2111877 (Refugee)

2111877 (Refugee) [2024] AATA 2649 (8 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2111877
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Rosa Gagliardi
DATE:8 March 2024
PLACE OF DECISION:  Australian Capital Territory
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 08 March 2024 at 11:00am
CATCHWORDS
REFUGEE – protection visa – Fiji – particular social group – gay man in religious Fijian society – physical violence – harassment and bullying – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), 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 ALD 347
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 31 August 2021 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Fiji (a matter the Tribunal accepts based on the evidence) applied for the visa on 29 March 2020.
The delegate refused to grant the visa on the basis that the decision-maker in the first instance was not satisfied that the applicant was a refugee as defined by s.5H of the Act and was therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations as outlined in s.36(2)(a) of that Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Fiji there is a real risk he will suffer significant harm as defined in s.36(2)(aa) of the Act.
applicant appeared before the Tribunal on 26 February 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sister-in-law, [Ms A].
The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.
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
The issue in this case is whether the applicant has a well-founded fear of persecution for reasons set out in s.5J(1) of the Act, and there is a real chance that if the applicant was returned to Fiji now or in the reasonably foreseeable future, he would be persecuted for one of those reasons and/or whether he would suffer serious harm.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Claims at the time of application
The applicant was asked in his application to provide reasons why he left his home country, Fiji. He wrote (as written):
I left Fiji to come and visit my family here at Canberra; I am currently on tourist visa. Some of the reasons I left Fiji was due to inequality of work task duties due to my gender discrimination of been bisexual (gay), cost of living expenses such as rent, food and travelling expenses which does not meet my income salary which I earned, also I am the sole-bread winner of my family back in Fiji with my divorced mum (domestic duty) four younger brothers. Also my step-brother threatened and harms me back in Fiji which he beat and punched me up due to our family disputes inequality among them. Also our gender of been bisexual is not accepted and tolerated by our religion too as this is a huge offend to our values and tradition in my family. And also I had sent my immediate resignation to my current employer for better standard of living here in Australia.
The applicant set out that the harm he faced in Fiji was that he had been punched and beaten by his stepbrother and that his “parents have nothing to say to this as my elder stepbrother has every right to scold me according to my parents because he is the eldest. He does not like me and wants me to leave from home and be with the people of my kind (gay, LGBT)”.
The applicant wrote that he had reported the harm to the authorities (police) in Fiji but was told to settle their family disputes consistent with their traditional culture and values by providing a kava ceremony for the applicant to seek an apology for the harm he had experienced. Despite this the applicant claims his stepbrother continued to harass him and beat him out of the family home.
The applicant stated in his application that he had tried to move from his home area:
After that happened I moved from [City 1] to [Town 1] and then to [City 2] in Fiji to seek protection and welfare of myself and my family too. And decided to move away from Fiji to Australia for more safeguard and protection of my welfare.
The applicant was also asked to explain what he thought would happen to him if he returned to Fiji and he responded:
When I return back to Fiji I will get more harm from my stepbrother which cause danger to my life and welfare. Also of been bisexual it wont be tolerated and accepted which I can be taken into task of it. When I return my current employer will take actions against me since I just sent my immediate resignation with good faith and conduct of an employee all within the time frame.
Asked why the authorities would not protect the applicant on return to Fiji, he answered, “In Fiji, LGBT community have no say and they are treated as low life people. The government and the nation as a whole is against it”. He advanced that he could not relocate because “In Fiji, everywhere I go, I wont receive any freedom or any protection as LGBT community have minimal say and bullied and harassed sexually and physically and mentally”.
In its decision on 31 August 2021, the Department:
· did not accept that the applicant is gay as claimed, and consequently,
· did not accept that the applicant experienced physical assault from his stepbrother (or anyone else) or faced difficulties from his employer or the general public for reasons of his sexuality.
The Tribunal hearing
The Tribunal asked the applicant to explain how he identified, and he responded that he identified as a gay male. He stated that he was an indigenous Fijian. Growing up at school the applicant stated that he had mostly female friends and gay friends. The school tolerated gay students, but their classmates bullied and made fun of them. There were three of them who were gay in that school. The applicant stated that his teachers did give him words of encouragement. The Tribunal asked whether he found that in society generally people were accepting and encouraging of his sexuality. The applicant responded it was not easily accepted in the community as he endured abuse and was sworn at, and his stepbrother, [Mr B], was physically violent towards him.
The Tribunal asked the applicant to set out when he might have first had a realisation that he was not attracted to females and might be gay. The applicant stated it was at a very young age; growing up as a child his sisters would dress him in female clothes. The Tribunal noted, however, that the applicant would not have had an awareness as a very young child that he was gay. He stated that he realised when he was in primary school. Growing up he only had female friends and he would have been 8 or 9 when he realised he was different.
The Tribunal asked the applicant why he had told the Department that he was in fact bisexual. The applicant responded that he had also written that he was gay, and the Tribunal explained how being bisexual and being gay were different. The applicant stated that he wrote he was bisexual because he was attracted to males but was mostly friendly with females. The applicant confirmed that in using the term “bisexual” he had used the wrong terminology to describe how he experienced the world.
The applicant was asked whether he had had intimacy with a male after his realisation that he was gay. The applicant stated he had. He started he was 18 years of age. The Tribunal asked the applicant to provide further detail about his first partner. He stated that while his previous partner was living in Fiji, they no longer had any connection as he was now married. They met in town. They caught the same bus, and he sometimes went to his home. The applicant stated they had sex quite a few times. He stated his partner was the same age as he was. The Tribunal asked whether his former partner’s parents were in the house when they were there together. The applicant stated that his partner’s mother was a single mother who worked on another island and was frequently away.
The Tribunal asked the applicant whether he had told anyone about this relationship. He stated he had told his friend who he had listed as a witness for the hearing. The Tribunal asked whether he saw this connection as a relationship and the applicant responded he would say it was a casual relationship; they were not open about it. Asked if they had feelings for one another the applicant stated yes, they enjoyed each other’s company very much. The Tribunal asked what activities they might have enjoyed together. He stated that sometimes they went for a swim together. The relationship ended because his former partner moved to another town, and they were unable to meet any more. The Tribunal asked whether after his relationship he had any doubts about his sexuality, and the applicant stated it confirmed to him that he was gay.
Queried what other relationships he might have had after his initial encounter, the applicant stated that he did not have a relationship as such but that he had a few sexual partners. The Tribunal asked where he might have met his partners and he responded when he went to town or to nightclubs. The Tribunal asked whether there were any specific night clubs for gay people in Fiji. The applicant replied no but there were house parties which he attended.
The Tribunal asked whether the applicant had concerns about his sexual health, and he responded that he was conscious of it but was careful to use protection.
The Tribunal asked when his family found out that he was identifying and living his life as a gay man. He stated their family knew this from an early age as he used to get a telling off for the way he was. The applicant stated that after 18 years of age, however, it was mainly his stepbrother, [Mr B], who used to be violent toward him and he chased him away from the family home because he was gay. He used to get a lot of threats from his stepbrother who told him not to behave like a female - that he should be a man and ought to toughen up. His stepbrother manhandled him and shook him by the collar.
The applicant stated that threats also came from his dad’s relatives who told him off for acting like a female. They told him that he should not be acting in such a way because they were devout churchgoers and they threatened to marginalise him and kick him out of his home.
The applicant stated that when he left school, he started working at a holiday resort. He copped a lot of verbal abuse and threats of physical violence at the resort, mainly because he was dressed like a female when he went to work. Other male workers who worked in other departments were responsible for the threats and verbal abuse. The applicant was humiliated because of his appearance. He was at the resort for 12 months and then he left because he could no longer cope with the abuse he experienced.
The Tribunal asked prior to leaving Fiji, whether the applicant had formed a strong bond with anyone. The applicant stated he had not developed strong bonds with any man, just casual relationships here and there. The Tribunal asked how it was that his stepbrother came to find out that he had had sexual relations with other males. The applicant responded that he would see him going to clubs, staying out and the fact he would return with love bites.
The applicant stated that a lot of the time he was bullied by family members and others into having a relationship with females, but he dismissed that pressure. He asserted he had never had a sexual relationship with a female.
The Tribunal asked the applicant to set out exactly what [Mr B] did to him, and where he was precisely when such incidents of abuse and violence occurred. The applicant stated that [Mr B] was abusive at home swearing and punching him. He usually would go to friends’ homes to seek reprieve from the violence. He had fled to [City 1], [Town 1] and [City 2] because he was afraid of going back home where he would suffer physical violence. When he was assaulted, he never sought medical attention or attended hospital. He reported it to the police on one occasion, but they attempted cultural reconciliation and no were charges laid.
The applicant stated that he could not count how many times [Mr B] had been violent to him. His stepbrother strongly wanted to condition the applicant to be like his brothers – to marry “and be a male”.
The Tribunal asked whether the applicant thought the authorities had withheld meaningful assistance because of his sexuality. He stated he did come across this as they suggested reconciliation with his stepbrother, but his stepbrother continued his abuse with impunity. The applicant would just run away to friends’ houses because the police would not do anything.
Asked if [Mr B] had an intention to kill the applicant, he answered yes, because that had come out of his mouth when [Mr B] was assaulting him; he verbalised that he was going to kill the applicant.
The Tribunal asked the applicant whether on return to Fiji he thought he would be able to hide his sexuality. He stated that he had no intention of hiding the fact he was gay, and he intended to be open about it. The applicant stated that in Australia he had many gay friends and attended functions with them and did not receive any harassment here.
The Tribunal asked the applicant to discuss his life as a gay man in Australia. The Tribunal asked whether the applicant had evidence that he had attended Mardi Gras in Australia, for example. The applicant stated he had attended Mardi Gras and had uploaded a lot of photos on TikTok showing his attendance with his friends.
The applicant clarified that at the moment he was in a relationship with a man he met in September last year. The applicant stated that he worked on a fly-in fly-out basis, and expressed regret he did not see his partner frequently as the applicant worked in a [place] in [Town 2].
The Tribunal asked the applicant whether on returning to Fiji there was a real chance he would face persecution and the applicant stated he would definitely face harassment; he could be injured, or worse, killed. The Tribunal asked whether with regime change in Fiji now, given Bainimarama was out of government, could it be that there is more tolerance towards diverse people in Fiji. The applicant stated that the change in government did not make a difference at all. The problem was the mentality of the Fijian people. It had been drummed into them that being gay is a sin. This view of homosexuality was preached in Church so he would not find peace in Fiji.
The Tribunal asked the applicant what he thought of the Department’s findings that he was not in fact a gay man. The applicant stated that he thought it was obvious he was gay. He did not know how they could think that. He was attracted to males.
[Ms A], the applicant’s sister-in-law then gave evidence. The Tribunal noted that essentially the Department did not accept that the applicant was gay. [Ms A] seemed genuinely taken aback by the Tribunal’s statement. She said that was interesting to her as she had known the applicant since she married the applicant’s brother, and it was apparent to her from the beginning that the applicant was gay - since she had first met him when he was 12 years old. [Ms A] was aware that the applicant had experienced difficulties in Fiji and had provided continuing support to the applicant. [Ms A] stated that she knew the applicant had undergone physical and psychological abuse in Fiji because he was gay. She stated that it had always been the case that he was gay.
[Ms A] stated that she had always encouraged the applicant to be who he was, even though in Fijian culture he was not tolerated or supported. Here in Australia and Fiji he did not come across other than who he is. She had told him he should not change who he is. [Ms A] also stated that the applicant confided in her about the people he dated, and they discussed his relationships. She stated that the applicant did not hide his experiences from her and that is why it was confusing that the Department would not accept the applicant was gay. [Ms A] added that indeed, the applicant presented as gay to all her friends and family. She stated that it was his openness about his sexuality that had caused him great difficulty in life in Fiji.

[Ms A] conceded that she personally had not witnessed the physical violence the applicant had been subjected to, but she knew when she visited the village that the applicant was repeatedly humiliated and abused and not just by one member of his family. It was others in the community also. She would try to advocate for the applicant’s safety and often intervened to protect him. [Ms A] stated that while she had not witnessed the applicant being assaulted, she had seen the impact on the applicant as she had been on the phone to him, and he was distressed and distraught as he recounted his circumstances to her.

[Ms A] confirmed that the applicant had reported the assaults to the police without results. It was Fijian culture she was struggling against. They had certain beliefs and ways of being in terms of what they considered acceptable. It had been intimidating to stick her neck out coming from an Australian culture, but being an outsider, she could assert some authority.
[Ms A] stated that the applicant was an active and visible member of the gay community in Australia.
Evidence submitted
At the time of review the applicant submitted the following:
·   Fiji Police report dated [in] February 2024, confirming the applicant had lodged a complaint at the [specified] Police station in 2017 because he was verbally abused and physically assaulted by his elder stepbrother, [Mr B], for his sexuality as a member of the LGBTIQ community in Fiji. The report states that the matter was settled in the Fijian traditional manner and that the alleged incident occurred because of discrimination towards the applicant’s sexual orientation as an LGBTIQ person.
·   Support letter from [a named individual], Pacific Transgender Equality Movement, confirming the applicant had been a member of the LGBTIQ community in Fiji and had experienced a lot through his family and the community at large. The writer states that the LGBTIQ community had traversed difficult times with death threats and that recently a transgender member of the community had passed away due to a hate crime.
·   Letter from [Mr C], Fiji, friend of the applicant stating that throughout their association he had witnessed the applicant being severely abused by his stepbrother. The writer stated that declaring matters to law enforcement ended in failure, especially as the applicant is gay.
·
General support letter from [Ms D], Fijian Community Association Victoria, dated

[in] February 2024 referring to the applicant’s characteristics as a contributor to the community.
·   Photos of the applicant attending a Mardi Gras parade in Sydney with friends and other related photos.
Country information concerning treatment of members of the gay community in Fiji
The 2022 Fiji Human Rights Report states:
Acts of Violence, Criminalization, and Other Abuses Based on Sexual Orientation, Gender Identity or Expression, or Sex Characteristics
Criminalization: No laws criminalize consensual same-sex sexual conduct between adults.
Violence against LGBTQI+ Persons: NGOs reported violence against members of the lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQI+) community was common, and that strong and widespread social stigma contributed to a lack of trust in police and discouraged victims from reporting crimes to authorities due to fear of further violence or harassment. Reports indicated transgender women continued to face extremely high rates of sexual and gender based violence, including routine harassment and targeting by police.
Discrimination: The constitution prohibits discrimination on the grounds of sexual orientation, gender, and gender identity and expression. The law prohibits discrimination in employment based on sexual orientation. Nevertheless, NGOs reported complaints of discrimination against LGBTQI+ persons in employment, housing, access to health care, and other fields. Research by the NGO Diverse Voices and Action for Equality (DIVA) found that a majority of lesbian and bisexual women, and of transgender persons, lived in poverty due to unemployment. According to DIVA, approximately 62 percent of this group were unemployed or involved in precarious casual work.
Availability of Legal Gender Recognition: Legal gender recognition was not available. The lack of identification that aligned with their gender expression created significant problems for some persons in employment, education, housing, and other aspects of daily life.
Involuntary or Coercive Medical or Psychological Practices Specifically Targeting LGBTQI+ Individuals: There were no known reports of involuntary or coercive medical or psychological practices on LGBTQI+ persons. Although the country does not have a law banning so-called conversion therapy, health-care professionals are prohibited from attempting to change a person’s sexual orientation. There were no known cases of enforcement action.
Restrictions of Freedom of Expression, Association, or Peaceful Assembly: There were no known reports of restrictions on those speaking out concerning LGBTQI+ topics, although cyber bullying and hate speech against transgender individuals increased.[1]
[1] 2022 Country Reports on Human Rights Practices: Fiji, Bureau of Democracy, Human Rights, and Labor, U.S Department of State,
The Department of Foreign Affairs and Trade (DFAT) report for Fiji states:
Sexual orientation and gender identity
3.58 Fiji is one of the few countries to have constitutional protections against LGBTI discrimination. Gay sex was decriminalised in 2010. Same-sex marriage is not legal in Fiji, however same-sex couples can and do live in Fiji.
3.59 There are a few LGBTI NGOs operating in Suva that may cover issues regionally for other Pacific countries. DFAT understands that they are relatively effective in raising awareness of LGBTI issues and dealing with authorities. However, in-country sources told DFAT that this needs to be understood in the context of overall low visibility of LGBTI people and LGBTI issues; LGBTI issues are rarely spoken of and raising awareness is a difficult task. There are few research studies of LGBTI issues in Fiji and it is difficult to observe or analyse patterns of discrimination and violence against LGBTI people.
3.60 Gay men and lesbians often do not come out to their families and are often not accepted when they do. This can cause significant problems because of the traditional role that families take in welfare during times of sickness or unemployment. LGBTI people may find more acceptance in Suva, particularly in wealthier circles. According to sources, societal belief in the efficacy of ‘corrective rape’ of lesbians remains prevalent in the indigenous Fijian community, although DFAT has no way of assessing or verifying the prevalence of such practices.
3.61 Twenty-one-year-old gay man, Iosefo Qionitoga Magnus was murdered in 2017 with no arrests made. A transgender woman, 23-year-old Akuila Salavuki, was found dead in a pool of blood in May 2018. Her accused murderer was acquitted. In-country sources told DFAT that when anti-LGBTI violence occurs it is more likely to be targeted than random, but that anti-LGBTI violence may be underreported which obscures any understanding of the prevalence of anti-LGBTI violence. Media articles about violence may not disclose that the violence was an anti-gay hate crime, for example.
3.62 In-country sources told DFAT that LGBTI individuals can experience societal discrimination when accessing goods and services. LGBTI issues are not discussed generally in Fijian society, and little data other than anecdotal reports exists to demonstrate that discrimination.
3.63 The tourism industry provides employment opportunities for LGBTI people, according to in-country sources. The tourism industry is highly international by its nature and is more inclusive of LGBTI people. It also provides an opportunity for people to work away from their families, who may have rejected them.
3.64 Transgender people report high levels of discrimination and abuse. Police promised to review claims of abuse directed towards transgender people on the Transgender Day of Remembrance (an international day to remember victims of anti-transgender violence) in 2018. Some transgender women are seen and may even be accepted as ‘entertainers’ but may find it difficult to find mainstream employment.
3.65 Overall, DFAT assesses that LGBTI Fijians are at a moderate risk of official and societal discrimination and a moderate risk of violence. Because of homophobia and transphobia, many LGBTI people may hide their identity. Taboos against reporting violence against LGBTI people also exist, which may make patterns difficult to identify.[2]
[2] Australian Government Department of Foreign Affairs and Trade, DFAT Country Information Report Fiji, 20 May 2022, country-information-report-fiji.pdf (dfat.gov.au).
In terms of police attitudes towards gender and sexuality, the following sets out the cultural impediments towards acceptance of the LGBTIQ community:
Much has been written on the contemporary legacies of this scenario in Fiji and the implications this has for the operations of state agencies of security and enforcement. But, beyond the important work done by local gender advocates, very little attention has been focussed on the various way that this fusing of state and indigenous authority structures shapes the policing of gender and sexuality in Fiji in the contemporary context…My contention is that even when policy reforms advocating a more liberal policing of gender, or race, have been adopted, the particular configuration of regulatory authority that operates in Fiji tends to result in everyday police practice which punishes expressions of gender or sexuality that do not adhere to heterosexual conjugal norms. However, this defence of what I term ‘conjugal order’ is undertaken by police, not simply because to do otherwise is understood by Fiji Police Force officers as a violation of cultural or religious values or protocols that lie at the heart of expressions of indigenous identity, but also because it is understood to pose a threat to widely and deeply held notions of community order and security.[3]
[3] ‘Hybridity and Regulatory Authority in Fiji: Vernacular Perspectives on Gender and Security’, Chapter 15, Hybridity on the Ground in Peacebuilding and Development: Critical Conversations, Nicole George, 2018, 15 Hybridity and Regulatory Authority in Fiji: Vernacular Perspectives on Gender and Security Vernacular Perspectives on Gender and Security from Hybridity on the Ground in Peacebuilding and Development: Critical Conversations on JSTOR. This chapter is an effort to uncover the gender-restrictive consequences that accrue when policing is shaped by intertwined sources of customary, religious and state security agency authority in Fiji.
The applicant referred at hearing to the strength of the Christian tradition in shaping attitudes towards members of the LGBTIQ community.
It is also reported that members of the LGBTIQ are often discouraged from reporting crimes to the authorities for fear of further violence or harassment [4].
[4] ‘Country Reports on Human Rights Practices for 2022 – Fiji’, US Department of State, 20 March 2023. Fiji - United States Department of State.
There have been reported discrimination towards the LGBTIQ community in respect of climate change also, particularly in times of natural disasters which reflects the societal discrimination experienced generally:
The climate justice conversation lacks sufficient representation and voices from marginalized groups, such as people living with disabilities; lesbian, gay, bisexual, transgender, intersex and queer (LGBTIQ+) people; and migrants and refugees. An intersectional approach to the impacts of environmental and climate crises is imperative to highlight how different marginalized groups define, relate, and respond to their realities. Underrepresentation and underreporting of those groups poses an issue for purposive, inclusive, and intersectional public policy. Hence, disaster preparedness and harm reduction, especially for marginalized communities, are fundamental areas which require investment.
When climate change intersects with the experiences of LGBTIQ+ people, it is crucial that information and data gaps are addressed through careful analysis of how they are disproportionately affected. LGBTIQ+ people tend to be uninformed on important disaster management and respective adaptive measures in place due to their lack of involvement in these processes, which puts them at higher risk, making them more vulnerable. This lack of involvement, in turn, is a result of their exclusion on the basis of their sexual orientation and gender identity. Moreover, LGBTIQ+ people, particularly trans people and youth, also experience a great deal of displacement from their original families and households. Those experiencing homelessness often find it difficult to gain access to shelters and welfare resources and tend to face difficulty and discrimination when trying to access emergency facilities during climate disasters. LGBTIQ+ people are often left out and behind when seeking access to information on climate events and safety and to disaster relief assistance from government services.
The Pacific region continues to record increases in average temperatures, rising sea levels, and greater intensity of natural disasters. The Fijian LGBTIQ+ community has seen and experienced the repercussions of both societal exclusion and climate change, which have displaced and disrupted the lives of many. In Fiji, the Rainbow Pride Foundation (RPF) advocates for the rights of LGBTIQ+ people, ensuring they can live with dignity. RPF has hubs spread across various areas and islands in Fiji. These hubs represent LGBTIQ+ people of different identities and backgrounds, including people with disabilities, people of Indian and Indigenous descent, sex workers, and the elderly.
In early April of 2020, Tropical Cyclone Harold hit, causing damage to a number of islands, alongside the onset of the COVID-19 pandemic. Some LGBTIQ+ communities associated with RPF were significantly impacted by Cyclone Harold, with hub members experiencing damage to their houses and crops due to violent winds and heavy rainfall that made them lose sources of income and food. Others experienced significant flooding and power outages. LGBTIQ+ members living with disabilities found it difficult to access news and awareness resources on Tropical Cyclone Harold or COVID in sign language. Those with physical disabilities found it difficult to be transported or gain access to shelters or evacuation centres. Safety within these centres was also a concern, and many LGBTIQ+ members living with disabilities were unsure of how to access state relief. On top of all these difficulties, they also feared discrimination. With most LGBTIQ+ members working in the tourism sector, there was an increase in unemployment within the community. These members were granted access to their pension funds to assist them.[5]

[5]
FINDINGS AND REASONS
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, 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 him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (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.)
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need for and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.
On the other hand, 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 (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
The applicant claims to be a member of a particular social group - gay man in religious Fijian society.
In making its assessment the Tribunal has had regard to the AAT Guidelines on Gender and the Guidelines on the Assessment of Credibility which also caution against focussing on perfect recall as memories of trauma may give rise to recall of feelings and responses, but not necessarily of timelines. Assessing matters of sexuality are particularly difficult for a decision-maker and given the Department did not have the supportive evidence the Tribunal has before it currently, was unable to be convinced that the applicant was indeed gay.
In the case of the applicant, the Tribunal is satisfied that the applicant is gay as the applicant spoke spontaneously about his experiences in Fiji and these have been corroborated in a compelling manner by his Australian sister-in-law, [Ms A], who also gave credible evidence about the applicant’s difficulties in Fiji as a gay man. The Tribunal was particularly convinced by [Ms A]’s evidence about how she had known the applicant since he was 12 years of age when she first met her now husband in Fiji – a country she continued to visit over the years, exposing her to the applicant’s trials as a gay man and his confidences about his relationships.
The Tribunal was also struck by [Ms A]’s straight forward evidence that those who belonged to the applicant’s family and social circle knew he was gay as the applicant never made an attempt to conceal who he was, and that he had never been known as anything other than gay.
The Tribunal understands that the Department was confused that the applicant stated he was bisexual and gay in his application, nonetheless, it would be unreasonable to impose on the applicant a strict knowledge of nomenclature used in various communities of LGBTIQ persons around the world, particularly in more urban and liberal settings. The applicant gave an explanation at hearing that he had used the term “bisexual” to indicate that he was friends with females but was attracted to males and indicated that he had used the term bisexual incorrectly. The Tribunal accepts the applicant’s explanation and finds that the applicant identifies as a gay male.
The applicant stated that his stepbrother and other members of the extended family were motivated to be violent towards him because they would not accept his mode of dress and mannerisms which were more female in nature, and that he was bullied to behave like a man. The Migration Act states that a person would not have a well-founded fear of persecution (s.5J) if a person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution. This is not the case, however, where a modification would, among other things: conflict with a characteristic that is fundamental to the person’s identity or conscience; conceal an innate or immutable characteristic of the person; and alter his or her true sexual orientation, or gender identity or intersex status.

Essentially, the applicant’s family members and society expected the applicant to change who he fundamentally is as a person.
The Tribunal is persuaded that the applicant in Fiji not only would not conceal his way of being but cannot conceal who he fundamentally is. The Tribunal notes that the applicant chose to go into the tourism industry in Fiji which is to some degree internationalised and therefore the applicant was able to work in a context where external influences and views regarding being gay could exist, even though the Tribunal found the applicant’s evidence that the males of the resort where he worked did harass him and bully him credible. Outside of this international environment, however, the Tribunal is not certain that the applicant would be able to make a living to sustain himself as the country information shows that LGBTIQ people do experience discrimination in employment and in other areas, including accessing healthcare and housing while the tourism industry provides employment opportunities for some LGBTIQ people.[6]
[6] ‘Freedom in the World 2023 – Fiji’, Freedom House, 31 August 2023, Fiji: Freedom in the World 2023 Country Report | Freedom House and Australian Government Department of Foreign Affairs and Trade, DFAT Country Information Report Fiji, 20 May 2022, country-information-report-fiji.pdf (dfat.gov.au).
The Tribunal accepts the applicant was a part of the LGBTIQ community in Fiji given the strong letters of support provided to him and which the Tribunal has no reason to doubt are authentic. Furthermore, the applicant spontaneously referred to Tik Tok photographs he had of his participation in the Gay Mardi Gras in Sydney, and provided photographic material to support his claims that he was genuinely a member of the gay community in Australia. The Tribunal accepts that the photographic material submitted is a genuine reflection of the applicant’s essence as a gay man and places significant weight on these.
Having established that the applicant is indeed a gay man from a religious community in Fiji, and given his credibility in this regard, the Tribunal accepts that the applicant was brutally beaten by his stepbrother and taunted by others in his family about his sexuality. The Tribunal now turns to whether there is a real chance of the applicant facing serious harm were he to return to Fiji, now or in the reasonably foreseeable future.
The scholarly work referred to above in this decision by Nicole George, indicates that Fijian society is beholden to its history of customary and religious laws and that this directly impacts on how homosexuality and the LGBTIQ community is viewed generally in that country. The Tribunal notes that the DFAT report referred to above states that there is a deficit of information regarding how the LGBTIQ community are treated in Fiji, which in itself raises concerns about the visibility and importance attached in that society to the protection of members of the LGBTIQ community.
[Ms A] also corroborated the applicant’s claims that he had tried to involve the police to assist protect him from the serious harm he experienced at the hands of family members who were embarrassed by the way he was. [Ms A] also spoke convincingly about the sort of ‘diversionary’ programs run by the police involving Kava ceremonies and other community events so as to underplay the seriousness of what the applicant had experienced – this tactic was also used as a way of normalising brutality towards gay people in Fiji.
The DFAT country report states that there is a moderate risk of discrimination and violence towards LGBTIQ persons in Fiji but given the lack of visibility of the problem, the Tribunal is not satisfied that such a problem does not exists on a wider and more serious scale and that the police, authorities and the Church do their best to minimise violence towards members of the LGBTIQ community to keep a sense of social order as reflected in country information.
The Tribunal is satisfied on the basis of the third-party evidence and on the strength of the applicant’s credibility, that the applicant has a well-founded fear of persecution were he to return to Fiji now or in the reasonably foreseeable future. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Rosa Gagliardi

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.
…

‘Facing Intersecting Crises: LGBTI1 + Resilience in Fiji’, Open Global Rights, Marisa Hutchinson,
18 December 2020,

[2024] AATA 2649

8 March 2024

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