2208222 (Refugee)

2208222 (Refugee) [2022] AATA 4421 (7 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2208222
COUNTRY OF REFERENCE:                   Fiji
MEMBER:David McCulloch
DATE:7 September 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 07 September 2022 at 4:04pm
CATCHWORDS
REFUGEE – Protection visa – Fiji – sexuality –homosexual – bisexual – applicant was having a relationship with a woman for four years – limited evidence of the applicant in relation to being involved in same-sex relationships – inconsistent evidence – credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 438, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 1 June 2022 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Fiji, applied for the visa on 5 May 2022. The delegate refused to grant the visa.
The applicant appeared before the Tribunal on 6 September 2022 at 9.30am to give evidence and present arguments. The applicant communicated in English.
The applicant is in immigration detention.
Criteria for a protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The Tribunal has before it the DFAT Country Information Report – Fiji, 20 May 2022, a copy of which was provided to the applicant in advance of the hearing.
CONSIDERATION OF Claims and evidence
The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The following migration history of the applicant is extracted from the delegate’s decision record:

Date Event

14/01/2015 Tourist Stream (OFFSHORE) (FA 600) visa refusal

03/11/2015 Temporary Work (Short Stay Activity) (Class GA) visa refusal

25/02/2016 FA 600 visa refusal

11/11/2016 Temporary Work (Short Stay Specialist) visa (GA 400) grant

[date]/12/2016 Arrival in Australia

01/03/2017 Tourist Stream (Onshore) (Web)(FA 600)

01/03/2017 Bridging visa A (BVA, WA 010) grant

02/03/2017 GA 400 visa ceases; BVA ceases; Tourist (FA 600) visa grant

19/04/2017 FA 600 visa ceases

20/04/2017 Applicant becomes Unlawful non citizen (UNC)

The following information is apparent from the application for protection forms. The applicant was born on [date] in [City 1], Fiji. The applicant is a Pentecostal of Fijian ethnicity who speaks, reads and writes both Fijian and English. The applicant has never married. The applicant has one brother who is an Australian citizen. He is not in contact with other relatives outside Australia. The applicant lived at one address in Fiji from birth until December 2016. The applicant attended primary school and high school in Fiji from 2002 until 2014. He also attended [a] University, [from] January 2015 until he graduated in December 2015. The applicant was employed as a [worker] in [a suburb], Australia from January 2018 to 2019 and from 2021 to 2022. At the time of application, the applicant was unemployed.
In the application forms, the applicant provided the following responses to the protection claim questions (not corrected for spelling or grammar):
Q: Provide reasons why this applicant left that country or those countries:
A: The reason I had decided to leave Fiji was not by choice but it was something that I've always wanted to do to protect myself and my future and having to leave a normal life in being true to myself and who I really wanted to be. Growing up in [a] little [village], my father not only was serving in the Fiji Military Force but he was also the head chief of the village of where we came from . As the youngest of two brothers,I have always been looked at to be the future of the family as my older brother had moved overseas to be with his family. It was never that easy having to grow up in a village, and your father being the village chief. Being a son of a chief came with a lot of responsibility, and a certain image that I had to hold. Growing up back in the village was one of the hardest moments of my life and I wouldn't have wished it upon any other kid. I faced many abuse as a child an as I entered my youth everything was dark. My childhood was not one that I would have wanted or choose to have. I was molested at the age of [age] by my very own uncle, it was the morning of [a day in] 2002, early hours of the morning after he had came back from drinking. A day I would never forget, as it was when things changed for me, it did not only left a bruise in me but something that will be with me forever, it took my childhood away from me. Growing up, I knew I was different, but I could not explain why. Most of my male peers were interested in rugby, fishing, and girls. I was not. At a young age, I realized I was attracted to the same sex, but acting on that did not come till adulthood. Growing up in a military household with an alcoholic & a abusive father who would expect nothing but the best and was seen as a religious man and respected leader in the village by day. I was surrounded by images, values , and rules that contradicted what I felt inside. This was confusing and also made me feel that expressing what was inside me was a great risk. At age [age], I left home to attend an all-boys boarding school. This saved me but also drove me deeper into the darkness of being in the closet. It also opened a door to a darker side; I was so terrified of being outed that I sometimes acted as the loudest bully toward others suspected of being gay. Every day I wore a green mask to hide who I really was. This inner battle became a daily struggle: Deep down, I knew that everything about the way in which I presented my identity was a lie. For most of my childhood I had to live in fear, of a life I couldn't have because of what my father did.
Q: Did this applicant experience harm in that country or those countries?
A: Yes
Q: Give details including: the type of harm this applicant experienced; the person/people responsible for the harm; why they harmed this applicant.
A: Growing up with an abusive father, my childhood was never the same. The pain and memory as a child I had to live with, reflects if this would be my life forever. Upon finishing my boarding school, I had returned home thinking it was about time to tell my parents of who I really was. I knew it was never an easy conversation but I felt like i couldn't carry on as it was killing me inside. I knew it would be the right time as dad was serving in [Country 1] and I would have mum give him the news over a video call. I knew he was thousands of miles away and wouldn't be able to have hurt me, when mum told him I was coming out as BI SEXUAL. I vividly remember his anger over the call, calling me names and what an embarrassment I was. And that he would have killed me if he would have been beside me. He than had told my mum to remove me from home as he no longer wanted me in his house and that I was an embarrassment to him and to the family name. That very evening a few of the village boys had appeared at our door steps, who was led by fathers brother, the very man who molested me when I was [age]. They were sent by my father to make sure to remove me from the house. They had carried me out and verbally abused me out the house as my mother watched, helplessly. I was beaten badly, as I thought that would have been my last day. As they were beating, kicking me on the ground and standing on my neck all I was thinking and praying if God had just taken me. They had beaten me for nearly 35 mins and left me in the rain and yelling at me that I was never to be seen again the village nor welcomed back. That day haunts me till today and has impacted my mental being in so many ways. I decided to live the village and went and had asked help from a [HOSTEL] who had taken in youths who had similar experiences like me, mainly youths who had been neglected and abandoned. Without anyone to confide in, my self-image took a huge beating. I than decided to take a step back tried to hide my identity as the stigma and abuse towards gay people in Fiji was torture . I constantly put myself down. I believed that since others did not see the value in me, I must not have any value to provide. Very dark thoughts entered my mind. I began to treat myself the way others treated me: with disrespect, discouragement, indifference, and carelessness. Nobody cared how I felt, no one cared how I was doing, no one cared that I needed help, and no one remembered my birthday. That feeling of being disowned from family members cause of what my father had told everyone is something I don't wish upon anyone. Feeling great anxiety about whether I was living in sin ate at me daily. I longed for nights where I didn't have to cry myself to sleep. I longed for love without the condition of being BI. The Fijian government does not accept homosexuality, it is illegal. But more than that, the people of Fiji do not accept it. While I was at the shelter I met a friend Marika ([Mr A]) who was known as [Mr A] , who had treated me and comforted me like a sibling. He was a strong advocate for the LFBTQ movement
Q: Did this applicant seek help within the country or those countries after the harm?
A: Yes
Q: Give details including: the name of the person/organisation/authorities this applicant asked for help; what help they provided, if they helped
A: Yes I had tried to seek help within the country but with my father being a military man and a village chief , everything was shut down for me. Everything has always been done behind back doors, corrupted officers who would do things for money. The media has been controlled by the government and we only get to see what they only want us to see. It is sad cause no one actually believes us, until one of us lgbtq community dies.
We have always been swiped under the mat, with our matters, as if we don't matter. Youths are dying because of issues of being abandoned and disowned by families only for wanting to live a there truest self to be who they are.
Q: Did this applicant move, or try to move, to another part of that country or those countries to seek safety?
A: Yes
Q: Give details including: where this applicant tried to move; why this applicant was unable to move; where this applicant moved to and what happened.
A: Well one thing about Fiji is you can't run or hide anwwhere. Everyone is somehow connected and you eventually can go around the main island of Fiji in a day. With the influence my father had, I wouldn't have been able to relocate in Fiji as he would somehow track me down. Coming to AUSTRALIA was the only way I knew I was being able to have a life, away from harm nor abuse.
Q: Explain what the applicant thinks will happen to them if they return to that country or those countries:
A: My father has finished his term in [Country 1] . While being here in Australia my mum was battling cancer back in Fiji. It had hurt me so much to not being able to be with her with the remaining years she had left. Her wish was that I had tried to find a girl for my fathers sake only so he can accept me, just so she can amend our relationship before her passing. I had tried to fulfill my mothers wish, I had tried a relationship with a young lady for 4 years we had been seeing each other. For me it was hard as I was living a life that I didn't want but I had to for the sake of my mum wishes. I was in a toxic relationship with [name deleted]. She had somehow controlled me mentally and abused me mentally which was draining for me to keep up too. I had to fight with my inner to demon to be the best version of myself but somehow, being with the girl made me more miserable. And when I had decided to leave the relationship, she had trapped me , blackmailing me and taking advantage of my kindness. And now with mums passing I'm regretting so many things. Now my older brother has been diagnosed with cancer here in Sydney. And I don't wanna leave him nor his kids. I have decided to put my needs aside and focus on helping my brother and being there for him since I wasn't able to be there for mum when she had passed. I don't think I would be able to return, as the only chance I had to make amends was with mum. And now when mum has passed, my father has nothing to do with me. He had warned me so many times not to cross paths, so I'm hoping I get a chance to live in Australia for good and live my truest self.
Q: Does this applicant think they will be harmed or mistreated if they return to that country or countries?
A: Yes
Q: Give details including: the type of harm or mistreatment this applicant is likely to experience; the person/people who would be responsible for the harm or mistreatment; why they would harm or mistreat this applicant.
A: Definitely, I know that my father has it out for me, and also his connection with the authorities. He has so much influence in Fiji and for that I know what I had went through in the past would sure take my life if I have to return.
Q: Does this applicant think the authorities of that country or those countries can and will protect this applicant if they go back?
A: Yes
Q: Give details as to which authorities this applicant thinks would protect them.
A: Fijis authorities is corrupted as it comes, the police commissioner and military commissioner changes every 3 months cause everyone is corrupted. The very authorities that is supposed to be keeping us safe are the very people that is beating young lgbti youths to there death beds.
Q: Does this applicant think they would be able to relocate within that country or those countries to an area where they would not be harmed?
A: No
Q: Give details about why this applicant is unable to relocate.
A: I don't think the idea of going back or relocating in Fiji is possible. Life for me has been good, I have made some bad decisions but moving forward I learn from my mistakes and keep pushing forward. I never wanna revisit my past or what I went through as a child. I know I have an opportunity now to make things right for myself and my brother and to live truly for me but not for others.
Provided to the Department are the following:
·Character reference from [a] Youth [Leader), stating that the applicant is of good character.
·Letter from [Ms B], a former board member of [a] Community. The letter is undated and does not provide an address or phone number of the writer or any other contact details. The author recalls the first time she met the applicant at ‘the old [hostel’]. The applicant showed up with a bruised face, seeking shelter. The author also recalls losing four LGBTI members from hate crimes, including [Mr A] who was close to the applicant. The letter indicates that the organisation slowly dissolved in late 2019 as assistance was not been provided.
·Articles from Gay Star News dated 19 July 2017, titled ‘Nightclub bouncer in Fiji accused of assaulting LGBTI people’, and dated 10 February 2017, titled ‘Victims of homophobic assault in Fiji too scared to go to police’.
·Article from New Newnownext, titled ‘Gay Couple Attacked In Fiji Scared To Come Forward: “My Lips Were Cut And Bleeding”’. The article states that in 1997, Fiji became the second country to explicitly protect against discrimination based on sexual orientation. The country’s 2013 constitution bans discrimination based on sexual orientation, gender identity or expression. However, as the article states, homosexuality is generally viewed negatively and there are still acts of violence against the community.
·Article from titled ‘Homosexuality in Fiji: Three Views’ by Richard Ammon. The article provides a very brief summary of three isolated stories. The first is of a happy gay couple living in Suva. The second states, ‘I don’t recommend anyone gay visit Fiji…’ due to homophobia. The third is about a murdered gay couple.
·Article from dated 18 May 2020, by Iva Danford, titled ‘84% of LGBTQI community have experienced physical intimate partner violence’.
·Article from and The Australian dated 17 May 2012, titled ‘Fiji police cancel gay pride march’.
·Article from The article was untitled and undated. It states that a person by the name of Akuila Salavuki, a transgender woman, was found dead in Suva on International Day Against Homphobia, Transphobia and Biphopia (sic), being the second suspected hate crime murder since September.
·Another article relating to the murder of Akuila Salavuki on ABC News, dated 23 July 2018 by Liam Fox.
·Article from The article was untitled and undated. It talks about a march that was stopped by police because of concerns about safety of participants.
·Article from Republic of Fiji Military Forces, titled “Commander Visits Troops in the Sinai’.
·Article from Fiji Sun dated 30 April 2010, written by Keresi Nauwakarawa, titled ‘Nausory Chief Installed’. Ratu Meli Baleinaivalu became a leader.
·Article from Fiji Sun dated 8 May 2013, written by Maika Bolatiki, titled ‘Nausori To Farewell Chief’. Ratu Meli Baleinaivalu died.
·A document titled ‘LGBTIQ Rights & Equality, Social Justice, Health & Wellbeing’. The document lists names of various people with their biographies and an overview of RPF.
·Medical report of Mr [C].
·Four certificates of course completion in Domestic Violence 101, Healthy Relationship, Stress Management, and Anger Management 101.
·Statistics of trans and gender-diverse people reported murdered between 1 January 2008 and 30 September 2021 in the world, based on countries and professions. Fiji recorded 1 murder in 2008 and 1 murder in 2018.
Independent information

The 2022 DFAT report on Fiji provides the following information:
Sexual orientation and gender identity
3.58    Fiji is one of the few countries to have constitutional protections against LGBTI discrimination. Gay sex was decriminalised in 2010. Same-sex marriage is not legal in Fiji, however same-sex couples can and do live in Fiji.
3.59    There are a few LGBTI NGOs operating in Suva that may cover issues regionally for other Pacific countries. DFAT understands that they are relatively effective in raising awareness of LGBTI issues and dealing with authorities. However, in-country sources told DFAT that this needs to be understood in the context of overall low visibility of LGBTI people and LGBTI issues; LGBTI issues are rarely spoken of and raising awareness is a difficult task. There are few research studies of LGBTI issues in Fiji and it is difficult to observe or analyse patterns of discrimination and violence against LGBTI people.
3.60    Gay men and lesbians often do not come out to their families and are often not accepted when they do. This can cause significant problems because of the traditional role that families take in welfare during times of sickness or unemployment. LGBTI people may find more acceptance in Suva, particularly in wealthier circles. According to sources, societal belief in the efficacy of ‘corrective rape’ of lesbians remains prevalent in the indigenous Fijian community, although DFAT has no way of assessing or verifying the prevalence of such practices.
3.61    Twenty-one-year-old gay man, Iosefo Qionitoga Magnus was murdered in 2017 with no arrests made. A transgender woman, 23-year-old Akuila Salavuki, was found dead in a pool of blood in May 2018. Her accused murderer was acquitted. In-country sources told DFAT that when anti-LGBTI violence occurs it is more likely to be targeted than random, but that anti-LGBTI violence may be underreported which obscures any understanding of the prevalence of anti-LGBTI violence. Media articles about violence may not disclose that the violence was an anti-gay hate crime, for example.
3.62    In-country sources told DFAT that LGBTI individuals can experience societal discrimination when accessing goods and services. LGBTI issues are not discussed generally in Fijian society, and little data other than anecdotal reports exists to demonstrate that discrimination.
3.63    The tourism industry provides employment opportunities for LGBTI people, according to in-country sources. The tourism industry is highly international by its nature and is more inclusive of LGBTI people. It also provides an opportunity for people to work away from their families, who may have rejected them.
3.64    Transgender people report high levels of discrimination and abuse. Police promised to review claims of abuse directed towards transgender people on the Transgender Day of Remembrance (an international day to remember victims of anti-transgender violence) in 2018. Some transgender women are seen and may even be accepted as ‘entertainers’ but may find it difficult to find mainstream employment.
3.65    Overall, DFAT assesses that LGBTI Fijians are at a moderate risk of official and societal discrimination and a moderate risk of violence. Because of homophobia and transphobia, many LGBTI people may hide their identity. Taboos against reporting violence against LGBTI people also exist, which may make patterns difficult to identify.[1]
…
Conditions for returnees
5.28    DFAT is not aware of any official or societal discrimination against failed asylum seekers. Many asylum seekers begin their journey by responding to advertisements that promise a job and a Medicare card in Australia. These advertisements are scams with the organisers later making asylum claims on behalf of applicants that the applicant may not be aware of at the time they sign up. Emigration and return to Fiji are common in Fijian society. Many Fijians have cultural and family links to Australia, and a return would be unlikely to be seen as unusual or attract attention from authorities.[2]
[1] DFAT, Country Information Report – Fiji, 20 May 2022, pp. 18-19.
[2] DFAT, Country Information Report – Fiji, 20 May 2022, p. 25.
Hearing, credibility, findings, and assessment
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. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), 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: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.
In considering overall the credibility of the applicant the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by suppliants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.
The Tribunal is satisfied that the applicant is a citizen of Fiji and accordingly his claims will be assessed against Fiji.
The Tribunal has the following credibility concerns with the applicant’s claims.
Firstly, despite the applicant in the interview with the delegate indicating that the written claims in the protection application form are his own, it is apparent that segments of his own stated claims are directly quoted from the experience of other individuals from an article that is publicly available.
The article was found by the delegate on the internet and is by Geoffrey Bishop and Mirko Sever, titled ‘Growing up Gay’. Bishop grew up in the 1960s and 1970 in Australia and recalled growing up in a time when coming out of the closet was difficult. Sever, was a millennial, made references to opposition to gay marriage and gay rights, and suicide rate among LGBTQ members, among others.
Distinctive passages in the article are repeated as the applicant’s own experiences in his application form for the protection visa. For instance both the applicant and the article referred to leaving an all-boys boarding school and stating ‘this saved me but also drove me deeper into the darkness of the closet’, and ‘I was so terrified of being outed that I sometimes acted as the loudest bully towards others suspected of being gay. Every day I wore a green mask to hide who I really was’.
The Tribunal put to the applicant in the hearing the fact that he has plagiarised from an article experiences of others which he claimed to the delegate that the words were his own is undermining of the truth of what he is claiming.
In response the applicant indicated that he got ideas from the article and was not initially honest.
It is undermining of the applicant’s credibility he has plagiarised the experiences of others, particularly in the context of the applicant specifically indicating to the delegate that the words were his own.
Secondly, the applicant’s written claims which are partially paraphrased with some words changed from the article referred to above state most of his male peers being interested in ‘rugby, fishing and girls’ but the applicant was not.
This is not consistent with claims by the applicant that he has been significantly involved in rugby and came to Australia to pursue his playing rugby.
The applicant did not meaningfully respond to this inconsistency in the hearing other than to indicate partially his intentions in playing rugby were to mask his issues in relation to sexuality and appear more manly. The applicant indicated, however, that he did have a genuine interest in rugby
The Tribunal maintains inconsistency in the applicant’s claims not to be interested in rugby when the truth of the situation is that he was interested in this sport.
The Tribunal acknowledges that this is an inconsistency on a relative matter of detail, however it does reinforce more significant credibility concerns that the overall accounts provided by the applicant are constructed.
Thirdly, the written claims in the application form that the applicant bullied at school other individuals suspected to be gay or bisexual is not consistent with evidence given in the interview with the delegate.
In the interview with the delegate the applicant indicated that at school he hung around with other individuals confused about their sexuality and he would talk with them to a degree about this.
The Tribunal put to the applicant in the hearing that this evidence is inconsistent with the written claims that he bullied, implying that he distanced himself from other individuals at school suspected of being gay or bisexual.
In response the applicant indicated that he was a [leader] and as part of this role would deal adversely with individuals who were effeminate. However, at the same time the applicant indicated that he would sympathetically talk to individuals suspected of being homosexual and reveal his own issues in relation to sexuality.
The Tribunal has significant plausibility concerns as to the truth of this. The Tribunal maintains there is inconsistency in the applicant’s evidence as to him revealing his sexuality to other similar individuals at school as opposed to the applicant bulling individuals who were perceived to be gay.
Fourthly, the evidence by the applicant is unclear in terms of whether the applicant is homosexual or bisexual. As noted above the written claims indicate that the applicant was not interested in girls. This is reinforced by the applicant indicating in the interview with the delegate that he sensed he was different when he was [age] years old because of his lack of interest in girls. The applicant in the interview indicates that the meaning of bisexual is someone who is attracted to the same-sex.
In relation to the latter, a bisexual is a person who is attracted to both sexes. It is implausible to the Tribunal that if the applicant had integrated with the LGBTI community as he claims during a year and a half of staying in [City 1] in a hostel supporting the LGBTI community that he would be confused as to the difference between the person being homosexual and bisexual.
The indication in interview and written claims that he is not interested in girls is inconsistent with claims by the applicant that he is bisexual. Further, the fact the applicant while he has been in Australia was having a relationship with a woman for four years is not consistent with the fact that he does not have a sexual interest in girls.
In relation to these issues put to the applicant in the hearing, he indicated that mostly his interest was in men and that it took him some period of time to realise this. This remains inconsistent with the applicant’s claim that in a very early age he had no interest in women.
The Tribunal maintains credibility concerns as a result of lack of clarity of the in terms of whether he is homosexual or bisexual.
There is a suggestion by the applicant he felt forced as a result of societal pressure to enter in Australia to a relationship with women. The Tribunal put to the applicant in the hearing that he claims to have come to Australia for fear in Fiji as a result of his sexuality. The Tribunal indicated that in that context the Tribunal would be inclined to consider that the applicant would have acted genuinely in Australia in relation to his sexuality, where he would have the significant freedom to engage in same-sex relationships.
In response the applicant indicated that his relationship for four years with a woman in Australia was significantly to hide his sexuality from his rugby colleagues. The Tribunal accepts the plausibility of this to some degree, yet maintains concerns that if the applicant genuinely identified as bisexual or homosexual including having spent a year in Fiji in an LGBTI hostel that he would not have more readily expressed his sexuality in terms of his interest mainly being with men when in Australia with the relative freedom to express his sexuality in this way.
Fifthly, evidence of the applicant in relation to being involved in same-sex relationships in Australia is limited. When asked in the interview about his same-sex relationships with men, the single event he referred to was going home with two men after a club.
The Tribunal explored with the applicant in the hearing his same-sex encounters in Australia. In response the applicant indicated that in Australia he has had no substantive relationships with men. He has had sexual encounters with three different men over time.
For the same reasons expressed in relation to the fourth credibility issue, the Tribunal considers that if the applicant left Fiji for Australia because of his sexual interest in men that he would not in the six years he has been in Australia had had more significant or meaning full same-sex relationships or encounters than the applicant has claimed in his considerable time in Austalia.
Sixthly, in the interview with the delegate the applicant refers to receiving both spiritual counselling and counselling in Australia relating to his four-year relationship with a woman. Yet, the applicant indicated that he has not discussed in this extensive counselling his bisexuality. It is undermining of claims that the applicant is bisexual given that he has not revealed this in extensive one-on-one counselling.
The Tribunal noted to the applicant that it appeared from his evidence in the interview that he had not disclosed his bisexuality in the counselling he has undertaken. The Tribunal indicated that this could be undermining of his claims that he is bisexual. The Tribunal would be inclined to consider the that the applicant would have revealed this important and innate characteristic which might be seen as significantly relevant to the various problems in the relationship that had occurred.
In response the applicant indicated that he had not wanted to open up to this counsellor. The only person he could talk to about his sexuality was his gay cousin.
The Tribunal has doubts as to the plausibility of the applicant would not have revealed the significant issue of his sexuality in the extensive counselling he has undertaken. This is particularly in the context of the applicant’s evidence of not feeling constrained at school as a [leader] to be vulnerable enough to express issues relating to his homosexuality or bisexuality to other students with similar characteristics or tendencies.
Seventhly, no significantly probative evidence has been provided of the existence in [City 1] of a hostel for the LGBTI community suffering difficulties that he claimed to have lived in for a year and a half. The delegate requested that the applicant provide a supporting letter after the interview from this organisation. In response, the applicant has provided a letter from an individual who claims to be a board member of [a] community’ indicating that she encountered the applicant at the hostel and corroborated some of his claims.
It is indicated that the organisation slowly dissolved in late 2019.
As indicated to the applicant in the hearing the Tribunal is not inclined to give this letter significant probative weight given its limited corroboration of the existence or even the name of the hostel and with the writer not providing an address or contact phone number. It has no letterhead. The Tribunal indicated that if there had been a hostel in [City 1] providing support services to the LGBTI community that there would be much more definitive evidence available of its existence.
The Tribunal indicated that the letter could easily have been constructed to provide self-serving evidence for the applicant.
In response the applicant indicated that the letter is not fabricated. He referred to the LGBTI hostel being in an old [building] the now been torn down.
The Tribunal maintains concerns no probative evidence has been provided of the existence of an LGBTI hostel in [City 1] or the applicant’s residence in this hostel for a significant period.
Eighthly, the applicant claims that he is significantly estranged from his father, who facilitated his uncle in Fiji coming with others to physically attack him when he revealed to his father his sexuality. Yet, information provided for the purpose of various visa applications of the applicant to enter Australia are inconsistent with the applicant having a significantly adverse relationship with his father.
A note on the Departmental file dated 25 February 2016 relating to an application by the applicant for a Tourist Stream visa indicates that the applicant provided evidence of personal funds and a recent home loan statement from the applicant’s father. This application was refused.
The Tribunal put the applicant in the hearing that the financial documents provided by the applicant’s father are undermining of alienation of the applicant’s family from him. This is particularly the case with respect to the financial information provided by the applicant’s father at a time after the applicant claims his father sent his uncle and others to beat him up as a result of the applicant revealing his sexuality to his father.
In response the applicant indicated that it was his mother who facilitated the provision of these documents without the knowledge of his father. The Tribunal has some concerns the applicant’s mother would have, without her husband’s consent and given his claimed dominating nature, facilitated the provision of these documents.
This, however, is not a significant credibility concern, but is considered cumulatively together with other more significant concerns.
Ninthly, the delay from the applicant’s arrival in Australia in December 2016 until May 2022 in making the claims for protection is undermining of the applicant having the fear in Fiji as claimed.
The Tribunal noted to the applicant in the hearing that it took four and a half years for the applicant after last arrival in Australia to make the claims for protection, including the applicant allowing himself to be an unlawful noncitizen from April 2017. The Tribunal noted that this very significant delay could cast doubts on the applicant’s claims to have fled Fiji because of his sexuality. If that were the case, the Tribunal considers that the applicant would have investigated protection options and made an application for protection at a much earlier opportunity.
In response, the applicant refers to the fact that for four years in Australia he had been in a relationship with a woman and the concern that if he made his application for protection his sexuality would be disclosed to his partner. The Tribunal repeats its credibility concern as a result of the applicant having a relationship in Australia for four years with a woman when he claims to have fled Fiji as a result of having mainly an interest in men, and having the relative freedom in Australia to act in relation to his sexuality.
The Tribunal maintains credibility concerns as a result of the very significant delay in the applicant applying for the protection visa particularly from being an unlawful noncitizen from April 2017.

The Tribunal considers these credibility concerns.
Considered cumulatively they are significantly adverse to the applicant’s credibility. The Tribunal is not satisfied that the applicant has been a truthful or credible witness in relation to his claimed sexuality. The Tribunal is not satisfied that the applicant is homosexual or bisexual. The Tribunal is not satisfied that the applicant revealed his bisexuality to his father or other family members, or others at any time. The Tribunal is not satisfied that the applicant’s father caused others to physically assault the applicant and drive him from his family home. The Tribunal is not satisfied that the applicant sought refuge in [City 1] at as LGBTI hostel. The Tribunal is not satisfied that on return to Fiji the applicant would be identified as a bisexual or homosexual. The Tribunal is not satisfied that the applicant’s family members or others in Fiji have a view that the applicant is bisexual or homosexual resulting in a real chance that they would inflict upon him serious or significant harm based on his sexuality. The Tribunal is not satisfied that on return to Fiji the applicant would wish to engage with sexual or romantic relationships with men. The Tribunal does not therefore consider the applicant faces a real chance of serious or significant harm on return to Fiji as a result of being perceived as homosexual or bisexual or having on return to Fiji romantic or sexual relationships with men.
The Tribunal has considered in making these findings the supporting letter from [Ms B] but gives it little probative weight for the reasons indicated.
Given these findings, the Tribunal is not satisfied that the applicant faces a real chance of serious or significant harm for any of the reasons claimed.
In summary, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for reason set out in s 5J(1) of the Act. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Fiji, there is a real risk of him suffering significant harm.
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).
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 not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
decision
The Tribunal affirms the decision not to grant the applicant a protection visa.
David McCulloch
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.
…

[2022] AATA 4421

7 September 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Natural Justice

Date	Event
14/01/2015	Tourist Stream (OFFSHORE) (FA 600) visa refusal
03/11/2015	Temporary Work (Short Stay Activity) (Class GA) visa refusal
25/02/2016	FA 600 visa refusal
11/11/2016	Temporary Work (Short Stay Specialist) visa (GA 400) grant
[date]/12/2016	Arrival in Australia
01/03/2017	Tourist Stream (Onshore) (Web)(FA 600)
01/03/2017	Bridging visa A (BVA, WA 010) grant
02/03/2017	GA 400 visa ceases; BVA ceases; Tourist (FA 600) visa grant
19/04/2017	FA 600 visa ceases
20/04/2017	Applicant becomes Unlawful non citizen (UNC)