2110237 (Refugee)

2110237 (Refugee) [2024] AATA 3534 (30 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Andrew Wun Nam Au (MARN: 1686684)
CASE NUMBER:  2110237
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Noelle Hossen
DATE:30 July 2024
PLACE OF DECISION:  Perth
DECISION:The Tribunal remits the matter for reconsideration with the following directions:
(1) that the applicants satisfy s 36(2)(a)
(2) that the second and third named applicants satisfy s36(2)(b)(1) of the Migration Act, based on membership of the same family unit as the first named applicant.

Statement made on 30 July 2024 at 2:35pm
CATCHWORDS
REFUGEE – protection visa – Fiji – particular social group – single women in Fiji – domestic violence – physical abuse – emotional or psychological abuse – debilitating effect – state protection – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 August 2021 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Fiji, applied for the visas on 25 January 2017. The delegate refused to grant the visas on the basis that the applicants are persons in respect of whom Australia does not have Protection obligations.
The applicants appeared before the Tribunal on 24 July 2024 to give evidence and present arguments.
The applicants were represented in relation to the review. The representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
IDENTITY ASSESSMENTS FOR ALL APPLICANTS
The first named applicant was born on [date] in Fiji. The first named applicant provided a Fijian birth certificate registered on [date]. There was no evidence that the document was a bogus document. The Delegate of the Department found that the first named applicant’s identity is as stated. The Tribunal accepts that the applicant is a citizen of Fiji.
The second named applicant provided the following documents to verify his identity, nationality, and citizenship to the Department namely:
Fijian Birth Certificate issued to [the second named applicant] born on [date] registered on [date] in [City 1].
Certified copy of Fijian Passport bio data page for [the second named applicant] born on [date].
High School Provisional Results notice 2017.
There was no evidence that the documents were bogus documents. The Delegate of the department found that the second named applicant did provide sufficient evidence of his identity and nationality.
The third named applicant provided the following documentary evidence of his identity, nationality, and citizenship namely:
Fijian birth certificate issued to [the third named applicant] born on [date], registered [on date] in [City 1].
Certified copy of Fijian Passport data page for [the third named applicant] born [date], registered [date] in [City 1].
There was no evidence that the documents were bogus documents. The delegate of the Department found that the third named applicant did provide sufficient evidence of his identity and nationality.
There is no evidence that the applicants have a right to enter and/or reside, whether temporarily or permanently, in any other country. Therefore, based on the documents provided the Tribunal finds that they are citizens of Fiji and as such their protection claim will be assessed against Fiji as the country of reference and “receiving country” respectively.
Applicants’ migration history
The first named applicant arrived in Australia [in] December 2006 on a sponsored family visitor visa. She departed Australia [in] January 2007. She applied for a further family sponsored Visa, but it was refused on the 26 March 2009. She arrived in Australia on a Visitor Visa [in] March 2014 and departed [in] April 2014.She arrived on the last occasion to Australia [in] November 2016 and applied for the Protection Visa on the 24 January 2017.Her Visitor Visa ceased on the 28 February 2017.
The second named applicant arrived in Australia [in] April 2018 on a Visitor Visa. His Visa ceased on [date] July 2018. He applied for a Protection Visa on the 26 April 2019. He was granted a Bridging Visa E. The second named applicant does not have a right to work in Australia.
The third named applicant arrived in Australia on a visitor visa [in] May 2018. He applied for a Protection visa on the 26 April 2019.The second named applicant does not have the right to work in Australia.
Claims for protection.
The first named applicant’s claim was summarised by the delegate of the department in her Decision as follows:
Her de facto partner was a [Occupation 1] who physically abused her throughout their relationship from 1997 until her arrival to Australia. He would punch, kick, and bite her and use objects to assault her with, resulting in bruises and black eyes.
While pregnant with both of her sons in Fiji, she slept outside in fear.
Her partner knew all her relatives in Fiji and would locate her whenever she left home.
She suffered suicidal ideation as a result of the abuse she faced from her partner.
She was threatened and intimidated by her partner not to tell anyone about the abuse or to report it to police. She tried to lodge a report at [City 1] police station on one occasion, however no action was taken. Her partner questioned her about the report after she filed it, indicating it was not filed in confidence.
She was unable to relocate to another part of Fiji due to her employment obligations required to support her children and the fact she had no one else in the country to assist her. However, she has two brothers in Australia who supported her arrival in order to escape family violence.
The police department in Fiji can protect her, however she feels sorry for her two sons who favour their father, as he provides them with incorrect information, influencing them to take his side. Her two sons are currently residing with their father in the family home.
She provided supporting documents including a support letter from her brother [Mr A], employment history report and a statutory declaration signed by her and dated the 7 April 2021, and her further claims were:
Her partner would physically abuse her when she refused to give him money for alcohol. There was not a single day that she can recall where he did not drink.
Her partner threatened to kill her on countless occasions if she refused to appease his sexual or monetary demands. She was nearly sexually assaulted on one occasion by her partner in front of her children.
Whilst there were numerous assaults that occurred throughout their relationship, the applicant recalls being sexually assaulted just after her eldest son was born, resulting in suicidal ideation. She recalls being physically assaulted by her partner while under the influence of alcohol, resulting in black eyes. As she was on maternity leave, she was confined to the home.
Several years ago, during Cyclone Winston, her partner appeared at her workplace under the influence of alcohol demanding that she return home with one of her sons in the vehicle. Police witnessed the event but did not intervene.
On another occasion, while her partner was driving under the influence of alcohol with her and one of their sons in the vehicle, he pulled over in front of the police station at her request, but they did not take her complaint.
On another occasion, an altercation occurred when her partner took the third named applicant to [named location]. She physically assaulted her partner who phoned the police. While they were both taken to the police station to make statements, no action was taken.
After continually receiving no support from police, she stopped reporting the abuse.
She often stayed at friends’ houses overnight, but ceased doing so, as her partner would harass them to locate her. It also did not take long for him to locate her due to word of mouth.
While the physical abuse she encountered was never so severe that it required hospitalisation, she was greatly emotionally and mentally impacted and has been receiving counselling for the past 10 years from her pastor.
She did relate the abuse to others, and she was urged to report it to authorities. Her colleagues in Fiji were aware of the abuse she was experiencing.
She confided in her brother in Australia regarding the abuse she was experiencing through phone conversations. Her brother and his spouse travelled to Fiji in 1999 and offered to take care of the applicant’s eldest son in Australia. However due to the son’s young age she declined this offer.
She travelled to Australia for the first time in 2006 to visit her brother and to escape the abuse she was experiencing. Her brother advised her to remain in Australia however she returned to Fiji due to the young age of the children in the hope her partner would change.
In 2015 she travelled to [Country 1] to visit another brother and to potentially never return to Fiji. However, she returned to Fiji due to concerns for her children’s welfare.
She travelled to Australia in December 2016 due to her home situation worsening in Fiji and to be with her brothers. Both brothers had migrated to Australia.
She never intended to remain in Australia on a permanent basis as her life was in Fiji, along with her property and friends.
She wishes to remain in Australia with her 2 brothers and 2 sons in safety from her abusive partner and where her children can pursue their dreams away from their father.
She has not been in contact with her partner since departing Fiji for Australia. Her children are no longer in contact with their father, and he does not have her Australian phone number.
She believes that her partner will locate her if she returns to Fiji as she has provided him with numerous opportunities to change and believes he may feel betrayed and suspect that she has left him for someone else while in Australia.
If she returns to Fiji she will be forced to live with her abusive partner as there is nowhere else, she could remain on a long-term basis.
She is unable to relocate to any part of Fiji to escape harm due to new spreading quickly by word of mouth of her location and because of her partner’s past career in the police force. Despite her partner’s age, he is fit and strong and capable of physically harming her.
She has considered residing in a women’s refuge if she returned to Fiji however being only for women, her 2 adult sons would not be able to reside with her. Furthermore, the shelter would only offer temporary accommodation and is not a long-term solution.
She has no close family left to reside with, as her parents have passed away and the 2 remaining brothers in Fiji are unable to provide her with support because one of her brothers has a history of incarceration and the other has a number of health concerns.
She fears that her sons will be forced to reside with their father if they return to Fiji as they are not independent and unable to live on their own.
She does not recall how many times she has attended the police station or made phone calls to report her partners abuse however no significant action has ever been taken.
The delay in lodging a protection Visa application for the second and third named applicant can be attributed to her mistakenly believing that on their arrival to Australia in 2018 they would be automatically included on her application lodged in January 2017. She did not have the required funds to travel with her children in 2016 on her arrival to Australia.
The Tribunal has read all the material lodged by the applicants, which included another statutory declaration of the applicant.
The delegate accepted that the applicant’s movement records aligned with claimed travel to Australia and that she travelled alone without her partner on each occasion. While the applicant did not raise her travel to Australia in 2014 during any submissions to the department as part of the protection Visa application the delegate noted that departmental records indicated that her purpose of travel was to attend her sister in laws funeral.
The delegate accepted that the applicant’s prior travel to Australia in 2006 and most recent travel to Australia in 2016 were partly attributed to her experiencing relationship difficulties and to gain familial support from her brothers. The delegate also accepted that the applicant’s travel to [Country 1] without her partner in 2015 to visit her brother and that she may be experiencing relationship difficulties during this period.
The delegate found that the applicant was a compelling witness who appeared to speak genuinely during her interview in relation to the traumatic experiences she claimed to have endured during throughout her relationship.
The delegate found that there were some minor discrepancies between the applicant’s verbal testimony and written claims particularly in relation to the severity and frequency of the abuse from her partner and who she disclosed the abuse to. The delegate accepted the country information that indicated that women in Fiji are at a high risk of domestic violence at the hands of their spouse or intimate partner, and the rate of sexual and gender-based physical and sexual intimate partner violence against women in Fiji is high even when compared to other regional averages.[1]
[1] DFAT country information report Fiji 20 May 2022.
The delegate accepted that the applicant was the victim of verbal and physical abuse perpetrated by her partner throughout the relationship. The delegate also accepted that her partner had a history of substance abuse issues namely alcoholism.
The applicant had also produced a video recording dated 2016 as evidence of the applicant’s partners verbal abuse whilst under the influence of alcohol. The delegate considered that most examples the applicant raised in relation to physical abuse perpetrated by her partner were in relation to incidences that occurred 15 years ago and were therefore not recent events. The videorecording according to the delegate and witnessed the eldest son, the second named applicant physically intervening between his mother and father on occasion. The delegate concluded that applicant’s partner being [age] years of age and the children’s physical capability to defend their mother resulted in a decline in frequency and severity of instances of physical domestic violence perpetrated towards the first named applicant in recent years. The Tribunal does not accept that there is any evidence that there has been a decline in frequency and severity of instances of physical domestic violence perpetrated towards the first named applicant in recent years. This is particularly since the first named applicant and was able to flee to safety in Australia. It would be difficult for the Tribunal to reach a conclusion that a decline in frequency and severity of instances of physical domestic violence was as a result the fact that the partner was older, and the children have the physical capability to defend their mother.
The delegate also accepted that the applicant’s partner’s career in the police force in Fiji may have contributed to a reluctance to report the abuse and that complaints made to her partners former colleagues on occasion may have been met with amiable interactions. The delegate did not accept that the applicant made frequent reports to authorities regarding domestic violence claims that were never formally recorded or followed up. There can be no doubt that the first named applicant would have had difficulties reporting incidences of domestic abuse to the police force in view of the relationship that the perpetrator had with the police force because of his employment.
The delegate dealt with various incidences which had been raised in the applicant’s statutory declaration and the incident around Cyclone Winston where the applicant said that her partner appeared at her workplace under the influence of alcohol with one of her sons in the vehicle demanding she returned to the home. The first named applicant claimed that she had entered the vehicle and requested that he drive her to file a complaint against him. However, on arrival to the station he engaged in friendly conversations with his former colleagues and no statement was taken. The delegate noted that the applicant statutory declaration describes this event as 2 separate incidences however the applicant’s agent and clarified interview that this was one event.

The delegate determined that country information indicated that tropical Cyclone Winston struck the Fiji Islands on 20 February 2016. Fiji’s Ministry of health and medical services describe the category 5 cyclone as the most destructive is Fiji cyclone ever experience. The delegate concluded that this alleged incident must’ve occurred in February 2016.
The delegate considered that the applicant had provided a consistent account in relation to the incident in 2016 involving her partner driving under the influence to her workplace and embarrassing her in front of her colleagues. The delegate noted that country information indicated that Fiji has a serious drink-driving problem and that the authorities are trying to shift cultural attitudes towards dangerous driving. The delegate accepted that the incident occurred as described by the applicant and accepted claims relating to police in action on this occasion. The delegate considered this to reflect police complacency and attitudes towards drink-driving as opposed to domestic violence claims. The Tribunal does not accept the delegate’s finding. The Tribunal’s finds that the first named applicant and her sons were living in a relationship that was marred with coercive control and violence as a result of the alcoholism of the first named applicant’s partner and the father of the children.
Second named and third named applicant’s claims.
The second named and third named applicant filed their protection applications claiming that they were required to depart Fiji to escape from their alcoholic father and that they were tortured and threatened with murder along with their mother. They expressed a fear of being forced into their father’s vehicle while under the influence of alcohol and that they previously took shelter at their sister’s [Ms B]’s residence.
The second named and third named applicant submitted written statements on 12 April 2021 prior to the interviews. The second named applicant statement alleged that while he witnessed abuse perpetrated towards his mother while growing up the situation worsened after his mother arrived in Australia, as his father would chase him and his brother out of the house to look for their mother while intoxicated. He claimed that he and his brother would seek shelter at a friend’s house or at their sister’s residence. However, their father would collect them the following morning. He alleged that the behaviour continued until they sought assistance from their mother to bring them to Australia.
The third named applicant’s written statement claimed that he does not want to return to Fiji due to the harassment and violence he endured. His statement claimed that while he loves his father, he blames him for what has happened to his family and similarly claimed that he and his brother were forced to seek shelter at other people’s residences after their mother arrived in Australia due to their father’s alcoholism and violence. He also claimed that his father made them enter his car whilst driving under the influence of alcohol.
The third named applicant claimed that his father would make threats of harm towards him, his mother and brother, during his interview with the Department. He claimed his father would say that they were dependent on him due to his pension and that he pays for the house. He claimed that his father would challenge him by encouraging him to hit him however he refused to do so because he is his father. He claimed that once his mother arrived in Australia the situation worsened for him and his brother, as the father would become intoxicated and chase them out of the house. He claimed that when he began attending high school his father became more physically abusive by punching him and that from 2015, he had his brother were beaten with a PVC pipe and a hose resulting in bruises to his legs and back. The third named applicant was asked whether he witnessed his father abusing his mother and brother. He claimed that the abuse was usually aimed at them, as his older brother would rebel and be assaulted in retaliation.
The third named applicant also provided a written statement dated 12 April 2021. He claimed that his father hit his head with a wooden picket on one occasion and that following this incident he had to go to his sister’s house for medical assistance as she is a nurse.
The delegate assessed the application of the second named and third name applicants regarding family violence claims. She considered that the applicants had provided a conflicting account in relation to family violence claims perpetrated towards the two sons by their father. The delegate considered that the evidence provided by the 2 sons were conflictual and that their mother would not have left them in the care of their father if she genuinely believed they were at serious risk of harm. The delegate did not accept that the second named, and third named applicants were victims of physical violence perpetrated against them by their father.
The delegate did not accept that the second named, and third named applicants had demonstrated an acceptable reason for the delay in applying for protection.
The delegate summarised her findings on page 29 of the decision as follows:
The delegate accepted the following:
The first named applicant was in the de facto relationship with [Mr C] (senior) from 1997 until her arrival in Australia [in] November 2016. They are currently separated.
[Mr C] was legally married to his wife throughout his relationship with the first named applicant.
[Mr C] (senior) is the biological father of the second named applicant and the third named applicant and has two living adult children living in Fiji. He is a retired [Occupation 1] and suffers from substance abuse issues namely alcoholism.
The first named applicant was a victim of domestic violence throughout a relationship with [Mr C].
The second named and third named applicants where subject to verbal abuse by their father and passengers in his vehicle whilst he was under the influence of alcohol.
The delegate did not accept that:
The domestic violence that [Mr C] perpetrated against the first named applicant was as recent, frequent, or severe as claimed.
The first^t named applicant did not make frequent reports to authorities regarding domestic violence claims that were never formally recorded or followed up.
The second named and third named applicants have not demonstrated an acceptable reason for the delay in applying protection.
The first named applicant had no contact with [Mr C] between December 2006, to 2018, when she contacted him regarding their children’s travel to Australia.
Interactions on social media posts involving [Mr C] are not reflective of an amicable relationship with him.
[Mr C] was unaware that his children were intending to reside in Australia on a long-term basis after departing Fiji.
The first named applicant has not made any financial transactions to [Mr C] since her arrival to Australia.
The applicants have a present threat of harm from [Mr C] (senior).
EVIDENCE BEFORE THE TRIBUNAL
The first named applicant was born in Fiji. She is the only daughter in her family of 4 sons. She said that she has 2 siblings who would remain to live in Fiji. The eldest sibling is [age] years of age and is married to his wife who is in her [age range]. He does not work. He has serious medical issues including hypertension, diabetes et cetera. He presently lives in a one room house in the squatter’s settlement.
The other brother lives in a shack, and he is in his late [age range]. He is married with no children. He has been in and out of jail for [specified offences]. He has a drinking problem and has had an operation being bypass surgery. Because of their living conditions her brothers are unable to assist in providing her with accommodation.
Her 2 brothers who reside in Fiji could not accommodate her. She does not have any savings. She does not have the support of family. She fears that if she relocated to another part of Fiji the abuser would still find her. The Tribunal has considered whether this family can relocate to another part of Fiji, and this cannot take place.
She said that she presently lives in [Suburb 1] in accommodation whereby she lives with a seriously disabled person who she looks after with the help of her niece. The second named applicant also shares the accommodation. There is no other room to accommodate her other son [the third named applicant] who lives in [City 1]. The third named applicant is [age] years of age.
The second named applicant stated that he has recently married. He said that his wife has had surgery for [cancer]. She has 2 children from a previous relationship. She lives with her aunt and uncle The first named applicant stated that she used to work in [Town 1] for 4 years and her children lived with her there.
The first named applicant said that she is responsible for the entire family financially. She said that she provides for her niece to assist her to look after the disabled man and the niece gets paid for 3 hours in a day. She works at [employer] as well as looking after the person that they live with.
All the applicants mentioned that [Mr C] became abusive when he drank. He apparently drinks wine every day. He can consume 1 to 2 bottles. He was previously drinking large bottles of beer and smoking. He was hospitalised due to his alcoholism, and he changed to drinking wine. He retired from [Occupation 1] at the age of [age] years. He is possibly [age] years of age now.
The family lived in rented accommodation. The accommodation had 2 bedrooms. He bought a house in his name when he retired 20 years ago. However, they did not move to the house as it required extensive renovations. The first named applicant said that when his mother left Fiji to come to Australia she left very suddenly. She did not tell him his brother or his father that she planned to leave.
She said that when the children were little she worked, and she had hired her cousin to remain in the house look after the children when they were young. Her cousin would also look after the children when she went away to visit her family overseas. She said that there were times that she had no option but to sleep in her car. On one occasion she slept in her car for 2 weeks. The first named applicant left Fiji to travel to Australia and she did not tell anyone, and the sons were waiting for a call from her. The telephone call never came but she did advise a member of her family to tell the sons.
The second named applicant said after she left, there were numerous altercations and on occasions his father would have a knife and he would chase them with it.
The family’s financial position in Australia has been very difficult. The first named applicant is solely responsible for all the financial matters because the two sons do not have working rights on their bridging Visa.. She earns 2500 dollars. She said that her brother is a pensioner and cannot afford to look after his daughter. It is for this reason that his daughter helps her at the home she presently works in.
Both sons are not employed and have not been employed since living in Australia. They have been [volunteers] in [Town 1]. Apart from volunteering they have not been able to work. This is causing financial stress. The applicant said that she could not afford to buy a car because she could not borrow money. She therefore borrowed money in her niece’s name who is a permanent resident of Australia.
Her [son], the third named applicant reiterated that he did feel frightened for his safety whilst living in Fiji as he recalls that his father had hit him over the head with a picket fence that had a nail in it. He felt that he was lucky to survive that assault. He had to be taken to his sister’s house who is a nurse for her to look after him.
The present circumstances of this family were and are difficult in Australia. The 2 sons became visibly upset when discussing matters relating to the violence.
The Tribunal accepts that the first named applicant suffered from actual and threatened physical violence for the duration of the relationship with her former partner. The Tribunal accepts that this occurred from the time she was pregnant with the eldest child. The Tribunal accepts that due to long standing domestic and family violence perpetrated by her partner and the father of the children towards the first named applicant in front of her children and to the children that the applicants felt that their lives were in danger whilst living in Fiji. The Tribunal accepts that there were several factors that increased the victims risk including the mis- use of alcohol and the fact that the children were exposed to violence at a young age.
In the National Domestic and Family Violence Bench book physical violence and harm is defined as follows:” Actual or threatened physical violence or harm is among the range of behaviours that characterise domestic and family violence. It is most likely to be experienced by women and perpetrated by their current or former intimate male partner. The Australian bureau of statistics reported that in 2019 domestic and family violence related homicides and assaults accounted for over 1/3 of the total numbers; and that woman accounted for almost 2/3 of homicide victims and were between twice and 5 times as likely to be victims of assault as males. The most common form of physical violence is of physical harm; however, these are often accompanied by actual physical violence. The levels of violence experienced from a former partner are statistically much higher than that from a current partner and are more likely to injure and invoke in the victim a feeling that their life is in danger. It is also the most likely form of violence to be reported by victims.
The perpetrator may intend to intimidate any fear in the victim through physical violence or harm yet cause minor visible signs of injury on the victim’s body. Victims may be kicked, slapped, bitten, or punched with a fist. There may be pushed, grabbed, or have their arm twisted or hair pulled. They may be hit with an object or having objects thrown at them. They may be burnt or scalded or threatened with a gun knife or other weapon. The perpetrator may strangle or suffocate them. The perpetrator may drive dangerously when the victim or children are passengers in the car, or smoke in the home knowing that the victim has a respiratory condition or lock the victim outside the house during the night.
The perpetrator may also commit physical violence or harm in ways that are intended to cause obvious or serious physical injury or death. Several factors may increase victims’ risk where:
the perpetrator displays generally higher levels of aggression, and patterns of controlling an emotionally abusive behaviour (sometimes identified as coercive control) towards the victim.
the perpetrator mis-uses alcohol or drugs
there are multiple episodes of physical violence or harm experienced by the victim or family members.
the victim’s children are exposed to physical violence or harm.
the perpetrator strangles the victim.
the victim fears their life is endangered.
the victim is aged between 18 and 24 years.
Domestic and family violence may affect the victim’s physical health and functioning in acute and chronic ways, even when the violence has stopped. Apart from direct physical injuries, including traumatic brain injury, victims may experience a range of chronic health conditions for example, muscular and joint pain, headache, stomach cramping, vaginal bleeding, pain during sexual intercourse, heart failure, asthma, poor hearing, allergies, malnutrition, hair loss and fatigue. These symptoms may also be mediated through a victims experience of high levels of stress, reduced healthy behaviours and limited agency in making healthy lifestyle choices. In addition, domestic and family violence may disrupt a victim’s cognitive faculties for processing and coping with trauma resulting in a sense of personal failure and loss of control over their life situation which may, over time, contribute to mental ill-health.
Physical violence and harm may be one aspect of a complex pattern of behaviours engaged in by perpetrators to control another person, sometimes referred to as coercive control.[2]
[2] National Domestic and Family Violence Bench Book 2023
The first named applicant explained to the Tribunal that she does still suffer the effects of the violence even though she is safe in Australia. The Tribunal accepts that her 2 sons are dependent upon her as they have never been gainfully employed since they left school.
The applicants described the behaviour of her perpetrator to the Tribunal and the Tribunal accepts and finds that the first named applicant was subjected to domestic violence whilst she lived in Fiji perpetrated by her partner (the father of her children).and the delegate failed to consider that the daily emotional or psychological abuse had a debilitating effect on the first named applicant’s ability to cope with her situation. She had to leave the home to escape the violence on numerous occasions. She had to sleep in the car or outside the home.
In concluding that the applicants have a well – founded fear of persecution if they are returned to live in Fiji the Tribunal has taken into consideration that:
The abuse and violence occurred over a long period of time.
The first named applicant continued to endure and lived with violence for the sake of the family and hoped that he would change.
The applicants felt that they had no choice but to flee the situation as the many attempts to separate or to leave whilst continuing to reside in Fiji did not work.
The fear that she would not be able to obtain state protection because of the partner’s occupation needs to be taken into consideration as she cannot rely on state protection.
The Act provides that a person is a refugee if they are outside the country of their nationality and owing to a well- founded fear of persecution, they are unable or unwilling to avail themselves of the protection of that country. The Tribunal must consider whether the primary applicant has a well- founded fear of persecution for one of the reasons set out in the legislation.
In respect of this matter the Tribunal accepts that the first named applicant identifies as a member of a social group of single women in Fiji as she shares characteristics of this group in that her gender is the same. Although the characteristic is not a fear of persecution those shared characteristics are innate. The High Court found that:
To determine that a particular social group exists, the putative group must be shown to have the following features. First, there must be some characteristic other than persecution or the fear of persecution that unites the collection of individuals; persecution or fear of it cannot be a defining feature of the group. Second the characteristic must set the group apart, as a social group, from the rest of the community. Third, there must be recognition within society that the collection of individuals is a group that is set apart from the rest of the community.”[3]
[3] Applicant S v Minister for Immigration and Multicultural affairs (2004) 217 CLR 387
During the relationship between the first named applicant and [Mr C] it was one filled with significant, prolonged, and serious domestic violence. The Tribunal accepts and finds that [Mr C] was the perpetrator of that violence and that all the applicants were exposed to and experienced domestic violence.
The evidence before the Tribunal shows that the domestic violence was not solely directed at the first named applicant as he also caused injury to the third named applicant and exposed his children to a life marred with domestic violence.
The Tribunal places weight on the country information which states as follows:
Fiji is traditionally male- dominated society and traditional gender roles are well entrenched. according to the World Bank figures, the participation rate for women is the lowest in the Pacific region at 35 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.
A study by the Fiji’s 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.[4]
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.
[4] DFAT country information 20 May 2022

The Tribunal finds that the first named applicant has no tertiary education and no qualifications. She may face economic hardship if she is returned to Fiji. She will be required to retire at the age of 60 years. She will have no accommodation in Fiji.
The Tribunal accepts that the applicant’s sons are brothers and that they are financially dependent on their mother.
The Tribunal finds that the applicants gave their evidence is a frank and straightforward manner and the Tribunal accepts their evidence. Even though the second named applicant and the third named applicant have their own Protection Application the Tribunal finds that they are members of the family unit of the first named applicant and therefore their application depends on the outcome of the first named applicant’s case.
The Tribunal finds that as a foreseeable consequence of the applicants’ removal from Australia would be to place them at risk of severe domestic violence. The fact that the perpetrator of the violence was a well-respected member of [government agency] as he was employed as a [Occupation 1], adds to their stress that they would be unable to receive state protection.
Overall, the Tribunal is satisfied with the applicants’ account and presentation of their evidence was credible, and the Tribunal accepts the reasons outlined in their claims.
CONCLUDING PARAGRAPHS

100. For the reasons given above the Tribunal is satisfied that the first named applicant is a person in respect of whom Australia has protection obligations. Therefore, the first named applicant satisfies the criterion set out in s 36(2)(a).
101. The Tribunal is satisfied that the second and third named applicant are the sons of the first named applicant and are members of the same family unit for the purposes of s36(2)(b)(i).
DECISION
102. The Tribunal remits the matter for reconsideration with the following directions:
(1) The first named applicant satisfies s36(2)(a).
(2) that the second and third named applicant satisfies s36 (2)(b)(1) of the Migration Act , on the basis of membership of the same family unit as the first named applicant.
Noelle Hossen
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 3534

30 July 2024

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