They were together for 4 years before the relationship ended in February 2024.
·She dated other women after the relationship with her previous partner ended and in June 2024, she met her current partner. In September 2024 they committed to each other to the exclusion of all others. The applicant has met her partner’s family. The applicant and her partner plan to live together soon.
·The applicant fears being harmed by her family and men in Fiji. She has nowhere to stay as she has lived most of her life in Australia. If returned to Fiji, she fears serious and significant harm from relatives, the community in general and the police because of her sexuality. She fears being seriously assaulted, raped and even killed.
The Tribunal asked the applicant if she had ever told her mother or any of her relatives that she was a lesbian woman. The applicant stated that she had not disclosed her sexuality to anyone in her family because they are all deeply religious, conservative, non-accepting of LGBTQI+ individuals, oppose same sex marriage and would be motivated to harm her and physically assault her. The applicant told the Tribunal that in her family and culture, being gay is taboo.
The Tribunal asked the applicant about her sister, and she stated that her elder sister had come to Australia on a student visa approximately 4 years before the applicant arrived in Australia, but her sister is estranged from all members of her family including her mother and the applicant herself. The applicant stated that she has not seen or spoken to her sister for many years and last saw her when they were both living in Fiji. The applicant stated that she does not know whether her sister is still in Australia and has made no attempt to contact her.
The Tribunal asked the applicant whether she is in contact with her mother and she told the Tribunal that she has not had any contact with her mother since 2015 when she left home at [age] years of age. The Tribunal also asked the applicant if she was in contact with any other members of her family including her biological father in Fiji. The applicant stated that she has had no contact with any member of her family since she was [age] years of age. She also told the Tribunal that she does not wish to have any contact with any member of her family or any relatives in Fiji.
The applicant told the Tribunal that her mother had been abusive to her from a very young age which caused the applicant to suffer from extreme anxiety and depression whilst she was at school. The applicant stated that other members of her family physically abused her when she lived in Fiji particularly her uncle. The applicant stated that none of her family members would accept her as a lesbian woman and she would be isolated, ridiculed, discriminated against, persecuted, and abused verbally and physically. The applicant told the Tribunal that she feared for her life if she returned to Fiji as a lesbian woman. She told the Tribunal that she has no one to protect her in Fiji as she has been estranged from all her family members since 2015 when she left home, a period of nearly 10 years.
The Tribunal canvassed with the applicant what type of life she would lead if she was returned to Fiji. The applicant told the Tribunal that she has no place to live, has no friends in Fiji as she has lived in Australia since 2012 when she was just [age] years of age. The applicant stated that she does not have any connection with any family members in Fiji and she would be forced to live a life of fear. She told the Tribunal that she could not live any meaningful life in Fiji as a lesbian woman and she would be forced to hide her sexuality and modify her behaviour for the rest of her life for fear of being seriously harmed.
Country information
Treatment of LGBTIQ+ people
The Department of Foreign Affairs and Trade (DFAT) reports that whilst same-sex sexual activity was decriminalised in 2010 and the Constitution bans discrimination based on sexual orientation and gender identity or expression, same-sex marriage is still illegal in Fijil. Many LGBTIQ+ Fijians hide their identity due to homophobic and transphobic attitudes amongst Fijian society[2].
[2] DFAT, Country Information Report Fiji (May 2022) at 3.65.
DFAT reports that it is not common for LGBTIQ+ people to come out to their families, and when they do, they are often not accepted.[3] DFAT further reports that LGBTIQ+ people face a moderate risk of violence and are at risk of official and societal discrimination.
[3] Ibid at 3.60
According to DFAT, violence against LGBTIQ+ people in Fiji is underreported which further obscures the real prevalence of LGBTIQ+ violence that occurs.[4] Furthermore, societal discrimination also occurs when accessing goods and services when these are normally available to others.[5] LGBTIQ+ people also experience discrimination in employment and in other areas, including accessing healthcare and housing.[6]
[4] Ibid at 3.61
[5] Ibid at 3.62
[6] 'Freedom in the World 2024 - Fiji', Freedom House, 6 May 2024, 20240506153922; '2023 Country Reports on Human Rights Practices - Fiji', US Department of State, 22 April 2024, p.25, 20240423115757
Similarly, other organisations have concluded that homophobia in Fiji is commonplace, and the country has a very strong anti-gay religious movement[7] despite the decriminalisation of same sex sexual activity. The Department of Home Affairs cites independent sources which state that most LGBTIQ+ people live in poverty due to unemployment. According to the research, 62 per cent of LGBTIQ+ people are unemployed or involved in precarious casual work.[8]
[7] Ibid at 3.65
[8] Department of Home Affairs – Common claims – Fiji – Country of Origin Information Services (COIS) – 28 August 2024
DFAT reports that societal belief in the practice of ‘corrective rape’ of lesbians remains prevalent in the indigenous Fijian community, and DFAT has noted it cannot assess the prevalence of such practices.[9] The Department of Home Affairs also refers to research conducted by Diverse Voices and Action (DIVA) for Equality that found that 76.24 % of surveyed LGBTIQ+ people did not feel safe going to the police and lesbians had been beaten by the police due to their sexual orientation or gender identity.[10]
[9] DFAT, Country Information Report Fiji (May 2022) at 3.60
[10] Department of Home Affairs – Common claims – Fiji – Country of Origin Information Services (COIS) – 28 August 2024 – p.12 and DIVA for Equality concerned about the treatment of LGBTQI people by some police officers 13 September 2020
The Department of Home Affairs cites independent sources which state that violence against women is prevalent in Fiji and that the situation has worsened considerably in recent years, with NGOs reporting a ‘concerning increase’ in gender-based violence since the COVID-19 pandemic.[11] DFAT also assesses that strong family ties, loyalties and traditional hierarchies often act as protection for perpetrators of violence against women. [12]
[11] Department of Home Affairs – Common claims – Fiji – Country of Origin Information Services (COIS) – 28 August 2024 – P.8
[12] DFAT, Country Information Report Fiji (May 2022) at 3.57
In its report published in May 2019, DIVA stated that in Fiji as in other settings, being LGBTI often carries with it a stigma underpinned by a belief that one is bad, incomplete, sick, immature, unskilled, sinful, or generally undesirable.[13] A survey from 2011 published by the Fiji Women’s Crisis Centre found that almost two thirds of the country’s women experienced domestic and sexual violence during their lifetime and that the lifetime prevalence of intimate partner violence in the Eastern Division of Fiji was one of the very highest recorded to date in the world.[14]
[13] Diverse Voices and Action (DIVA) for Equality, Research Report, May 2019 – Unjust, Unequal, Unstoppable – FIJI Lesbians, Bisexual Women, Transgender and Gender Non-Conforming People Tipping the Scales Toward Justice - p.8
[14] 'Somebody's Life, Everybody's Business! National Research on Women's Health and Life Experiences in Fiji (2010/2011): A survey exploring the prevalence, incidence and attitudes to intimate partner violence in Fiji', Fiji Women's Crisis Centre (FWCC), 11 December 2013, available at CIS36DE0BB1725, (FWCC Report 2013), pp. 2-6, 10.
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 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.
The most recent report from DFAT is the Country Information Report for Fiji 20 May 2022.The Tribunal has considered this report, as well as other relevant country information referenced in this decision.[15]
[15] DFAT Country Information Report Fiji – 20 May 2022
REASONS AND FINDINGS
The issue in this case is whether there is a real chance that if the applicant returns to Fiji they will be persecuted for one or more of the 5 reasons set out in s 5J(1)(a) for the purposes of s 36(2)(a) of the Act and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that they will suffer significant harm for the purposes of s 36(2)(aa) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be set aside, and the matter remitted for reconsideration.
Based on the evidence before the Tribunal, the Tribunal accepts and finds that the applicant does not have a right to enter and reside in a country other than their own country of origin – Fiji. Therefore, the Tribunal accepts that s 36(3) of the Act does not apply to the applicant’s circumstances.
In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is ‘well-founded’ or that it is for the reason claimed. A fear of persecution is not ‘well-founded’ if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for them. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[16]
[16] MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169–70.
When assessing claims, the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness, and anxiety in a Tribunal environment. There may also be memory issues resulting from the lapse of time and cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is taken into account in these findings.
On the other hand, as stated previously, the Tribunal is not required to accept uncritically any, or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant’s country of nationality.[17]
[17] Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALO 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547
Country of nationality
The applicant travelled to Australia on an apparently genuine Fijian passport, a copy of which is contained in their Departmental file.[18] They have at all times stated that they are a citizen of Fiji and have been assessed on that basis by the Department.[19]. The Tribunal finds that the applicant is a Fijian citizen and has assessed her claims against Fiji as the country of nationality and the receiving country.
The applicants LGBTIQ+ claims
[18] Department File: [Number], Tribunal File: 2105072
[19] Ibid
Having considered the applicant’s evidence and all the material before it, the Tribunal accepts that the applicant is a lesbian woman who in currently in a same sex relationship with her current partner. The Tribunal accepts that the applicant has been in previous lesbian relationships and in a long-term relationship for 4 years before this relationship ceased in early 2024.
The applicant’s evidence was open, candid, credible and compelling. She told the Tribunal about her mental health struggles as a young girl and about her mother’s physical abuse which led to the applicant leaving home at [age] years of age. The Tribunal has independent information before it to find that the applicant has been subjected to physical and emotional abuse by her mother and other relatives from a very early age. As early as [year], when the applicant was only 15 years of age and at school, the abuse that the applicant endured from her mother, required the intervention of Child Protective Services.
The Tribunal accepts the applicant’s evidence that she has not disclosed her sexual orientation to her mother or to any other member of her family. The Tribunal accepts that she has not done so because she feared bringing shame to her family, she would be breaking societal taboos that are deeply entrenched in Fijian society and she would be verbally and physically abused by her mother, her family members and the Fijian community in general. The Tribunal accepts the applicant’s evidence that by disclosing her sexual identity, her family who are deeply religious, would not accept her sexuality and would never allow her to live an independent life as a lesbian.
The Tribunal accepts that since leaving home at [age] years of age, the applicant has lived her life in Australia as a lesbian woman and that if she were to continue to do so in Fiji if returned, she would be subjected to serious harm. The Tribunal accepts the applicant’s evidence that if she returned to Fiji, she would have to hide her sexual identity and would not be able to live openly as a lesbian woman. In this regard, the applicant’s claims are consistent with the DFAT country information that has previously been referred to, namely, that many LGBTIQ+ Fijians hide their identity due to homophobic and transphobic attitudes amongst Fijian society[20].
[20] DFAT Country Information Report Fiji – 20 May 2022 at 3.65
The Tribunal finds that the applicant would face harassment and discrimination and potentially exploitation and physical violence if she lived openly as a lesbian in Fiji and that such harm and ill treatment amounts to serious harm. The Tribunal finds that on the evidence before it, there is a real chance the applicant would suffer serious harm in Fiji now and in the reasonably foreseeable future and that the real chance of serious harm relates to all areas of Fiji. The harm that the applicant fears is for reason of her sexual identity as a lesbian woman and for the purposes of s 5J(1)(a) and s 5L of the Act, the applicant’s gender and her membership of the particular social group of ‘lesbian/gay women’ is the essential and significant reason for her feared harm. This characteristic is shared by each member of the group, the applicant shares this particular characteristic, and the characteristic is innate or immutable. Being a lesbian woman is fundamental to the applicant’s identity and the Tribunal finds that for the purposes of s 5J(3), any modification of the applicant’s identity would require her to alter her sexual orientation or conceal it.
Further, having regard to the country information before it that suggests that state protection is not consistent[21], the Tribunal finds that the applicant would not be able to access effective protection from the Fijian authorities in respect of violence perpetrated against LGBTQI+ people as well as gender-based violence.
[21] Ibid at 3.53
For the reasons given, the Tribunal finds that the applicant has a well-founded fear of persecution for reason of her membership of the particular social groups if she were to return to Fiji, now or in the reasonably foreseeable future.
The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s36(2)(a).
Given the Tribunal has found that the applicant has a well-founded fear of persecution for the reasons referred to, it is not necessary for the Tribunal to deal with the applicant’s remaining protection claims.
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: 12 December 2024
Representative: Mr George Botros
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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