2115339 (Refugee)

2115339 (Refugee) [2024] AATA 1522 (7 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr James Chung
CASE NUMBER:  2115339
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Rosa Gagliardi
DATE:7 February 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 07 February 2024 at 9:40am
CATCHWORDS
REFUGEE – protection visa – Fiji – victim of domestic violence – particular social group – women in Fiji whose ex-husband has political and societal influence – country information – state protection – police violence and corruption – attitude towards domestic violence – return to the matrimonial family – sexual assault in intimate relationships – 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 21 October 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) applied for the visa on 12 September 2018.
The delegate refused to grant the visas on the basis that the decision-maker in the first instance was not satisfied that the applicant is 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 she will suffer significant harm as defined in s.36(2)(aa) of the Act.
The applicant appeared before the Tribunal on 6 February 2024 to give evidence and present arguments.
The applicant was represented in relation to the review.
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, she would be persecuted for one of those reasons and/or whether she would suffer serious harm. In the alternative, the Tribunal is required to consider whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Fiji, there is a real risk that the applicant will suffer significant harm as defined in s.36(2A) of the Act.
For the following reasons, the Tribunal has concluded that matter should be remitted for reconsideration.
Claims at the time of application
In her application submitted to the Department the applicant confirmed that she had experienced harm in Fiji. In providing details of the harm and the person/s responsible for such harm the applicant wrote it involved, “Physical, verbal, emotional, financial and mental abuse by my husband as he is always insecured, controlling and jealous. He collects a lot of false accusations about me from his families and friends which always lead us to having arguments and fights. I always end up at the hospital with injuries after our fights”. (As written).
The applicant confirmed that she had sought help within her country after the harm as she had filed charges as well as obtained a restraining order. The applicant indicated she had tried to move to another part of the country to seek safety and explained she had tried to moved to the United States but she needed support if she were to settle there and further, she “Did not have the same immediate family members in the States like I have here in Australia, my brother and my cousin sister who have gone out of their way to provide and assist with whatever I may currently be going through”.
The applicant was also asked what she thought would happen to her if she returned to Fiji and she stated that she will face the same risks and experiences as before and chances of survival may never be guaranteed. She indicated that she thought she would be mistreated if she returned to Fiji. Asked to provide details the applicant stated:
My husband, xxx, will again repeat the same threats and abuse. As have earlier mentioned, he is always insecured, controlling and jealous. He collects a lot of false accusations about me and from his families and friends which always lead us to have arguments and fights and I always end up at the hospital with injuries after our fight. (As written).
The applicant also expressed the view that the authorities of her country cannot and will not protect her if she returns to Fiji. She was asked to provide details:
The last experience lead to one of my daughters getting sick from crying and not eating for the number of days my husband was imprisoned and locked away in the cell. If the matter is to re occur, the safety and well being of my children will always be taken as priority. This might even mean reconciliation and counselling as a settlement option which still does not guarantee my safety. (As written).
The applicant stated that she would not be able to relocate within her country because Fiji is a small country, and everyone knows almost every other person. She had attempted this method and it did not work because he was still able to find them. Moreover, “Further abuses and mistreatment occurred after and they got even worse”.
At the time of application, the applicant submitted, among other things:
·Letters from family and friends supporting the applicant’s claims of having experienced family violence.
·Photograph of who appears to be the applicant with swelling and bruising on the eyes and lower lip.
·Certified copy of a Domestic Violence Restraining Order (DVRO), which identifies the applicant as “the protected person” and her ex-husband as “the respondent”. It indicates that a Court Order was made under section 27 of the Decree, with the additional condition the order is made “permanent”, dated [in] July 2018.
·Certified copy of Fiji Police Medical Examination Form identifying that the applicant had been assaulted by her husband [in] July 2016 (pages 1,3, 4,5 and 6 only).
·The applicant submitted an email to the Department stating she was in the process of requesting a dissolution of the marriage between her and her ex-husband, but he was not agreeing to this. She also stated that her ex-husband had tried to contact her via [social media], using one of her old accounts. Her ex-husband informed the applicant that he was making arrangements to travel to Australia and study at [University 1] and was going to apply for a student visa. The applicant believed her ex-husband wanted to travel to Australia to reconcile. In Fiji her ex-husband had told her that he would kill her if she left him or entered into a relationship with another man.
·On 15 March 2020, the applicant wrote to the Department and advised that it had come to her attention that her ex-husband had entered Australia and was in Melbourne. She had made inquiries with the police in Canberra and was advised to obtain a restraining order. The applicant also advised she had tried to reach out to her children and was told by her ex-husband that he would make every effort to get “there” and that he threatened her in Fijian to the effect that there would be bloodshed if he saw the applicant with another man.
·The applicant provided evidence that she had successfully filed for dissolution of marriage, which the Fijian Court granted by way of a Certificate of Final Dissolution of Marriage issued by the Family Division of the Magistrates Court of Fiji at [Town 1], between the applicant and her ex-husband, dated [in] November 2020.
·Interim Family Violence Order (IFVO) issued by the Magistrates Court of the Australian Capital Territory (ACT) dated [in] March 2020.
·
Evidence of the applicant attempting via a third party in Fiji to obtain copies of documents from the court, seeking among other things, the interim DVRO order, the matter filed with the court and the application from Police Mobile, dated

[in] February 2021.
·Evidence of the applicant attempting to obtain documents in Fiji on her behalf from the [Town 1] police and other material.
·Correspondence between the applicant and her step-son in Fiji who updates the applicant on the welfare of her three children there;
·A letter by [Reverend A], from [Church 1] in [Town 2] regarding marriage counselling sessions attended by the applicant and her former husband.
After having considered the evidence, the delegate concluded that the applicant was not owed protection in Australia under the Migration Act. The delegate did, however, accept the following as reflected in the Departmental decision stating:
·“I am satisfied that the applicant entered into a relationship with xxxx in 2002 and that they were married in 2009”.
·“…considering all the information before me, I place weight on these letters as the authors have provided information which appears to be consistent with the circumstances and claims of the applicant”.
·“The DVRO does, however, state that it is permanent and there is no end date listed. It also shows that it was issued to protect the applicant from harm, including physical violence, threats, intimidation, harassment and abusive behaviour. I place weight on this as evidence that the applicant had approached the police and was granted a permanent restraining order”.
·In relation to the letter from [Reverend A], “Whilst the letter does not provide a comprehensive illustration of the issues raised during these counselling sessions, the information is consistent with the events as claimed by the applicant”.
·The Fiji Police Medical Examination Form relating to an incident of assault perpetrated by the applicant’s ex-husband [in] July 2016, involving the applicant repeatedly being punched in the face, and sustaining swelling and bruising on the temple, jaw, neck and chest, and small lacerations, together with the photographic evidence taken in 2016 at hospital, “is also consistent with the applicant’s account of her claims. I afford considerable weight to these documents as evidence to support the applicant’s claims that she suffered physical harm during an incident of domestic violence which was reported to the police in 2016”.
·“The applicant’s oral account of the incidents of abuse she faced in Fiji is relatively consistent with the applicant’s written claims as outlined in her application form. The applicant’s responses at interview appeared to be spontaneous in nature and as if she were recalling details from a personal and lived experience”.
·“I note, whilst the applicant did not provide evidence of the temporary restraining order, she submitted evidence of her several attempts to obtain this information. The applicant has also provided significant evidence to show that she was experiencing domestic abuse for several years. Having considered all the information before me, I find the applicant’s claim that she was domestically abused by her ex-husband to be credible. I also find genuine the applicant’s claim that she attempted to relocate, having moved to live with her father and brother, and having spent time in the US. Further, I accept that the applicant obtained a temporary restraining order against her ex-husband and later was issued a DVRO”.
·“Considering all the information before me, I am willing to accept that the correspondence between the applicant and her step-son via a messaging application is genuine. I also place weight on the email correspondence between the applicant and her ex-husband, as evidence that the applicant’s ex-husband has threatened to withdraw the applicant’s access to her children”.
·“Taking into account all of the above, I accept that the applicant’s ability to see her children has been restricted by her ex-husband”.
·“I also accept that the applicant has been in contact with her step-son and that (her) ex-husband has engaged in domestic violence against the applicant’s daughter, xxx”.
The delegate found that the applicant was a member of a particular social group, being ‘separated Fijian women’.
Ultimately, the delegate found:
Based on the evidence submitted by the applicant and her oral account at interview, the applicant has maintained contact with her family members. Given that the applicant’s family are supportive of her decision to divorce her ex-husband and have provided her assistance and a level of protection in the past, I consider it highly plausible that the applicant will have access to the same level of support if she were to return to Fiji.
And:
Whilst I have found that the applicant’s ex-husband has contacted her and threatened her in the past, there is no evidence of recent or present threats of harm or an intention to reconcile their relationship. The applicant claims that there is also a potential for violence to escalate given she is presently in another relationship. Given the period of time since their separation, the finalisation of their divorce, that the applicant’s ex-husband is in a relationship of his own, and that the applicant has the support of her father and brother in Fiji it is doubtful that the applicant’s ex-husband would seek to be reunited with the applicant or cause her harm because she divorced him and has entered into another relationship.
Further:
…I consider that the authorities in Fiji have shown a willingness and the ability to provide the applicant with adequate assistance and protection in the past.
In essence it was concluded that the applicant had effective protection in Fiji and that there was not a real chance that she would face serious harm there now or in the reasonably foreseeable future.
NB: The Tribunal would like to highlight that while the Tribunal did not reach a similar conclusion to the delegate and did not agree with his/her reasoning, the decision is impeccably written and that a great deal of country research has been undertaken in making the decision. The care and thoroughness with which the decision has been made is evident.
Evidence submitted at time of review
The applicant’s migration agent made a submission dated 30 January 2024, highlighting the matters the delegate had accepted and pointing to the updated DFAT Country Information Report for Fiji, 20 May 2022, which indicates that despite the no-drop policy for domestic violence cases which means ‘cases cannot be dropped by police or withdrawn by the victim and must be investigated’, women continue to experience high levels of family violence because few cases reach the courts, and those that do are frequently dismissed or light sentences handed down and that police protection is reportedly inadequate to protect women at risk of violence. Furthermore, the policy was not implemented in all cases and police did sometimes drop domestic violence cases or were unhelpful or even hostile to victims.[1]
Importantly the migration agent also indicated that the applicant’s former husband is [an Occupation 1] at [a public institution] and a political figure as he had stood in the last general election under [Political Party 1], which the applicant asserts may have been the reason she was turned away by the authorities so frequently. Both these facts the Tribunal has found are credible and there is public information verifying the applicant’s former husband’s identity and occupation.[2]
In addition, the applicant has submitted a psychological assessment report for the applicant, by a registered psychologist, dated 24 January 2024, who conducted a face-to-face structured interview with the applicant and administered a mental status examination by way of a psychometric test which measures emotional states of the applicant. The report refers to the applicant’s former husband being a “well-known person in the community, local church and political circle”. The psychologist states that this was the reason her former husband was able to use his influence to cover his acts and kept control of his wife and children.

The findings of the psychologist’s report indicate that the applicant was coping poorly with post-traumatic stress disorder and that it was evident that the applicant had been subjected to various forms of abuses including those of a financial, emotional and physical nature. The report mentions that the applicant’s case “clearly falls within the scope of Domestic Family Violence and that she has reasonable grounds to fear for her safety if she has to leave Australia”. The psychologist also reports that the applicant’s general health is very fragile, and the effects of the abuses are still being felt. Other observations are that the applicant is still very fearful of her former husband who continues to exert control of the children who also fear him and that while the children are living separately from their father at their grandfather’s place, her daughters have been psychologically abused by their father and by new partners he has had over time.
Other evidence submitted includes:
·Statutory declaration by the applicant confirming in detail the events she experienced in Fiji, dated 15 January 2024.
·Statutory declaration by the applicant’s father, dated 10 January 2024, declaring among other things, “On or around [date] July 2016 at around 5.30pm I received a call from my daughter to meet her at [named medical facility]. She was in a dilapidated state and was weeping openly on the other end of the telephone. She has been assaulted by her husband and was needing medical assistance from hospital…In June of 2022; her daughters had absconded from [Village 1] in a Truck to seek refuge at our home against their own father. These young premature teenagers who are victims of poor parenting and regular abuse”.
·Statutory declaration from the applicant’s eldest daughter dated, 10 January 2024, declaring that she has been witness to the habitual abuse and assaults on her mother, involving being beaten by window sticks, belts, punched, kicked and sworn at that has landed her in hospital many times. The applicant’s daughter states that she “interfered on a few occasions – and have also been belted and told to follow my line as a female.” In addition, “In 2022, I took my sister – xxx in a carrier at nighttime in the midst of so many grown men to hide in my Uncle and Grandpa’s residence in [location]. I feared for our safety from our Dad as he had been drinking a lot and bringing various old women to our home. These women my dad brought home demanded us to serve them in odd occasions – and had disrupted our school work”. And, “My siblings and I are now residing at my Uncle and Grandpa’s residence, however, on many occasions, my Dad would come to the house and abuse my Uncle and Grandpa…”.
·A letter dated 2 January 2024 by the applicant’s sister, stating of the applicant’s former husband, “Mr xxx comes from the chiefly household of [Village 1], [Province 1]. He is [age] years of age and the huge imbalance in their ages; I verily believe carries much discomfort for the latter. He is [Occupation 1] by profession with [a public institution], and a political figure that stood on the last General Election under [Political Party 1]. A very influential and dominant figure within our jurisdiction and ably supported by his birth right”.
·Letter from a Mental Health Worker, NSW, dated [in] January 2024 as the applicant was pursuing a separate matter as a Victim of Crime in Australia and the applicant had sought assistance as of October 2022. Incidentally, the Mental Health Worker refers to the applicant’s revelations of family abuse in Fiji at the hands of her former husband and her fears of returning to him.
Evidence at hearing before the Tribunal
The applicant found the hearing difficult and was tearful throughout and the Tribunal has no doubt that the events she claimed happened, actually occurred. She stated that initially the abuse started as verbal belittling and harassment involving swearing and that it then turned to physical violence. When she suffered physical violence between 2009 and 2016, she was on occasions hospitalised. Despite the staff at the hospital possibly being aware that her injuries were due to family violence they did not refer her to any women’s crisis centre or other agency to assist her. They simply treated her injuries. The applicant gave details about the physical abuse sustained in 2016 when the applicant’s former husband threw a hot bowl of [food] on her (which she partially managed to avoid) and punched and kicked her. She stated that she had been treated by antibiotics to deal with the wounds inflicted.
The applicant stated that she had attempted to get the police’s attention regarding the continuing abuse experienced at her ex-husband’s hands but that they always encouraged her to go home and reconcile. The Church similarly encouraged the parties during counselling to forgive one another and to continue their marriage.
The applicant explained that she had left a job [in] Fiji because the stress of dealing with the family violence overwhelmed her and she could not continue in the position.
The Tribunal asked the applicant whether her former husband had ever sexually abused her while they were married or at any time. The applicant responded that they were sleeping in separate rooms on occasions because he used to have many marital affairs. He would go into the room she was sleeping in and force her to have sex with him and if she did not oblige, he would beat her, so she gave in. The Tribunal asked the applicant whether she had not discussed this type of sexual assault previously due to embarrassment and she confirmed this was the case.
The Tribunal expressed concerns that there had been no serious attempts by the applicant’s former husband to contact her while he was studying in Melbourne. The applicant stated that she thought he had only been in Australia for about a week and then had been “sent home”. She did not know the particulars of why he did not continue his studies in Australia. She stated that in Australia her former husband would have known that family violence is not as tolerated as it is in Fiji and therefore, he desisted. It was only if she returned to Fiji that she feared serious harm on account of the fact they shared 3 children and he wanted to see them. The eldest daughter had guardedly disclosed to her mother in Australia that her father had beaten her.
The applicant stated that her own father was taking care of her girls and that her ex-husband was attempting to obtain full custody of the children and she was contesting the matter. When the children had gone to see their biological father, they had run away from him back to their grandfather.
FINDINGS AND REASONS:
The Tribunal has made the same credibility findings made by the Department, that is, that the applicant’s account of the abuse: physical; emotional; psychological, financial; and sexual she encountered at the hands of her former husband is supported by probative evidence and that she has a genuinely held subjective fear of facing serious harm/persecution on return to Fiji now or in the reasonably foreseeable future.
The Tribunal places significant weight on the third-party statements which appear spontaneous and detailed. The Tribunal in particular places weight on the Mental Health Worker’s psychological report of [date] January 2024 in which the applicant had mentioned the violent background she had come from in Fiji even though at that stage the family violence in Fiji was not relevant to the matters she was pursuing in Australia.
The Tribunal’s task is therefore to make an objective finding about whether there is a real chance that the applicant will suffer persecution or serious harm on return to Fiji based on the evidence before it.
There is a plethora of country information confirming that family violence in Fiji continues to be a vexed issue for reasons of social attitudes and that Fiji’s rate of violence against women and girls is among the highest in the world.[3] As the applicant herself highlighted at hearing religion in Fiji often hindered dealing with family violence in a constructive manner:
Often religious groups are misrepresenting marriage vows to keep women in violent relationships and failing to take action on reports of violence against women and girls.
This was highlighted by Fiji Women’s Crisis Centre’s Male Advocate Tevita Seruilumi while speaking to 36 police officers from the Southern Division Command Group undergoing a five-day training facilitated by the Centre in Suva this week.
Speaking on the topic of violence and religion, Mr Seruilumi said more often religious groups fail to take action on cases of violence against women brought to its attention.
“Often churches or religious groups talk about forgiveness or reconciliation to women who have been survivors of violence without looking at their pain and suffering”, he said.
“Messages such as ‘till death do us part’ or blaming women for family breakdowns when they leave abusive relationships cause more harm to survivors.”
….
He told the participants that it is never the purpose of any religious groups to see women suffer or die as a result of violence or inhumane treatment.
…
FWCC Coordinator Shamima Ali said while a lot of work is now being done in churches to create awareness on violence against women and girls, the progress is slow.
‘If you look at our religious institutions, the hierarchy is very patriarchal”, Ms Ali said.
…
She also highlighted to the participants that one of the barriers of police response to violence against women and girls were the entrenched religious and cultural beliefs.[4]
Most recent data from the Fiji Women’s Crisis Centre (FWCC) reports that approximately 64% of Fijian women have experienced physical or sexual violence by an intimate partner during their lifetime (including 61% who were physically attacked and 34% who were sexually abused).[5]
Further, in the Indigenous and Indo-Fijian communities, traditional and religious reconciliation practices are sometimes used to mitigate domestic violence sentences.[6] Under such practises, there is significant pressure on women to reconcile with husbands and partners following incidents of domestic violence, rather than seeking justice through the formal legal system.[7] The audit by the Fiji Auditor General in 2019 also found that there is ‘inconsistency’ in the application of legislation that prohibits violence against women in Fiji.[8]
In addition, police protection is available but not consistently and some police stations do not have the equipment or transport to deal effectively with cases of gender-based violence.[9] A more recent article states:
The lax attitude of the police towards domestic violence cases against women has worsened the situation, with escalating reports over the past 10 years, Says Fiji Women’s Crisis Centre co-ordinator Shamima Ali.
When contacted about a domestic violence victim not having her statement recorded by the police in Labasa last month, Ms Ali said, “I am not surprised at all.
“That is an everyday thing for us as we receive complaints and concerns from women who experience similar situations”, she added.
Ms Alsi said two years ago in Seaqaqa a woman complained to the police of threats from her partner, but instead the officer asked her in Hindi whether anything had happened to her.
“Not long after that xxxx and her family were attacked by the same man,” Ms Ali said.
“The way police handle women’s issues is bad. I don’t know what they’re teaching at the police academy because the new grads and young officers don’t know the law relating to domestic violence”.
Ms Ali said they have engaged the services of a former police officer to deal with such matters.
“It is not the responsibility of the police to reconcile the couple or promote reconciliation of any matter, like the religious way because the man has to pay for his actions, and this is also biblical…

“This is really sad. With the police treating women this way, they will not resolve the matter. I hope they seriously consider making positive changes when it comes to women and domestic violence.
“The police need proper training because in a training we held with them, we found out that the young ones don’t understand the law when dealing with domestic violence. And the older officers are just stuck in their ways.”[10]
Further, during 2022 Fijian courts dismissed some domestic violence cases and gave perpetrators light sentences.[11]
In terms of relocation, while there are no such legal limits, Fiji is geographically small and land is tightly held in kin groups, which limits internal relocation in practice. According to DFAT, “There are limited prospects for female victims of domestic and family violence to relocate to other areas of Fiji”. DFAT also notes “relocation is not necessarily helpful” for such women, stating that given Fiji’s relatively small size, women escaping violence can sometimes be tracked down through kinship networks”.[12]
The Tribunal notes that the delegate had some concerns that the applicant went back to live with her ex-husband between 2016 – 2018 with the implication that this diminished the applicant’s claims that she held a genuine fear of her former husband for reasons of him perpetrating family violence on her and her children. Having had regard to the applicant’s statements at hearing that for the sake of the children who were still young and given the societal pressure brought upon her by her former husband to appear as a united family given his status, the Tribunal does not find it out of the ordinary that the applicant, despite the serious harm she had endured (and continued to endure), returned to the matrimonial family. The Tribunal in this regard has had reference to Australia’s National Domestic and Family Violence Bench Book, which sets out common myths and misunderstandings about victims of family violence. It states:
Many victims of domestic and family violence may be motivated to leave, however they may face a myriad of barriers including lack of financial resources; concerns for the welfare of children, family and pets; disability, lack of alternative safe accommodation; inadequate formal support systems; disrupted social networks; religious and cultural beliefs preventing them from leaving; and fear of retaliation by the perpetrator. A perpetrator may also use a variety of coercive and manipulative tactics to actively prevent the victim from leaving. These barriers may be too great for a victim to overcome, or they may explain why a victim leaves and returns to an abusive relationship on multiple occasions before finally leaving.[13]
The Tribunal places no adverse weight on the applicant having only come to disclose at hearing when asked had she experienced sexual violence in her relationship, even though this was the first time this type of abuse had been referred to by the applicant. The Tribunal accepts that the matter only came to light as evidence when it was put to her directly. This is particularly so given the cultural and religious context. The Bench Book referred to above states:
While sexual assault in intimate relationships is recognised by the law as a form of domestic violence and a criminal offence, victims may not know or understand this, and police may minimise or fail to respond adequately to such behaviour. Casework experience suggests that many sexual assaults in intimate relationships are unreported, and undisclosed, even where other forms of violence are reported.[14]
Membership of particular social group
The Tribunal finds that the essential and significant reason for the harm feared is because the applicant is a member of a particular social group of “women in Fiji whose ex-husband has political and societal influence”.
The Tribunal finds that in light of the evidence that the applicant’s former husband has political/legal and other connections and is influential, the applicant’s profile as a woman at risk of experiencing serious harm was heightened in Fiji. The applicant herself stated that she had made continuing efforts to have law enforcement deal with her matter but it was only when the harm she experienced in 2016 was so grievous that she was hospitalised for 6 weeks, that the police could no longer turn a blind eye and were forced to have reference to the legislation which criminalises domestic violence and rape, including spousal rape under Fijian law.[15] And the Tribunal accepts that the applicant’s former husband breached his DVRO on several occasions.
Country information shows that impunity is a serious problem in cases with political implications[16] and that reports of police violence and corruption exist.[17] The applicant’s previous attempts to seek assistance from law enforcement need to be viewed in the light of impediments to the applicant accessing durable assistance given her husband’s role in public life and as a [Occupation 1] at a [public institution] in Fiji.
Real chance of serious harm now or in the reasonably foreseeable future
Having accepted that the applicant has suffered serious harm as set out in the Migration Act the Tribunal has now turned its mind to the real chance of the applicant suffering serious harm at the hands of her former husband were she to return to Fiji now or in the reasonably foreseeable future. Evidence of past harm does not always indicate that future harm will occur, although it is an indicator.
The departmental decision noted that there was not a real chance of the applicant suffering serious harm on return to Fiji because the applicant had only made feeble attempts to contact her whilst he was in Australia and went to [University 1], Melbourne and did not approach her in Canberra physically. The Tribunal has considered the applicant’s response to these concerns which the Tribunal finds realistic and totally plausible. On the one hand, it is credible that the applicant’s former husband did not approach the applicant in Canberra, Australia, because he had an awareness that undertaking the same abusive conduct in Australia could have far more serious consequences than the light overnight detention he experienced in Fiji after the 2016 infliction of serious harm on the applicant. The Tribunal also considers that the applicant would not have wanted to jeopardise his standing with the Australian authorities in the event he wished to return to Australia and given that [University 1] and [his employer] undertake several joint [ventures].[18]
The Tribunal could also speculate that the applicant’s former husband was only accepted to study at [University 1] and not at the other universities in Canberra. In any event, the Tribunal notes that the applicant stated that her former husband was not in Australia for an extensive period and that therefore he would not have had a good deal of time to track her down in any event.
The applicant has also now moved from Canberra to Sydney where she feels more anonymous, albeit she continues to fear the applicant might find her.
Were she to return to Fiji, however, the applicant would need to deal with her former husband because of their shared children who are cared for by the applicant’s father but who the applicant’s ex-husband is attempting to gain full custody, a matter that the applicant wishes to contest, leaving the door open to contact (adverse) with her former husband and continued interaction about where the children who are [age], [age] and [age] will live and for how long. It is unrealistic to expect the applicant to disengage in asserting her rights to see her children to avoid engaging with her former husband.
The Tribunal does not accept the Department’s contention that the applicant’s father and brother can provide her with durable protection. As the migration agent has stated in his submission, “given the applicant’s father’s age and health, it would be difficult to understand how relocation would be effective to shelter her”. Furthermore, it has been argued that the applicant’s father was diagnosed with a tumour in 2013 and was air lifted to [Country 1] for treatment and to date requires medical attention. The applicant at hearing stated that her brother had care responsibilities for their father and that he also travelled the country due to his employ. The Tribunal does not doubt that the applicant’s father and brother have provided her with a good deal of support during her difficult marriage and beyond, however, given their circumstances it would be unrealistic to expect them to provide protection which ensures the applicant’s and her children’s physical safety is maintained.

Given the applicant’s former husband’s past abuse of the applicant in Fiji and his breach of the DVRO with impunity, and given the power imbalance between the applicant and her former husband as he has political connections and has attempted to run for parliament, the Tribunal finds that there is a real chance that the applicant will face serious harm on return to Fiji now or in the reasonably foreseeable future on account of her membership of a particular social group; women in Fiji whose ex-husband has political and societal influence. This is particularly so as the applicant has heard from her eldest daughter that her former husband has on several occasions beaten her.
The Tribunal would also like to thank the representative for his detailed and cogent written submission.
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.
…

[1] Australian Government, Department of Foreign Affairs and Trade, DFAT Country Information Report Fiji, 20 May 2022, country-information-report-fiji.pdf (dfat.gov.au).

[2] [Source redacted].

[3] Australian Government, Department of Foreign Affairs and Trade, DFAT Country Information Report Fiji, 20 May 2022, country-information-report-fiji.pdf (dfat.gov.au).
4 Fiji Women’s Crisis Centre. FWCC Statistics. 2023. ‘Religion and violence’, Fiji One News, 5 November 2020, Fiji One News - Religion and violence Often religious... | Facebook

5 Country Reports on Human Rights Practices for 2022 – Fiji’ US Department of State, 20 March 2023, Fiji - United States Department of State.

7 ibid.
8 Australian Government, Department of Foreign Affairs and Trade, DFAT Country Information Report Fiji, 20 May 2022, country-information-report-fiji.pdf (dfat.gov.au).
9 ibid.

[11] Country Reports on Human Rights Practices for 2022 – Fiji’ US Department of State, 20 March 2023, Fiji - United States Department of State.

[12] Australian Government, Department of Foreign Affairs and Trade, DFAT Country Information Report Fiji, 20 May 2022, country-information-report-fiji.pdf (dfat.gov.au).

[13] ‘National Domestic and Family Violence Bench Book’, Australasian Institute of Judicial Administration, Updated for 2023, National Domestic and Family Violence Bench Book - Australasian Institute of Judicial Administration - Australasian Institute of Judicial Administration (aija.org.au).

[14] Ibid.

[15] Country Reports on Human Rights Practices for 2022 – Fiji’ US Department of State, 20 March 2023, Fiji - United States Department of State.

[16] Australian Government, Department of Foreign Affairs and Trade, DFAT Country Information Report Fiji, 20 May 2022, country-information-report-fiji.pdf (dfat.gov.au).

[17] ‘Freedom in the World 2023 – Fiji’ Freedom House, 31 August 2023, Fiji: Freedom in the World 2023 Country Report | Freedom House.

[18] [Source redacted]

[2024] AATA 1522

7 February 2024

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