2200161 (Refugee)

[2024] AATA 1044

2200161 (Refugee) [2024] AATA 1044 (8 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2200161

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Andrew Verduci

DATE:8 February 2024

PLACE OF DECISION:  Melbourne

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 February 2024 at 1:20pm

CATCHWORDS
REFUGEE – protection visa – Fiji – membership of particular social group – homosexual woman – shamed, bullied and assaulted by family and community – delay in applying for protection – multiple entries and departures – applied after father, supporter and village head, died – supporting statements – consistent, credible and compelling evidence – country information – moderate risk of official and societal discrimination and violence – police protection not always available – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5J(1)(a), (4), 5L, 36(2)(a), 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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a citizen of Fiji who does not have a right to enter and reside in any other country. She arrived in Australia in April 2019 as the holder of a Visitor (Subclass 600) visa. She lodged an application for a Protection visa in July 2019 which was refused in December 2021 under s 65 of the Migration Act 1958 (Cth) (the Act). This is a review in relation to that decision.

2. For the reasons below, I have found that the decision under review should be remitted for reconsideration.

   Protection visa application

3. The applicant’s claims can be summarised as follows:

   ·She was verbally assaulted and bullied by her own family and village community for being gay. She was classified as a sinner and publicly shamed by men and women, especially in her own village.

   ·She previously had the support of her father (now deceased) who was the village head.

   ·She never sought help from authorities because being gay is taboo and brings shame to the Fijian community and culture.

   ·The (former) Prime Minister hates the LGBT community, giving the soldiers and police the power to physically abuse LGBT members in public with nothing done to protect them.

   ·She will be on a blacklist in Fiji because she applied for protection in Australia. She will be tortured and put in jail for giving Fiji a bad name.

4. The applicant attended an interview by telephone with the delegate and expanded upon her claims. I have had the benefit of listening to an audio recording of that interview.

   Delegate’s decision

5. The delegate found that the applicant did not satisfy the criteria in s 36(2) of the Act. The delegate accepted that the applicant is a lesbian but found that she would not face a real chance of serious harm or a real risk of significant harm in Fiji for that reason. The delegate did not accept that she had anti-political opinion or that she was on a blacklist in Fiji.

   Application for review

6. The applicant applied for a review of the delegate’s decision in January 2022. Relevantly, her application was review was accompanied by

   ·a copy of the delegate’s decision;

   ·a letter from the [Hospital] about accessing historical medical records;

   ·a copy of a death certificate for her late father; and

   ·letters of support from a current and ex-partner, an aunt and uncle in Australia, the village head man in Fiji and [Organisation 1].

   Tribunal hearing

7. The applicant attended a hearing before me on 7 February 2024 to give evidence and present arguments. She was accompanied by her mother, who had recently arrived in Australia from Fiji, and an aunt who is an Australian permanent resident. An interpreter was not requested and I am satisfied that an interpreter was not required.

8. The applicant submitted a folder of documents at the beginning of the hearing. Relevantly, this included additional letters of support from [Organisation 2] and from other family members, as well as copies of supporting letters she had already provided.

   CRITERIA FOR A PROTECTION VISA

9. 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.

   Mandatory considerations

10. 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.

    Country information

11. DFAT assess that LGBTI people in Fiji face a moderate risk of official and societal discrimination. [1] For context, For context, the term ‘moderate risk’ suggests a pattern of behaviour; ‘official discrimination’ includes behaviour by state employees towards a particular group that impedes access to state protection or services otherwise available; and ‘societal discrimination’ includes behaviour by members of society (including family members and others) that impedes access by a particular group to goods or services normally available to others (such as rental accommodation, for example), and ostracisms or exclusion by members of society (including by family and others).[2]

    [1] DFAT Country Information Report, Fiji at [3.65], (20 May 2022).

    [2] DFAT Country Information Report, Fiji, p.4, (20 May 2022).

12. This assessment recognises that gay sex was decriminalised in Fiji in 2010, and that Fiji is one of few countries to have constitutional protections against LGBTI discrimination. While same sex couples can, and do, live in Fiji, same-sex marriage is not legal.[3]

    [3] DFAT Country Information Report, Fiji at [3.58], (20 May 2022).

13. The assessment also suggests that many LGBTI Fijians hide their sexual identify due to homophobic and transphobic attitudes amongst Fijian society. It is uncommon for LGBTI people to come out to their families and, when they do, they are often not accepted. Sources report on the societal belief in the efficacy of ‘corrective rape’ of lesbians being prevalent in the indigenous Fijian community, although DFAT suggests it has no way of assessing or verifying the prevalence of this practice.[4]

    [4] DFAT Country Information Report, Fiji at [3.60], (20 May 2022).

14. DFAT also assess that LGBTI Fijians face a moderate risk of violence.[5] The term ‘moderate risk’ again suggests a pattern of behaviour. Official statistics on violent crimes against LGBTI people are not available. Taboos against reporting violence against LGBTI people exist which makes patterns difficult to identify, and many LGBTI people may hide their identify because of homophobia and transphobia. However, NGOs as recently as 2022 have reported that violence against LGBTI people was common and that transgender women in particular face extremely high levels of sexual and gender-based violence, including routine harassment and targeting by police.[6]

    [5] DFAT Country Information Report, Fiji at [3.65], (20 May 2022).

    [6] ‘Country Reports on Human Rights Practices for 2022 – Fiji’, US Department of State, 20 March 2023, p.20; DFAT Country Information Report, Fiji at [3.60] – [3.65], (20 May 2022).

15. Police protection is not always available. LGBTI people are often discouraged from reporting crimes to the authorities for fear of further violence or harassment and LGBTI communities have been subject to discrimination and punitive treatment by Fijian police.[7] Accordingly to some research conducted in 2018, 76 per cent of surveyed LGBTI people did not feel safe going to the police, and numerous respondents stated they had been beaten by the police due to their sexual orientation or gender identity.[8] Taboos around reporting violence against LGBTI people also exist.[9]

    [7] ‘Country Reports on Human Rights Practices for 2022 – Fiji’, US Department of State, 20 March 2023, p.20; Sexual and reproductive health and gender-based violence in Fiji: A review of policy and legislation, Rowe, J, Sullivan, C and Vaughan, C, United Nations Population Fund (UNFPA) and the University of Melbourne, 26 October 2022, p.61.

    [8] DIVA for Equality concerned about the treatment of LGBTQI people by some police officers, Fiji Village, 13 September 2020.

    [9] DFAT Country Information Report, Fiji at [3.65], (20 May 2022).

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. I found the applicant’s evidence to be consistent, personal, credible and compelling. Where relevant, it is supported by documentary evidence and witness statements which I also accept.

17. I accept that the applicant is a gay Fijian woman who identifies as a lesbian. Her evidence regarding her sexual identity has been consistent and credible over a long period of time, and she has described to the delegate and to me her own lived experiences with detail and nuances. These include realising that she thought differently about girls and boys at a young age, and admiring and wanting to connect with girls in a different type of way. I also accept that, as this realisation developed, so too did her concerns and thoughts about keeping it a secret. Her fear of bringing shame to her family, breaking societal taboos and being verbally and physically abused by others is consistent with the independent country information noted above.

18. I accept that the applicant engaged in lesbian relationships throughout her life, and that these relationships have caused her to be verbally and physically abused by members of her family and the broader Fijian community. This is consistent with, and supported by, the available country information. Her claim to have been physically assaulted by a distant cousin on one occasion because he disapproved of her relationship with another women was supported by the evidence of her aunt during the hearing, and I accept that this incident involved her being punched in the face and requiring medical attention. Whilst she attended a hospital for treatment the next day, she did not tell the hospital staff the true cause of the incident because of her fear for how they would respond.

19. I accept that on a second occasion, when in a relationship with a different woman, that woman’s brother threatened to kill the applicant with a knife when he found out about their relationship. The applicant and her partner were forced to move out the partner’s home and rented a house together elsewhere in order to continue their relationship. The applicant did not seek to embellish her evidence by suggesting that her partner’s family members looked for her or sough to harm her after that, and I find that they did not.

20. Despite these incidents occurring throughout her life, the applicant described the presence of her father as her ‘protector’ and main source of support. I accept her evidence that her father was aware of her sexual identity and accepting of it. She enjoyed the benefit of her father’s support and protection, especially for the period that her father was village head man. Whilst I am conscious that the applicant made multiple visits to Australia between 2017 and 2018 but did not apply for a protection visa until her most recent travel in 2019, I accept her explanation that the death of her father in March 2019 was a significant change in her circumstances and made her asses her options differently. Her evidence regarding the death of her father at this time is consistent with the documentary evidence provided.

21. Even with the support and acceptance of her father, the applicant has been required to live a discrete life in Fiji to avoid shaming her family name and being verbally and physically abused because of her lesbian relationships. This has involved living away from her family village and avoiding outward displays of affection to her partners when in public. When she has not been so discrete, or has been observed by others and the subject of gossip and rumours, I accept that she has experienced mistreatment by others as result.

22. Since being in Australia, I accept that she has openly lived her life as a lesbian woman and that she would continue to do so if returned to Fiji. The applicant’s evidence about this was consistent with her witness who attended the hearing and gave evidence to me about these issues.

23. I find that the applicant fears being persecuted for reason of her sexual identity, being a gay or lesbian woman. This is a particular social group for the purposes of ss 5J(1)(a) and 5L of the Act. The characteristic is shared by each member of the group, the applicant shares this characteristic with this group and the characteristic is innate or immutable. The characteristic is fundamental to her identify or conscience and she should not be forced to renounce it. The characteristic distinguishes the group from society and is not a fear of persecution.

24. I find that the verbal and physical abuse she will experience, involving harassment, intimidation, exploitation and/or hate crimes, will be significant physical harassment and/or significant physical ill-treatment which amount to serious harm. Having regard to the country information set out above, as well as her own lived experiences as a gay or lesbian woman, I find that there is a real chance she will suffer serious harm for reason of her sexual identify.

25. For the purposes of s 5J(4) of the Act, I find that the persecution she fears is for the essential and significant reason of her sexual identity, being a gay or lesbian woman, and involves serious harm and systematic and discriminatory conduct. I also find that the relevant State, being Fiji, is unwilling to offer effective protection measures. There is no evidence to suggest that she has a right to enter and reside in any third country, and I find that s 36(3) of the Act does not apply.

26. Accordingly, I am satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

    DECISION

27. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

    Andrew Verduci
    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.

    …