2202874 (Refugee)

[2023] AATA 2510

2202874 (Refugee) [2023] AATA 2510 (19 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Eric Zhang

CASE NUMBER:  2202874

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Damian Creedon

DATE:19 May 2023

PLACE OF DECISION:  Perth

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

Statement made on 19 May 2023 at 11:27am

CATCHWORDS

REFUGEE – Protection Visa – Fiji –fears harm from his ex-wife’s family in Fiji – a victim of Family Violence – suffering from mental illness –criminal conviction – family violence against men – a real risk that the applicant will experience acts of violence or intimidation – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5H, 36, 65, 499

Migration Regulations 1994, Schedule 2

CASES

MIEA v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445
Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 28 February 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

   Background:

2. The applicant, a [age]-year-old citizen of Fiji, applied for the visa on 25 January 2022.

3. The applicant first arrived in Australia on [date] September 2012 as the holder of a Prospective Marriage (Subclass 300) visa granted on 29 August 2912.  On 10 May 2013 the applicant was granted a Partner Visa (temporary) (Subclass 820) visa.  That visa was ceased on 2 August 2016.  The applicant is presently in immigration detention.

   Protection visa application:

4. The applicant’s written claims for protection are set out in his protection visa application; in summary they are as follows:

   a.the applicant fears returning to Fiji following the breakdown of his marriage in Australia to another Fijian citizen.  The applicant claims to have directly and indirectly received threatening telephone calls from his ex-wife’s family in Fiji and claims to fear for his life if he returns there.

   b.The applicant also claims to have suffered a significant physical injury while in immigration detention, and fears returning to an inadequate healthcare system in Fiji.  Further, the applicant claims to be suffering from mental illness and fears returning to an inadequate mental healthcare system there.

5. The applicant did not participate in an interview with the delegate of the Minister

6. The delegate refused to grant the visa on 28 February 2022 on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm.

7. The delegate’s decision record sets out the following relevant information (references omitted):

   Home region & family

   In his Protection visa application form dated 25 January 2022, the applicant has declared that he was born in [City 1] (which is located in Ba Province), that from 1980 until 2000 he lived in [another area] in Ba Province and that from 2000 to 2012 he lived in [City 2], Ba Province.

   The applicant’s birth certificate records that he was born in [City 1] Hospital, and his passport records his place of birth as being [City 1].

   Considering this information, I am satisfied that the applicant’s home region is Ba Province.

   In his Protection visa application form, the applicant has declared that he has a sister named [Ms A], who is an Australian citizen residing in Australia. He has also declared that he is in contact with his brother [Mr B] , who lives in the suburb of [a suburb] in [City 2], Fiji.

   As I have no cause to doubt this information, I accept that the applicant has an Australian citizen sister residing in Australia and a brother residing in [City 2], Fiji.

   Health issues

   In his Protection visa application form, the applicant mentions experiencing medical conditions relating to an accident in [an] Immigration Detention Centre which occurred on 7 December 2017 and caused him a lower back injury. He declares that he had three spinal surgeries, with the last being performed on 21 July 2021. He declares that after that he has required use of a wheelchair and a full-time carer, and he alludes to him taking medication for pain management.

   As stated above, the applicant has provided a number of documents relating to his ongoing health issues. Having viewed the documents stemming from various medical professionals, I am satisfied that the information reported in them is credible. Considering the information before me, I accept the following regarding the applicant’s health:

   ·The applicant had a lower back operation for a ‘slipped disk’ in Fiji in about 2003;

   ·He slipped over on 17 December 2017 and was subsequently assessed as having acute chronic back pain - this required him to begin the use of a wheelchair;

   ·He was admitted to hospital [on] 28 December 2017 - he was discharged on 4 January 2018 and transferred to Perth;

   ·On 6 July 2018 he underwent a [surgery] at [Hospital 1] - he was discharged on 13 July 2018;

   ·On 2 October 2020 he underwent a [surgery] at [Hospital 1] - he was discharged on 12 October 2020;

   ·On 12 October 2020 he was admitted to [Hospital 2] for rehabilitation - he was discharged on 19 October 2020;

   ·On 21 June 2021 he was admitted to [Hospital 3] with acute chronic back pain – he was discharged on 9 July 2021;

   ·On 21 July 2021, the applicant had [surgery] at [Hospital 1] in relation to a primary diagnosis of [a condition] - he was discharged on 31 July 2021;

   ·On 31 July 2021, he was admitted to [Hospital 2] for rehabilitation - he was discharged on 18 August 2021;

   ·On 23 & 24 August 2021 he was attended the emergency department of [Hospital 3] in relation to back/neck pain;

   ·On 14 September 2021, the applicant was informed that he had been placed on the [waiting] list for [surgery];

   ·On 3 November 2021, at an appointment at the Neurosurgery Outpatient Clinic of the [Hospital 1], the applicant reported that he was experiencing ongoing severe back pain and numbness in his left leg - he was advised by the attending physician to undertake physiotherapy and to lose weight - he was scheduled for a further MRI scan to check the effects of the surgery on his back;

   ·The applicant has been undergoing occupational therapy in relation to his back issue – as of 8 November 2021 he was reported to have limited mobility with elbow crutches, and to require assistance to stand upright, require accessible facilities to allow him to showering, prepare food and complete other day-to-day tasks, and require assistance with dressing;

   ·The applicant has been under the ongoing management of the Department of Pain Management at [Hospital 1], and has been prescribed numerous medications for pain management - as of December 2021 he was reported to experience left leg numbness and back pain, and was still requiring support and a wheelchair despite being able to mobilise more;

   ·On 30 December 2021 the applicant had [a surgery] in [Hospital 1];

   ·On 1 January 2022, the applicant attended the emergency department of [Hospital 1] due to facial pain - – [he] was discharged on 2 January 2022;

   ·On 15 February 2022, the applicant was found to have recurrent high grade [condition].

   ·The applicant has seen a mental health nurse and psychiatrist while in immigration detention. He has felt low and hopeless due to his ongoing pain relating to his back, has experienced panic attacks, and has experienced anxiety regarding the prospect of returning to Fiji - he has taken [medication] to manage his mental health symptoms.

   Considering the more recent medical information regarding the applicant, I accept that he continues to experience ongoing acute chronic back pain and that he has used a wheelchair to assist with his mobility. I am satisfied that this is currently being managed through analgesic medication, physiotherapy, and follow up with pain specialists and neurosurgery specialists. I am also satisfied that the applicant is consulting mental health clinicians in relation to low mood and anxiety, and that he has been taking medication to manage his mental health symptoms.

8. The applicant applied for a review of the delegate’s decision on 29 February 2022.

   Application for review:

   Procedural history

9. By letter dated 29 April 2022 the applicant was invited to appear before the Tribunal on 14 May 2022 to give evidence and present arguments.

10. By email sent on 1 May 2022 the applicant requested a postponement of the hearing scheduled for 14 May 2022 on account of his ongoing recovery from surgery and his desire to obtain legal representation for his hearing.  By letter dated 2 May 2022 the Tribunal acceded to the applicant’s request to postpone the hearing.

11. By email sent on 14 June 2022 the applicant informed the Tribunal of the following matters (uncorrected):

    Please today I got a call from ASRC LEGAL and they told me to please request AAT to postpone my hearing TILL September.

    My [surgery] was cancelled on 12/05/2022 because 2 days before (10/05/2022) I had covid positive results because I got it from SERCO staff . Now i am waiting for hospital to give me date soon because it's very hard me to seat ,sleep ,and I'm full time in wheelchair with 24/7 carer with me and ABF and IHMS put me in [a] HOTEL so i have better access for wheelchair and disable bathroom and toilet ,and bed .I'm mentally and physically not good and i can't seat long in wheelchair ,and the chronic pain is always there . I don't have money for the lawyers and it's 5 years in the Australian Immigration Detention Center .I had applied for law access , legal aid , law society , and ASRC LEGAL and today I got a call from them .

    Please i will be appreciated it if my hearing is postponed till September so i get help from ASRC LEGAL

12. By email sent on 13 July 2022 the applicant’s representative provided the Tribunal with the following information (materially):

    We are assisting the …Applicant to communicate with you regarding his Protection Visa review application.

    On 28 February 2022, the delegate of the Minister for Home Affairs found [the applicant] was not a person in respect of whom Australia owes protection obligations.

    [The applicant] had major back surgery on 23 June 2022, his 4th surgery in as many years, and he is currently in hospital undergoing rehabilitation.

    We respectfully request that the hearing of his review application be delayed until such time that [the applicant] can properly participate.

13. By letter dated 30 September 2022 the applicant was invited to appear before the Tribunal on 18 October 2022 to give evidence and present arguments

14. By email sent on 7 October 2022 the applicant’s representative requested a postponement of the hearing scheduled for 18 October 2022 on account of having (then) only recently been instructed.  By letter dated 11 October 2022 the Tribunal acceded to the applicant’s request to postpone the hearing.

15. By letter dated 22 November 2022 the applicant was invited to appear before the Tribunal on 5 December 2022 to give evidence and present arguments.

16. By email sent on 23 November 2022 the applicant’s representative requested a postponement of the hearing scheduled for 5 December 2022 “on the basis that the Applicant requires further time to obtain and finalise the evidence which he seeks to rely on at hearing”.  By letter dated 23 November 2022 the Tribunal declined the applicant’s request to postpone the hearing scheduled for 5 December 2022, indicating, however, that it would be preliminary in nature.

17. The preliminary hearing was conducted by telephone as the Tribunal had received information from the applicant’s representatives that, in view of his health conditions, the applicant:

    a.was unable to attend a hearing in person;

    b.would require to be lying prostrate on his back to maintain any degree of comfort; and

    c.would be unable to participate in a hearing for longer than 30 minutes at a time.

18. At the preliminary hearing on 5 December 2022 the Tribunal canvassed with the applicant his health situation and his ability to participate in a hearing, and discussed general arrangements for a second substantive hearing with the applicant’s representative.

19. The preliminary hearing was then adjourned to a date to be fixed.

20. By letter dated 22 December 2022 the applicant was invited to appear before the Tribunal on 7 February 2022 to give evidence and present arguments.

    Material before the Tribunal

21. The Tribunal has before it a range of material, including, relevantly:

    (a)the applicant’s protection visa application forms, which were lodged on 2 March 2022;

    (b)the applicant’s identity documents, being his Fijian passport;

    (c)the protection visa decision dated 28 February 2022 (delegate’s decision);

    (d)the application’s application to the Tribunal for review dated 29 February 2022, which included a copy of the delegate’s decision;

    (e)department file [concerning] the applicant’s protection visa application, which includes all documents submitted to the Department in support of his protection visa application;

    (f)a statutory declaration made by the applicant’s uncle, [name deleted], in Fiji on 1 December 2022;

    (g)a statutory declaration made by the applicant on 2 December 2022 (the Statutory Declaration);

    (h)a statutory declaration made by the applicant’s sister, Ms [Ms A] , in Brisbane, on 2 December 2022; and

    (i)a statutory declaration made by the applicant’s brother, Mr [Mr B], in Fiji, on 2 December 2022.

22. The applicant provided the Tribunal with detailed written submissions supported by three tender bundles.  In total this material comprised some 1,700 pages and falls into the following broad categories:

    a.witness statements and attachments;

    b.health (including mental health) records and opinions;

    c.copies of official documents; and

    d.general country information.

23. Relevant documents will be referred to in detail as required.

24. The Tribunal has read and had regard to the the Department of Foreign Affairs and Trade (DFAT) DFAT Country Information Report Fiji, 20 May 2022 (DFAT Report).

25. The Tribunal has also read and had regard to a number of other sources of country information which are set out in the course of the Tribunal’s analysis below.

26. The applicant appeared substantively before the Tribunal on 7 February 2022 via telephone to give evidence and present arguments.  The Tribunal also heard evidence from the applicant’s sister on that date.  On 16 February 2023 the Tribunal heard evidence from the applicant’s brother in Fiji.

27. Where relevant, the oral evidence to the Tribunal is referred to below.

    Country of reference:

28. The applicant claims to be citizens of Fiji. Based on evidence provided to the Department by the applicant, and in the absence of any other evidence to the contrary, the Tribunal finds that Fiji is his country of nationality and also his receiving country for the purposes of s.36(2)(a) and s.36(2)(aa) of the Act.

29. The Tribunal is satisfied on the basis of the evidence before it that the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that the applicant is not excluded from Australia’s protection obligations under s.36(3) of the Act.

    Assessment of evidence:

    Overview

30. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169-70).

31. The Tribunal is aware of the importance of adopting a reasonable approach in the finding of credibility. In Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pam Run Juan (1996) 40 ALD 445 the Full Federal Court made comments on determining credibility. The Tribunal notes in particular the cautionary note sounded by Foster J at 482:

    …care must be taken that an over-stringent approach does not result in an unjust exclusion from consideration of the totality of some evidence where a portion of it could reasonably have been accepted.

32. The Tribunal also accepts that ‘if the applicant's account appears credible, they should, unless there are good reasons to the contrary, be given the benefit of the doubt’. (The United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, 1992 at para 196). However, the Handbook also states (at para 203):

    The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

33. The Tribunal has considered carefully all of the applicant’s claims, individually and cumulatively, and makes the findings set out herein.

    General background

34. The following background facts are derived from the materials before the Tribunal. 

35. In summary:

    a.The applicant arrived in Australia on [date] September 2012 with a Prospective Marriage visa.  He married Ms [Ms C] on [date] September 2012.

    b.He was granted a Temporary Partner (Subclass 820) visa on 10 May 2013, sponsored by [Ms C];

    c.On 5 March 2014 the applicant was convicted of recklessly causing injury to [Ms C] and he agreed to comply with a 12-month good behaviour bond;

    d.On 17 August 2015 [Ms C] withdrew her sponsorship of the applicant in relation to his Permanent Partner (Subclass 801) visa application;

    e.In November 2015 the applicant had an argument with [Ms C], which led to him being charged with unlawful assault;

    f.On 16 November 2015 a family violence intervention order was issued against the applicant with expiry of 16 November 2017;

    g.On 16 March 2017 the applicant was arrested after [Ms C] reported him to police;

    h.The applicant was imprisoned from [date] March 2017 until [date] June 2017;

    i.On 10 May 2017 the applicant was convicted of ‘making a threat to kill’, ‘contravening a family violence intervention order’ and ‘committing an indictable offence of making a threat to kill’. He was sentenced to 90 days prison;

    j.On 11 May 2018 a final family violence intervention order was issued against the applicant to protect [Ms C] and her two children – this order expired on 10 May 2023.

1. The applicant claims that:

   a.During their relationship, [Ms C] was verbally and physically abusive to him, belittled and humiliated him, and psychologically controlled him. She manipulated him, including for financial gain, by threatening to have him sent back to Fiji or put in jail. She would lock him out of the house and would not let him have his own key. She did not let him talk to his brother or sister, or his two children in Fiji from his previous marriage, and threatened to have him sent back to Fiji if he did; for example, in his Statutory Declaration the applicant states:

   When we returned to Australia [after a visit to Fiji in May 2013], my relationship with [Ms C] declined further as her treatment towards me reverted to how she treated me before we travelled to Fiji.  We could be acting like a normal married couple one minute and then we could be arguing the next minute.  Most of the arguments revolved around money and my value to her became my ability to finance her lifestyle. …I constantly felt like I was walking on eggshells.  The way I was treated really impacted my self-esteem in a negative way.^[[1]^]

   [1] Statutory Declaration, para [13].

   …

   Although I acknowledge that I have been convicted of domestic violence offences and compete take responsibility for hurting [Ms C] in the past, she was also a perpetrator of domestic violence.  As a man, if is very shameful to admit that you are a victim of violence, especially when it is from a woman.  I found it very difficult to disclose this information to other people… I felt like I had no choice but to stay and no one to turn to for support.[2]

   [2] Statutory Declaration, para [16].

   …

   [Ms C] would also control my finances and would often transfer money from my back account to hers.  [Ms C] would scream, kick, and hit me over money.  Whenever I was injured after an assault, she would also say things like, “If you go to the doctor for your injuries, I will make sure you are deported back to Fiji”.  The threat of being deported back to Fiji was constantly used by her to get what she wanted.  There was also a time where I would often be locked out of the home after coming home from work.  I had to use the car as a bedroom and I would spend many nights in there alone.[3]

   [3] Statutory Declaration, para [17].

   b.[Ms C] lied to the Department on 17 August 2015 about their relationship having broken down and it continued regardless;

   c.Approximately two weeks after the family intervention order was issued on 16 November 2015, [Ms C] falsely told him the order had been revoked and they resumed living together;

   d.[Ms C] showed him an application for variation of a family violence intervention order dated 17 March 2016, which he thought meant the order had been revoked;

   e.On 26 June 2016 [Ms C] hit and kicked him during an argument and he had chest pains; in his Statutory Declaration the applicant states:

   On 26 June 2016, I presented to the Emergency Department of [a] Hospital in the early afternoon after an altercation with [Ms C].  I was taken there via ambulance. ^[[4]^]

   [4] Statutory Declaration, para [26].

   f.On 21 September 2016 he applied for a family intervention order against [Ms C] – this was withdrawn before the hearing date of 7 March 2017 as [Ms C] and [a] priest came to his house and begged him not to proceed;

   g.On 27 September 2016, [Ms C] sent a threatening email to Ms [D], the applicant’s partner at the time, whom the applicant was living with, and was previously the partner of [Ms C]’s brother;

   h.Ms [D] reported [Ms C] to the police and took out a family violence intervention order against her;

   i.The applicant was arrested on 16 March 2017 as the result of [Ms C] falsely reporting him to police due to him being unable to provide her with money to pay for plane tickets to Fiji;

   j.The applicant has not been in contact with [Ms C] since 16 March 2017;

   k.He pleaded guilty in relation to his convictions on 10 May 2017 on the advice of his lawyer and to avoid spending further time in remand;

   l.The applicant’s brother and sister have received anonymous phone calls threatening to harm or kill the applicant if he returns to Fiji, as a result of his convictions on 10 May 2017;

   m.His brother reported the calls to police and was told that they could not do anything. His brother went to the phone provider who told him that they could not trace unknown calls.

   n.His sister and her family moved from [a town], NSW, to Queensland because of the threats.

2. The background facts set out at paragraph [35] hereof are well documented in the materials before the Tribunal – they are not controversial, and they are accepted by the Tribunal. 

3. The matters set out at paragraphs [36.a.] – [36.k.] will be considered below, the matters set out at paragraphs [36.l.] – [36.n.] will be analysed in the context of relevant country information.

   Current status of the applicant’s physical health

4. The background to the applicant’s physical health issues is set out at paragraph [7] hereof.  For the avoidance of doubt, the Tribunal cannot and does not make any findings in relation to the circumstances of the applicant’s injury which are presently the subject of litigation in [a] [Court]. 

5. The numerous medical reports submitted by the applicant confirm to the Tribunal’s satisfaction that, irrespective of the cause, he has been diagnosed with ‘[a condition]’ and is:[5]

   …in receipt of formal 24-hour care to support completion of routine personal and instrumental activities of daily living including personal care, toileting, meal preparation and medication management. [The applicant] was assessed as having development a strong dependency on formal care support.

   [5] Statutory Declaration, pp, 84 – 125.

6. On 2 September 2022, Ms [E], a physiotherapist working for [a] Clinic set out the rehabilitation and pain management services required for the applicant’s lower back. Ms [E] noted that the applicant:

   Currently suffers with severe chronic low back pain +/- left lower limb pain. He is currently confined to a wheelchair for mobility and is unable to stand/mobilise independently. He is receiving ongoing physiotherapy, rehabilitation and hydrotherapy in an attempt to regain left lower limb function and manage his pain levels. He is significantly affected by his pain, resulting in difficulty with activities of daily living, prolonged postures and low mood.

7. By letter dated 1 October 2022, International Health and Medical Services (IHMS) advised that the applicant has been receiving assistance [since] 8 August 2022.  The IHMS letter states:

   [A provider] manages a disability residence that [the applicant] resides in and has access to the following supports:

   •      1:1 support worker for 24 hours daily with an active 1:1 sleepover shift;

   •      Registered Nursing supports to manage, monitor and administer ‘Schedule 8’ medications;

   •      Holistic care support;

   •      Assistance with meals, grocery shopping and meal preparation;

   •      Assistance with personal grooming and hygiene;

   •      Assistance with mobility transfers and all activities of daily living;

   •      Laundry and cleaning assistance;

   •      Transportation to appointments.

8. The Tribunal understands that towards the end of November 2022, the Applicant was advised by his treating pain specialist from the [Hospital 1] that he may require a fifth surgical operation.

   Current status of the applicant’s mental health

9. The Tribunal has read and had regard to the report of Dr [F] dated 29 November 2022.  In that report Dr [F] outlines her discussions with the applicant, including his personal history in detail, which the Tribunal notes is materially consistent with his Statutory Declaration, written statements and supporting materials.  Of note for present purposes is Dr [F]’s conclusion which is in the following terms, at paragraph [63]:

   On the basis of my assessment, it is concluded that:

   • [the applicant]’s psychological symptoms meet the criteria for Major Depressive Disorder with anxious distress.

   • [the applicant] would require ongoing pharmacological and psychological treatment in the form of mindfulness training and cognitive-behavioural therapy. The treatment plan should be reviewed if he is permitted to return to the community.

   • [the applicant]’s major depressive disorder is in the moderate to severe range and would require professional treatment. If untreated, he would likely experience chronic psychosocial difficulties and an increase in risk of self-harm and suicide.

   Oral evidence received by the Tribunal

   The applicant – 7 February 2023

10. The applicant appeared before the Tribunal by telephone.  The Tribunal was conscious of the applicant’s medical limitations and the hearing was necessarily brief.  In summary:

    a.The applicant confirmed his age and personal details, stating that he was born in [a] Hospital and that his family were, at that time, living in Ba, Fiji.  The applicant stated that he is one of three siblings.

    b.The applicant completed his schooling in Fiji and studied ‘[a course]’ after leaving school.  He worked as [occupations] in Fiji and was in those occupations when he made the decision to come to Australia.

    c.The applicant is of Indo-Fijian ethnicity and of the Hindu faith.  His father was a [farmer] in Ba, Fiji, however in 2000 the family moved from Ba to [City 2], Fiji, as ‘the native people resumed the land’.

    d.The applicant’s first marriage was in [City 2] in 2004 and he has one daughter and one son from that marriage.  He separated from his first wife in 2009 and the pair were divorced in 2012.  By this time the applicant was living alone.

    e.The applicant stated that he first met Ms [Ms C] at or about this time; he got to know her when she was visiting family in Fiji.  [Ms C] had been married twice before and had two children.

    f.When asked what it was that he feared about returning to Fiji, the applicant stated that he was “worried about [Ms C]’s brother” particularly now that he was “now in a wheelchair”.  He stated that he was also worried about receiving treatment for his ongoing medical conditions.

    g.When asked why [Ms C] would be interested in pursuing him now, the applicant stated:

    She wants me to go back to Fiji.

    h.When pressed as to why this was the case, the applicant stated that [Ms C] brought him to Australia and is now “telling everybody that she can send [him] back to Fiji”.

    i.When asked why [Ms C] wants him to return to Fiji, the applicant stated:

    She is telling everybody that she could deport me to Fiji, that I was bad to her and a threat to her.  She wants me to go back so that her brother can give me the punishment.

    j.When asked whether the police in Fiji would help him, the applicant stated that they do not take allegations of this nature seriously.

11. During the hearing the applicant cooperated with the Tribunal, listening carefully to the questions asked of him and appeared willing to assist, however it was evident from the cadence of his speech and the manner of his expression that he was labouring under the difficulties of his medical conditions.

12. The Tribunal takes these matters into account in its analysis below.

    [Ms A]  – the applicant’s sister – 7 February 2023

13. [Ms A] appeared before the Tribunal via video link from Brisbane.  [Ms A] gave evidence as to the relationship between the applicant and [Ms C] which substantively corroborated the nature of the relationship between the applicant and [Ms C] set out at paragraphs [36.a.] to [34.k.].  [Ms A] also gave evidence in respect of matters since 2017, in summary she stated

    a.Since late 2017 she and her family have received regular, anonymous telephone calls.

    b.The callers were male and spoke in “Fiji Hindi”; they would say words to the effect of:

    We know where [the applicant] is, he is in prison, he will be killed or dead or in the wheelchair.

    c.She and her family have received 50 such telephone calls to October 2022.

    d.She no longer answers telephone calls from private or unknown numbers.

    [Mr B] – the applicant’s brother – 17 February 2023

14. [the applicant] appeared before the Tribunal via telephone from Fiji.  In summary he stated:

    a.In 2012 his brother married [Ms C] .  He stated that after about a year into the marriage the applicant informed him that “things were not going well”.  When pressed, [the applicant] stated that the applicant described his life as “hell”. 

    b.[the applicant] stated that the applicant told him that he was getting a “hard time” from [Ms C] that he was sometimes sleeping in the car, and that [Ms C] was taking his money.

    c.When asked by the Tribunal what he has observed since the separation of the applicant and [Ms C], [the applicant] stated that “they” were spreading rumours in Fiji and that he was receiving calls from “unknown numbers” threatening to “put [the applicant] in a wheelchair”.  When pressed by the Tribunal [the applicant] stated that the threat to put the applicant “in a wheelchair” was a colloquialism taken to mean “to severely injure him”.

    d.[The applicant] stated that he was still receiving such calls, and that the most recent he had received was from the first week of February in 2023.  When pressed, [the applicant] stated that the callers spoke “Fiji Indian”, often broke off in laughter and at times sounded drunk.  [The applicant] stated that different people spoke, some male, some female. He stated that they said words to the effect of:

    [The applicant] is in the jail; when he comes out we will make him dead, or we will make him in the wheelchair, or we will break his back.

    e.When further pressed, [the applicant] stated his belief that the callers were “the family of [Ms C]” because the calls started only after the breakdown of the relationship between the applicant and [Ms C].

    f.When asked to describe [Ms C]’s family, [the applicant] stated that they lived “about [number]km away” in an area known for drugs and in which a number of murders had been committed.

    g.[the applicant] stated his belief that Mr [C ]’s brothers were gang members.  When asked why he thought this, [the applicant] stated that he had worked [in] the local court in the area and he knew of their reputation as gang members from this work.

    h.When pressed. [the applicant] confirmed his belief that the threats were genuine, rather than mere nuisance. 

    Mr [G] – the applicant’s uncle

15. Mr [G] was unable to provide oral evidence to the Tribunal as he was out of communication, working as a [occupation].  His statutory declaration is relatively brief, and it is convenient to set out its material aspects in full (numbering omitted).

    In and around June 2013, I met [Ms C]  for the first time.  [the applicant] and [Ms C] visited Fiji to celebrate their marriage.

    I did not see [Ms C] again until I saw her and [the applicant] at a family wedding in and around April 2016. …

    In 2018, I was visited by my niece and [the applicant]’s [sister].  On this occasion [Ms A] had shared some details about [the applicant] and [Ms C]’s relationship.  [Ms A] told me that things were not good between [the applicant] and [Ms C] and that [the applicant] was being treated badly.  She said that [the applicant] would often have no food and have to sleep in his car.

    In and around April 2018, I came into contact with [Ms C] whilst I was shopping [in] Fiji.  I saw [Ms C] and she immediately recognised me.  She came to speak with me.  During our conversation [Ms C] said words to the effect of, “[the applicant] was in prison in Australia for doing the wrong think.  After prison he was deported to Fiji and he is now in prison in Fiji.  When [the applicant] gets out of prison, he will be killed.  At that time, I knew that [the applicant] was in a detention centre in Australia and not in a prison in Fiji but I did not disclose this to her.

    On or about 20 September 2022, I again bumped into [Ms C] whilst shopping.  I interacted with her at a shop and save supermarket in [City 2] Town.  When [Ms C] mentioned [the applicant], she seemed to get very angry.  [Ms C] said to me words to the effect of, “[the applicant] is at [a] Prison in Fiji and has been there since 2018.  Next year, [the applicant] will get out of prison and when he does, he will be killed.  I reported [the applicant] to Police in Australia and made sure he would go to jail”.  I replied, “Enough is enough, stop lying about [the applicant].  I know where [the applicant] is now.  I will call [his sister] and tell her everything that you have said”.

    Country information:

16. The applicant claims to fear violence at the hands of his ex-wife or her family or at their direction if he is returned to Fiji.  It is convenient to outline the relevant country information available to the Tribunal as regards the general situation in Fiji, as well as the specific cultural mores of the Indo-Fijian community, before considering the evidence.

    General

17. According to the Executive Summary of the United States Department of State’s 2021 Country Reports on Human Rights Practices: Fiji:

    Fiji is a constitutional republic. In 2018 the country held general elections, which international observers deemed free, transparent, and credible. Josaia Voreqe (Frank) Bainimarama’s Fiji First party won 27 of 51 seats in parliament, and he began a second four-year term as prime minister.^[[6]^]

    [6] The Tribunal notes the transition to a new government under Prime Minister Sitiveni Rabuka following a general election on 14 December 2022.

    The Fiji Police Force maintains internal security. The Republic of Fiji Military Force is responsible for external security but can be assigned some domestic security responsibilities in specific circumstances. Although the police report to the Ministry of Defense, National Security, and Policing, the military does not. It is subordinate only to the president as commander in chief. Within the limits of the law, civilian authorities maintained effective control over the security forces. There were credible reports that members of the security forces committed numerous abuses.

    Significant human rights issues included credible reports of: cruel, inhuman, or degrading treatment by government agents; serious restrictions on free expression and media, including censorship; substantial interference with the freedom of peaceful assembly; and trafficking in persons.

    The government investigated some security force officials who committed abuses and prosecuted or punished officials who committed abuses elsewhere in the government; however, impunity was a problem in cases with political implications.

    As to respect by the authorities for human rights, the United States Department of State records:

    There were no reports of such killings by or on behalf of the government during the year.

    …

    There were no reports of disappearances by or on behalf of government authorities.

    …

    The constitution and law prohibit torture, forced medical treatment, and degrading treatment or punishment.  The Public Order Act (POA, see section 1.d.), however, authorizes the government to use whatever force it deems necessary to enforce public order. There were reports security forces abused persons.

    The police Internal Affairs Unit is responsible for investigating complaints of police misconduct. As of December, the Office of the Director of Public Prosecutions charged 56 officers with police misconduct.

    Court proceedings into an alleged assault on two suspects by eight police officers in Tavua in March 2020 continued as of December.

    On October 8, the high court extended bail for four police officers charged for assaulting a 32-year-old man and throwing him off a bridge in Naqia Tailevu in April 2020. The man allegedly broke COVID-19 curfew rules.

    Two inmates alleged corrections officers assaulted and took nude photographs of them during a strip search in 2019. Investigations were ongoing as of December.

    …

    On March 3, the Office of the Director of Public Prosecutions charged 10 corrections officers for an alleged 2019 assault against a serving prisoner who later committed suicide.

    Impunity remained a problem in the security forces in some politically connected cases. The constitution and POA explicitly provide immunity from prosecution for members of the security forces for any deaths or injuries arising from the use of force deemed necessary to enforce public order. The constitution also provides immunity for the president, prime minister, members of the cabinet, and security forces for actions taken related to the 2000 suppression of a mutiny at military headquarters, the 2006 coup, and the 2009 abrogation of the 1997 constitution.

    There is no independent oversight mechanism for the security forces. The law requires the consent or approval of the police commissioner to begin any investigation into or take any disciplinary action against a police officer. Authorized investigations were usually conducted by the Internal Affairs Unit, which reports to the police commissioner, who decides the outcome of the complaint. If the commissioner decides there is a criminal case, it is referred to the public prosecutor for further action. Information regarding the number of complaints, investigatory findings, and disciplinary action taken is not publicly available.

    Slow judicial processes contribute to an impression of impunity, especially in police abuse cases. For example, trials had yet to conclude for the alleged 2019 police beating of Pelasio Tamanikoula or the alleged 2019 police beating of prisoner Manasa Rayasidamu. The three officers accused in the Rayasidamu case were suspended from duty and charged with causing grievous harm. Other unresolved cases dated back as far as 2017.

    [T]he constitution provides that detained persons be charged and brought to court within 48 hours of arrest or as soon as practicable thereafter, and that right was generally respected. Police officers may arrest persons without a warrant.

    …

    The constitution prohibits arbitrary arrest and detention and provides for the right of any person to challenge the lawfulness of his or her arrest or detention in court, unless the person is detained under the POA. The government generally observed these requirements. The law details procedures for lawful arrest. Except for arrests under the POA, prisoners must be charged within 24 hours of arrest or released. Under the POA, the minister of defense and national security must authorize detention without charge for a period exceeding 48 hours and may approve extending detention for up to 14 days.

    The POA allows authorities to suspend normal due process protections where “necessary to enforce public order.” The POA explicitly disallows any judicial recourse (including habeas corpus) for harms suffered when the government is acting under its provisions. There are also provisions that allow for warrantless searches, restriction of movement (specifically international travel, immigration, or emigration), and permit requirements for political meetings. Authorities also used the POA’s wide provisions to restrict freedom of expression and of association.

    For example, in July authorities arrested nine persons, including opposition members of parliament and other prominent political figures, under the POA for social media criticisms of a land law amendment. (See also section 2.a., Freedom of Expression.)

1. Because the applicant alleges a risk of harm at the hands of his ex-wife, it is necessary to consider the country information concerning family violence in Fiji and the response of the authorities to it.  As the Department of State notes:

   The law defines domestic violence as a specific offense. Police practice a “no-drop” policy, whereby they are required to pursue investigations of domestic violence cases even if a victim later withdraws the accusation. Nonetheless, women’s organizations reported police did not consistently follow this policy. Courts also dismissed some cases of domestic abuse and incest or gave perpetrators light sentences. Traditional and religious practices of reconciliation between aggrieved parties in both indigenous and Indo-Fijian communities were sometimes utilized to mitigate sentences for domestic violence. In some cases, authorities released offenders without a conviction on condition they maintained good behavior.

   The NGOs Fiji Women’s Crisis Center and Pacific Women supported a wide range of educational, social support, and counseling measures for survivors of gender-based violence and advocated for legal reforms to strengthen protections for women and girls.

   NGOs reported a “concerning increase” in gender-based violence since the pandemic began in 2020. In May alone, domestic violence cases were 60 percent higher than in May 2020. Several of the cases were classified as severe forms of domestic violence, such as the attack on a 58-year-old woman whose husband cut off her arm with a machete at the fast-food restaurant where she worked. Civil society and NGOs maintained that increased depression among women, especially those unable to access mental health-care treatment during lockdowns, combined with life in patriarchal, stressed, and locked-down households, presented a potent combination for harm for women and girls.

2. The country information, perhaps predictably, focuses on family violence against women (which is pervasive). The Tribunal has been unable to locate (and the applicant has not submitted) any country information discussing the response of the police and the courts to family violence against men. This is perhaps highlighted indirectly by the country information submitted by the applicant. None of it is relevant to the central point of the application — that the appellant claims to be at risk of harm at the hands of his ex-wife or her family and lacks state protection.

3. The Tribunal has also read and had regard to the following country information

   a.Articles on police brutality:

   •“Rights Commission Looking into Fiji Police Brutality Claim”, Radio New Zealand, 28 April 2020;[7]

   [7] See: < Police Officers Charged in Fiji – Report”, Radio New Zealand, 7 July 2020;[8]

   [8] See: < Police Brutality Investigations Underway in Fiji”, Radio New Zealand, 14 May 2020;[9]

   [9] See: < Act Now Calls on Authorities to Investigate Disturbing Viral Video”, Fiji Act Now, 15 December 2020;[10]

   [10] See: < Anthony, “Fiji Death in Custody Reignites Debate Over Police Brutality” The Guardian, 10 November 2020;[11]

   [11] See: < Anthony, “Investigations into Police and Prison Violence Blocked by Fiji Authorities, Whistleblowers Say” The Guardian, 30 August 2020;[12]

   [12] See: < Deo “Person Who Posted about Alleged Police Brutality is not Forthcoming – Raj”, Fiji Village, 31 December 2020;[13]

   [13] See: < McDonald “A Spotlight on Police Brutality in Fiji” The Diplomat, 30 November 2020.[14]

   [14] See: < about domestic violence:

   •“Meeting Told Men Need to Step Up to Condemn Violence Against Women” Radio New Zealand, 17 September 2019;[15]

   [15] See: < Links Between Domestic Violence and Homicide”, Fiji Women’s Crisis Centre, undated;[16]

   [16] See: < Has One of the World’s Highest Domestic Violence Data: Minister” Xinhua, 29 June 2018;[17]

   [17] See: < Fiji, Mindset is Changing Amid Work to Prevent Violence Against Women”, World Council of Churches, 6 August 2020;[18]

   [18] See: < Records Increase in Domestic Violence Cases During Covid-19 Lockdowns” Radio New Zealand, 5 May 2020;[19]

   [19] See: < Nasiko “Violence Against Women, Men ‘Drastically Different’”, The Fiji Times, 2 July 2019.[20]

   [20] See: < about other police failings, including inaction and corruption:

   •J Benedict “Fiji’s Review at the Human Rights Council Highlights Lack of Progress on Civic Freedoms”, 29 November 2019;[21]

   •D Deo “Man Claims of Police Inaction After a Break-in at His House in Davuilevu Housing”, Fiji Village, 15 July 2020;[22]

   •D Deo “Former Senior Police Officer Sentenced on Bribery Charges”, Fiji Village, 17 October 2016;[23]

   •R Rainima “Police officers and businessman front court for bribery”, FBC News, 3 February 2016;[24]

   •A Vakasukawaqa “Inaction by Police Shows Weakness”, The Fiji Times, 3 October 2019;[25]

   •R Pratap “Fiji Police suspends five officers pending two investigations”, FBC News, (11 November 2020);[26]

   •“Beating Justice: How Fiji’s Security Forces Get Away with Torture” Amnesty International, 4 December 2016;[27]

   •S Chanel “Fiji Warned on Failings at Home After Winning UN Human Rights Council Role”, The Guardian, 19 January 2021.[28]

   [21] See: < See: < See: < See: < See: < See: < See: < See: <>

   The Tribunal accepts that these articles paint a picture of a police force which sometimes struggles with resources, poor training, entrenched traditional views and issues of corruption and impunity.  The articles also, however, point to efforts being made to address these issues, particularly with regard to family violence against women.

   Indo-Fijian history and traditional codes of honour

4. The World Directory of Minorities and Indigenous Peoples provides the following background in respect of Indo-Fijians:[29]

   [29] See: < the 1986 Census the ethnic Fijian population was 329,000 (46 per cent of the total) and the Indo-Fijian population was 348,000 (48 per cent), maintaining the numerical dominance of the Indo-Fijian population that was established after the Second World War. However, by 1996, after extensive emigration, the Indo-Fijian population had fallen absolutely and was just 38 per cent of the total whereas the Fijian population had grown to 45 per cent. The 2000 and 2006 coups have seen ongoing emigration of skilled trades and professional personnel, most of whom are Indo-Fijian, to Australia, New Zealand, Canada and the United States. According to the latest census in 2007, while the ethnic Fijian population increased to 475,739 (56.8 per cent of the total), the Indo-Fijian population was 313,798 (37 per cent).

   Indo- Fijians comprise the second largest ethnic group and are culturally and economically diverse. More than 90 per cent are descendants of indentured labourers (Girmityas) and the remainder are descendants of free migrants. The majority are Hindu, and a minority are Muslim or Christian. A small number of Indo-Fijians can be defined as wealthy or engaged in business enterprises, but the majority of Indo-Fijians are workers and peasant farmers, and also include the poorest of the poor in the country. Indo-Fijian tenant farmers rely on leased agricultural land and since 1999 many of these leases have not been renewed, or are on the point of expiring, resulting in the lease-holders being displaced. As a result, Indo-Fijians are among the largest category of landless people in Fiji. This is a source of anxiety and hardship as they often have no other means of subsistence, and feel a real sense of political marginalization. As a group there has been a high degree of anxiety since the coups of 1987 and 2000; particularly after the events of 2000, in which many Indo-Fijians were beaten and raped, and their property looted and burnt, the community has been traumatized.

   Historical context

   Indians were first introduced to Fiji in the 1880s, and between 1879 and 1916 over 60,000 indentured labourers came from various parts of India to work in the cane plantations. Many other Pacific islanders came at the same time, but most returned. The Indian migrants remained, primarily on the two main islands of Viti Levu and Vanua Levu.

   By the 1940s, Indo-Fijians made up the majority of the population, outnumbering indigenous Fijians. It was only in the 1980s and 1990s that this situation was reversed. A key factor in their diminishing numbers in recent decades has been the country’s continued instability, particularly its succession of coups, and the occasional flaring of nationalist sentiment against them. This is illustrated by the dramatic increase in migration: while between 1978 and 1986, just over 20,700 Fijians left the country at an annual rate of 2,300, in the ensuing decade (1987-1996) the rate more than doubled to 5,005 every year. The overwhelming majority, roughly 90 percent, of these departing citizens were Indo-Fijian.

   Current issues

   Indo-Fijians remain marginalized in most spheres, though they have regained substantial economic power, while the more prominent Fijian nationalist movements have lost some influence. Nonetheless the position of Indo-Fijians in Fiji remains problematic. Indo-Fijians remain in many respects marginal to the national political economy despite their relative success in business and trade. Critically, they remain landless and leases continue to be allowed to expire. Despite business success, they have been unable to achieve a similar status in the bureaucracy. At key moments of instability, such as 2005–06, they have been vulnerable to robberies, attacks and desecration of Hindu temples.

   Nevertheless, research by MRG and others in recent years suggests a widespread perception that the situation has improved since 2006, with better inter-ethnic relations, and that policy changes such as the designation of a common name for all Fiji citizens, and efforts to find land for farming and other activities and to improve law and order, were seen to be positive contributions to inter-ethnic relations.

5. Of particular relevance to the matters before the Tribunal are the social and cultural mores of Indo-Fijians in respect of intimate relationships.  In report prepared for the Immigration and Protection Tribunal of New Zealand addressing:

   …the cultural practices amongst the Indo-Fijian Hindu community in relation to sexual and marital relationships and the capacity of the Fijian police to respond effectively to emergencies or calls for help,

   Distinguished Professor Steven Ratuva of the University of Canterbury, New Zealand.[30] notes the following:

   [30] Dr Ratuva, Professor of Anthropology and Sociology and head of the Macmillan Brown Centre for Pacific Studies at the University of Canterbury. Dr Ratuva states that he has carried out research and written extensively about Fiji in the areas of politics, culture, ethnic relations, religion, affirmative action and development. He also states that he has quite comprehensive knowledge of the Indo-Fijian culture and communities having done research and written about it, as well as worked with the community for decades. In 2016 he was commissioned by the Fijian government to carry out a major review of the sugar industry master award between farmers and millers, a project funded by the EU, that involved a comprehensive survey and analysis of the sugar cane farming community and his visiting isolated farms, including in the appellant’s home district, and talking about their issues and challenges; see generally: < HA (Fiji) [2019] NZIPT 801634.

   4.3 Since the 1890s when they were first settled in Fiji, lndo-Fijians have largely lived around the cane field, firstly as labourers under the British and later as independent farmers after independence. Life in the sugar plantations often revolves around individual family farms engaging with each other through community networks. Life is hard and laborious ...

   4.4 The isolation, ethnic politics, laborious farm life and expiration of leases has contributed to the stress. The Taukei own most of the land which are leased to lndo-Fijian farmers. Many leases have expired and a large number of lndo-Fijians have migrated to towns and cities as well as overseas to seek better life. The high stress has in some ways contributed to suicides, conflicts and murder within the cane farming communities.

   5.0 The morality of sexual relationships amongst lndo-Fijians

   5.1 Because of their relative isolation from each other, finding partners for marriage can be a challenge and once a relationship is forged, it is guarded quite jealously. Once a relationship is established, relatives would rally around in anticipation of lifelong bonding between not just the two individuals, but also the family. The entire community is involved.

   5.2 Traditionally, Hindu marriages in Fiji are arranged between the parents but increasingly, this is changing in favour of romance-based matrimonial relationships. Sometimes it is a mixture of both, where romantic relationships can be legitimized through parents' intervention to formally "arrange" the marriage.

   5.3 While sexuality is celebrated in ancient Hindu art and literature, sex before marriage is strictly forbidden amongst conservative Hindu believers. Amongst many Indo-Fijian Hindus, any sexual relations before marriage must end up in marriage as a way of providing legitimacy to the sexual act. Failure to do so will bring about dishonour to the girl and her family. The men involved in the sexual relations often become targeted because of perception that they are the cause of the dishonour. Scholars have in the past documented incidences of sexual jealousy and suicide on the sugar plantations.

   5.4 Within the Fiji Hindu community, women are considered of lower social status and the woman's parents normally pay the dowry to the man's family. This means committing so much of a family's life investment to secure a good husband and future. This high expectation can turn nasty if things do not go according to plan.

   5.5 To Indo-Fijian farmers, marriage is a way of connecting isolated families, whose lives revolve around the daily chores of backbreaking cane farming. It is also a means of building community solidarity as well as a way of sharing scarce labour on the farms. Work on the farms is not mechanized and relies primarily on manual labour. Marriage is a way of ensuring availability of labour.

   5.6 Poverty on the sugar plantations is prevalent and this causes a lot of stress which in recent years has seen a lot of family violence and murders, as well as migration (internal and overseas) out of the cane fields. Events such as land disputes or broken relationships have the potential to create deep and long-lasting tension and conflict. [A broken relationship] would no doubt be a catalyst for tension and instability in the community.

   5.7 Because he is based overseas, [a busband] would be seen as a potential source of remittance for the girl's family. Overseas remittance is one of the largest sources of income for Fijian families and a major factor in poverty alleviation. Having a relative working overseas provides a source of economic security for the family. In fact many encourage members of their families to migrate in order to provide the badly needed finance for their daily living.

   (Citations omitted.)

6. According to Dr Ratuva, the availability of police protection against threats and/or any actual attempt to seriously harm or kill him is unlikely.  This is because, since the 2006 coup, the effectiveness and professionalism of the police as a security and law enforcement agency has been greatly compromised by the militarisation of the institution.  In addition, the Fiji police do not have the resources or technical and professional capacity to respond effectively to emergency calls:

   6.1 ... the Fiji Police is a largely inefficient force which has not been able to effectively address the ever-increasing crime rate as well as respond quickly to emergency calls. They have been continually criticized for their inaction and unprofessional conduct as law enforcers. Part of the reason has to do with the way it has been militarized since the 2006 coup and the anti-Indian bias of many indigenous Taukei police officers, who make up the majority of the police personnel.

   6.2 Since taking over power by force on 6 December 2006, the military imposed a state of emergency and gave itself power to suppress freedom of expression. ... The military imposed control over the police force and used it to serve its "security" interests.

   …

   6.18 Because of the political control over the police, its professional role as law enforcement agency and protector of innocent citizens has eroded dramatically. This is evident in its inability to respond effectively to the increasing crime rate in the country, which has caused "serious concerns".

   6.19 In a 2019 report, the US State Department's assessment states that "Crime is a continuing problem in Fiji, and can have a major impact on the work and life of the community." The same report makes the assertion that ''The Fiji Police Force is ... under-resourced." It added that: "Police generally do not have vehicles to respond to calls, and are unlikely to arrive in time to disrupt a crime in progress."

   6.20 The rise in violence has also been due to increase in cocaine and meth users which fuel crime and this has stretched the capacity of the police to protect its citizens properly. This shortcoming and cases of police brutality was even admitted by the Minister for National Security and Foreign Affairs. Complaints about police brutality and inability to help citizens is a common occurrence in Fiji. This includes attacks on innocent people such as a case of a rugby player who died, prisoners, and many others. Some complainants have unnecessarily become suspects and subsequently victimized by the police.

   …

   7.2 The police may not be in a position to protect [the appellant] because of the inability of the police force to respond effectively to emergencies or to calls for help due to its lack of professional capacity as a result of the control by the military, lack of resources and general complacency. They often respond only after a crime is committed, not before. They are more reactive than preventive in their approach.

   (Citations omitted.)

   (Tribunal’s emphasis.)

   Analysis:

1. The Tribunal has had regard to the President's Directions and in particular the direction that members are to take all reasonable steps to complete papers allocated to them as quickly as possible, and that generally in reviewing a decision to refuse the grant of a protection visa members should address only those elements of the criteria for a protection visa that are necessary to resolve the application on review.

2. In assessing the applicant’s circumstances the Tribunal is mindful of the Guidelines on the Assessment of Credibility (July 2015) issued by the Administrative Appeals Tribunal which note:

   In relation to protection visa matters, if the tribunal is not able to make a confident finding that an applicant’s account is not credible, it must make its assessment on the basis that it is possible, although not certain, that the applicant’s account of past events is true.[31]

   [31] Guidelines on the Assessment of Credibility (July 2015) Available at es-on-Assessment-of-Credibility.pdf

3. However, this should not lead to “an uncritical acceptance of any and all allegations made by” the applicant.[32]

   [32] Harjit Singh Randhawa v. The Minister for Immigration Local Government and Ethnic Affairs, No. NG994 of 1993, Australia: Federal Court, 11 August 1994.

4. The applicant claims to fear, inter alia, violence at the hands of his ex-wife [Ms C] and/or persons associated with her.  The context of these claims is that both the applicant and [Ms C] are members of the Indo-Fijian community, both with extended family in Fiji.

5. In respect of the nature of their relationship the applicant claims that [Ms C] was verbally and physically abusive to him, belittled and humiliated him, and psychologically controlled him.  He claims that she manipulated him, including for financial gain, by threatening to have him sent back to Fiji or put in jail.

6. In support of these claims the applicant cites the following evidence:

   a.the Clinical notes of [a] Hospital as recorded by [a named doctor] notes that on 26 June 2016, the Applicant presented to the emergency department at 1:43PM which noted:

   ·         Stayed with wife last night

   ·         This morning while he was in bathroom she started shouting at him

   ·         She pushed him against the wall and he hit the back of his head against the wall and then fell to the ground

   ·         ?LOC

   ·         Wife kicked him in the right side of abdomen

   ·         Developed shortness and started coughing and then vomited

   ·         Then was walking around the house, felt disorientated

   ·         AV and police called

   ·         Reporting neck pain in neck and right shoulder, reporting 7/10 pain

   b.On 9 September 2016, the Applicant deposed by way of statutory declaration:

   I feel that my wife engaged in family violence against me. She was verbally and physically abusive during our relationship. She exerted psychological control over me and would allow me into our home, denying me even my own set of keys. She has belittled and humiliated me throughout the last months of our relationship and also was physically violent towards me. I intent to seek an intervention order against her in the coming weeks as she continues to call me and harras me. The police have told me this is the only way I can prevent her from doing so. When [Ms C] was unhappy with me, she would threaten to cease supporting me in respect of my partner visa application and to have me sent back to Fiji. This conduct by her put me in a near constate of heightened anxiety and stress. I felt that I could not relax around her. She has lied to police and to members of our family and has spread untruths about me. When she wanted money or sex, she has manipulated me many times knowing that I cared about her very much and that I wanted our marriage to work.

   c.A letter by [a named] Clinical Psychologist [dated] 13 January 2017 which notes:

   [The applicant] has also said that his ex wife has inflicted injuries on him and he doesn’t know what he should do. He says “People will not believe me, a woman hitting a man, I’m very embarrassed””.

   [[The psychologist] also stated that she was going to] advise [the applicant] of services in which he can attend as he is a victim of Family Violence.

   (Tribunal’s emphasis.)

   d.A progress note made by IHMS Counsellor [dated] 22 September 2017 which notes that the applicant had expressed that:

   It was not long into the marriage that her behaviour changed dramatically and was consuming alcohol to the extent of alcoholism. She would spend all his payroll and wouldn’t let him in the house, so he was often sleeping in his vehicle. He told his wife that he would leave and her response was quote “you do that and I will call the police and say you bashed me”.

7. The applicant also cites an email sent by [Ms C] on 26 September 2016 to a woman with whom the applicant had entered an intimate relationship.  That email states (uncorrected):

   Hi u fucking bitch

   U shud noe by now not to fuck around with me.what u doing with my brother. you will suffer you motherfucker. the police are my friends i do anything and the police will not to do anything to stop me. you bitch.

   whatever you or [the applicant] will do you cant get your things back your shit is here at my place i took it and u cant do fucking all about it.. i nhave everything of yours [the applicant] is in the street now and so you wull be soon with your two bitches. i hope you liked what I sent you the other day at 2in the morning you think im not going to do anything. [the applicant] will never get his car back and you also will never get your car back the police know me and not you to cunts. i have the key to your car but u think im crazy to give it to you. where my brother is you will all pay.you desevered to get hit you should be killed motherfucker. remeber i said to u i will send [the applicant] back to fiji or jail and i will do it.you are unworthy piece of shit my brother doesnt belong in jail.stay away from my brother you slut. just think this is my game and the police are my people not yours. I will make you life so much fucking hell. just watch.be careful also where your two bitch daughters go i will be after them.i have eyes everywhere your a bitch like your mother.

8. The Tribunal accepts the June 2016 clinical notes of [a] Hospital as a contemporaneous record of the matters referred to therein; it also notes the consistency of the applicant’s claims over time as to the nature of his relationship with [Ms C] as evidenced by his statutory declaration of 9 September 2016, his advice to [a named psychologist] of January 2017, his advice to the IHMS of September 2017 and his more recent evidence to the Tribunal as set out above as well as that of his family members.

9. The preponderance and consistency of this evidence is sufficient to persuade the Tribunal of the truth of these matters, specifically that the applicant and [Ms C]’s relationship was toxic,[33] and included (for present purposes) the physical and psychological abuse of the applicant by [Ms C]. It is against this background, and the in context of the applicant’s and [Ms C]’s ethnicity, that the applicant’s fear of returning to Fiji must be assessed.

   [33] See: <>

   The applicant cites the evidence of his sister, brother and uncle as indicating a continued intention on the part of [Ms C] to inflict harm on him or to have him killed; specifically, their claims that they are subject to ongoing harassment by [Ms C] or at her behest, and that as recently as September 2022 [Ms C] had confronted the applicant’s uncle in a public setting and threatened to kill the applicant.

10. These claims, however, remain uncorroborated and it is impossible for the Tribunal to be satisfied in respect of them on balance of probabilities.  The Tribunal therefore accepts that there may be doubt about the veracity of this aspect of the applicant’s claims.

11. The process of fact finding in circumstances where there may be doubt was discussed by the Federal Court in Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719 (Sackville J) at [62] to [64]:

    62 In this context, it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. When the [Refugee Review Tribunal (‘RRT’)] is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a "real substantial basis" for the applicant's claimed fear of persecution. Similarly, if the non-occurrence of an event is important to an applicant's case (for example, the withdrawal of a threat to the applicant) the possibility that the event did not occur may need to be considered by the decision-maker even though the latter considers the disputed event probably did occur.

    63 Although the "What if I am wrong?" terminology has gained currency, I think, with respect, that it is more accurate to see the requirement discussed in [Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259] and [Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559] as simply an aspect of the obligation to apply correctly the principles for determining whether an applicant has a "well-founded fear of being persecuted" for a Convention reason. The reasonable speculation in which the decision-maker must engage may require him or her to take account of the chance that past events might have occurred, even though the decision-maker thinks that they probably did not. In the language of s 476(1)(e) of the Migration Act, a failure to do so may constitute "an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found".

    64 In my view, there is no reason in principle, and nothing in the reasoning of the High Court, supporting a general rule that the RRT must express findings as to whether alleged past events actually occurred in a manner that makes explicit its degree of conviction or confidence that the findings are correct. In Guo itself, the findings were not expressed this way, yet the joint judgment considered it was enough that the RRT appeared to have no doubt that the probability of error was insignificant. Moreover, had the Court intended to impose such an extraordinary burden on the RRT, it might have been expected to say so.

    [Emphasis in original]

12. While the Tribunal has some doubts about the veracity of the applicant’s claims regarding the ongoing harassment of him and his family by [Ms C] or others at her behest, the surrounding evidence of the history of their toxic relationship, and the aggressive expression of [Ms C]’s state of mind in her email of September 2016 are of significant concern to the Tribunal. 

13. Threats to physically harm or kill someone are easily made and not always acted upon.  In assessing these threats, the Tribunal has had regard to the country information cited, particularly that of Dr Ratuva, as to the strict cultural codes of behaviour in Indo-Fijian communities, which notes:

    Poverty on the sugar plantations is prevalent and this causes a lot of stress which in recent years has seen a lot of family violence and murders….  Events such as land disputes or broken relationships have the potential to create deep and long-lasting tension and conflict. [A broken relationship] would no doubt be a catalyst for tension and instability in the community.

14. The Tribunal infers from this country information, and that cited above, that matters of family honour and unmet expectations remain significant motives for members of the Indo-Fijian community in Fiji, and that such matters are of a “deep and long-lasting” nature.  Based upon this country information the Tribunal accepts the possibility that the ongoing threats to harm or kill the applicant have continued in the manner described in evidence.  Considering the country information, the Tribunal cannot dismiss such threats to harm the applicant as remote or speculative.

15. Overall, in light of the cumulative effect of these matters, the Tribunal considers that if he is returned to Fiji now or in the reasonably foreseeable future, there is a real risk that the applicant will experience acts of violence or intimidation.  Nor, according to Dr Ratuva, would the applicant likely be able to obtain police protection against the threats and/or any actual attempt to seriously harm or kill him.  This is because, since the 2006 coup, the effectiveness and professionalism of the police as a security and law enforcement agency has been greatly compromised by the militarisation of the institution.  In addition, the Fiji police do not have the resources or technical and professional capacity to respond effectively to emergency calls.

16. While the Tribunal does not consider that there is a real chance that the applicant will suffer persecution for the reasons he claims,[34] for the reasons set out above the Tribunal does accept that there are substantial grounds for believing that, should the applicant be removed from Australia to Fiji, there is a real risk that he will suffer significant harm.  

    [34] The applicant made no claim that the threats of violence from [Ms C] would result from one or more than one of the five reasons enumerated in s.5J(1)(a) of the Act namely race, religion, nationality, political opinion, or membership of a particular social group.  Without a link between one of the characteristics of an individual enumerated in in s.5J(1)(a) and the persecution they fear, a nexus between the persecution of that individual and the Act is simply not established.

    Conclusion: Refugee Criterion

17. Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion, or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.

    Conclusion: Complementary Protection

18. Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji that there is a real risk that he will suffer significant harm.

    Overall conclusion:

19. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

20. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

    decision

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

    Damian Creedon
    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.

    …