2211938 (Refugee) - [2024] AATA 2487

2211938 (Refugee) [2024] AATA 2487 (5 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2211938
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Amy Faram
DATE:5 April 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the Applicants satisfy s 36(2)(a) of the Migration Act.

Statement made on 05 April 2024 at 10:48am

CATCHWORDS
REFUGEE – protection visa – Fiji – written claims of racial tension and political opinion – new claim of family violence raised pre-hearing – multiple assaults by husband and hospitalisation – second applicant son and other children also harmed – husband’s occupation and inaction by police – husband’s ongoing interest in applicant’s return – substantially consistent and credible oral evidence – supporting statements and character references – written application prepared by community member not migration agent, now uncontactable – no adverse inference drawn – country information – resistance to changing gender role expectations, and gender-based violence – challenges to accessing effective police protection – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), (4)(a), 5LA(2), 36(2)(a), 65, 423A
Migration Regulations 1994 (Cth), Schedule 2
CASES
C v MIMA (1999) 42 ALD 241
Chan v MIEA (1989) 169 CLR 379
Mocan v RRT (1996) 42 ALD 241
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 August 2022 to refuse to grant the Applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The Applicants, citizens of Fiji, applied for the visas on 19 May 2020. They were not interviewed. The delegate refused to grant the visas on the basis that the First Applicant did not have a profile that would lead to her being targeted because of her political opinion, that she would not face a risk of harm on account of her indigenous ethnicity, and that she would not be denied health care in Fiji. The delegate concluded there was not a real chance of persecution or a real risk of significant harm to her. The Second Applicant was refused for being unable to satisfy sections 36(2)(b) or (c), as they are not a member of the same family unit as a non-citizen who is a person in respect of whom Australia has protection obligations.
The Applicants appeared before the Tribunal on 22 March 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the First Applicant’s sister and brother-in-law, the Second Applicant’s aunt and uncle. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, they are either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or they are a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee criteria
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.
Complementary protection criteria
If a person is found not to meet the refugee criterion in s 36(2)(a), they may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’).
Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s 36(2B) of the Act.
Sections 5(1) and 36(2A) and (2B) 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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal records that having reviewed the Applicants’ identity documents and heard their oral evidence, it is satisfied they are citizen of Fiji. For the purposes of this protection eligibility assessment Fiji becomes the ‘receiving country’, and the Applicants’ protection claims are assessed in light of circumstances in Fiji as these relate to their claims.
The issue in this case is whether, on account of the Applicants experiences of family violence in Fiji, either or both of the Applicants are a person to whom Australia has protection obligations under s 36 of the Act and cl 866.221 of Schedule 2 to the Migration Regulations.
Claims and evidence
The First Applicant was born on [Date], in Fiji. The First Applicant married [Mr A] (also known as [Alias]), on [Date]. The Second Applicant, the last of their [children], was born on [Date]. The couple are from the island of [Island], and lived there from [Year] until 2018, when the First Applicant relocated with the Second Applicant to [Town], where he was starting [education] at [Education provider].
The Applicants last arrived in Australia [in] March 2020. They applied for protection on 19 May 2020.
The information included in her protection application about why the First Applicant was afraid to return to Fiji was, in summary, about her having lived through a number of military coups; having experienced racial tension and having been psychologically stressed and depressed in Fiji. Further, the First Applicant was said to have been an advocate for human rights who has expressed criticism of the government on social media and would be targeted.
The primary application was accompanied by copies of the Applicants’ passports.
Prior to the hearing of this matter by the Tribunal, the Applicants provided evidence setting out their experiences of family violence in Fiji, including:
-    a letter from [Mr B], former police officer of 20 years in the Fijian police force and relative of both the First Applicant and her husband;
-    a copy of a medical imaging report regarding the First Applicant’s nose;
-    a letter from the witnesses, [Ms C] and [Mr D] regarding the history of abuse in the family of the applicants and their efforts to assist the First Applicant to leave the relationship and obtain protection;
-    a letter from [Mr E], nephew of the First Applicant’s husband, regarding the constant physical, emotional and financial violence experienced by the family in Fiji, and the support and financial aid offered to them by her sister [Ms C] and family; and
-    a letter from [Ms F] referencing that [Mr D] and family travelled to Fiji to support the Applicants’ family.
Also provided were letters going to the Applicants’ character, from each of their employers, a family member and a church peer, as well as some country information regarding family violence in Fiji.
The Applicants provided oral evidence substantially consistent with each other’s testimony, and with the witnesses’ evidence received by the Tribunal. Both Applicants and witnesses were visibly distressed while relaying the experiences of the First Applicant and her children on account of their relationship with [Mr A], and their fears for the future. The Tribunal found their oral testimony to be credible and accepts it as credible evidence of their past experiences and fears for the future.
Written material from persons known to the family was also consistent with the Applicants’ experiences, and the Tribunal accepts it as further evidence of their past experiences of harm. In particular, the Tribunal notes the letter of [Mr B], which set out the following:
In the years of working with [Mr A] who is also a relative of mine I witnessed the abuse of my niece … in their marriage in [Town] where my niece was hospitalised in a coma.
This is where I advised [the first applicant]’s husband… to be transferred to [Island]. This was requested by [the first applicant]’s late parents, [Mr G and Ms H], so their daughter [the first applicant] could be close to them. Whereby they could try to keep her safe. But it was to no avail as the physical and emotional abuse continued. Which added to the stress and worry of her parents.
To my knowledge [the first applicant] had constantly reported physical abuse reports to the Police. However, being a former Police officer myself, I know that the police force often overlook and ultimately turn a blind eye to [these types of allegations].
This evidence, of the family’s efforts and the lack of state protection, was consistent with the oral evidence received by the Tribunal. The Tribunal accepts that in light of the failure of the authorities to protect the First Applicant, her family did what they could to provide oversight and support through proximity and shelter when needed, but it made no meaningful difference to the threat faced by the First Applicant or her children.
The First Applicant gave evidence that she fears for her life, and for her son’s life if they were returned to Fiji. She has no hope and no safety there. She is still scared of her husband and does not want to be treated like his slave. She gave evidence that she couldn’t escape him: he was [an Occupation] who could come and get her anywhere at any time. She gave evidence, also, that she feared for her children, and that there would have been no one to keep them safe from him, if she had left him.
He would often punch her, pull her hair, throw her out of the house and have affairs with other women. He would tell her it was none of her business what his life was outside of the home. She did not remember the year, but it was in the context of the First Applicant confronting him about an affair that she was left unconscious on the side of the road, and hospitalised. She said she reported him for assaulting her many times, but the police did nothing and could do nothing.
The First Applicant gave evidence that he would also often harm the children: that when he was angry at her, he would go for her children because he knows she loves her children. If she tried to leave for a time by going to the home of her parents, he would hurt her children and she would go back to the family home.
The First Applicant gave evidence that in 2018, with the help from her sister in Australia, she went with her son to [Town] when he moved there for his [education]. After two weeks, her husband came and demanded her return to the village. Her son did not want her to go and she resisted his pressure to return. Her sister encouraged her to stay there and said she would continue to financially support her to remain in [Town]. At about this time, [children] were to be born in Australia, her sister’s grandchildren, and her sister and her husband convinced the First Applicant’s husband to let her travel to Australia to provide support.
Once in Australia, the First Applicant thought constantly of her youngest son, and was afraid that her husband would hurt him if she did not return. The Tribunal notes that she returned to Fiji twice in 2019. Her sister encouraged her to come back to Australia, with her son, and they did this in December of that year. The Tribunal notes they returned very briefly to Fiji in March 2020, before returning again to Australia. The Tribunal notes that the borders then closed and the Applicants remained in Australia and lodged protection applications.
The First Applicant gave evidence that she has had no contact with her husband since she has been in Australia, but he asks her daughter all the time about when she is coming back and her daughter is afraid he will harm them. This causes the First Applicant significant stress and distress but she has told her daughter she can’t return and urges her to go to the police. Her daughter, son-in-law and children have recently moved to another village. She has been frightened all of her life and does not want to go back to Fiji.
The Second Applicant gave evidence that he is scared for his life if he had to return to Fiji: he fears his father would do something to him to make his mother go back. He gave evidence that he is closest to his mum and goes wherever she goes. He said seeing his father beat his mum up broke him into pieces, asking what kind of dad beats his own wife for nothing. He said he saw his mother punched in the face, slapped, pulled by her hair and then locked in their room where he would keep beating her.
The Second Applicant added that even if he had done nothing wrong, his father would give him really bad hidings. Once he fled and while jumping over something sharp was badly injured. Instead of assisting him, his father just looked at him and left him there, leaving his mother to take him to the hospital. He added that the beatings were daily, and that he also never gave them any money. In order to be able to get to school, the Second Applicant had to make a deal with the driver that he would sweep the bus out in exchange for a ride. He said they survived because of money sent from family in Australia.
The Second Applicant gave evidence that as his father was [an Occupation] he could do anything and that neither the police nor the village elders could help them. He said that throughout their time in [Town], after he and his mother moved there, his father would frequently come to check on them. He continued to threaten them and there was no help for them in [Town] either. He is afraid that his father will hurt him again, and that he will hurt him to hurt his mother.
[Ms C], the First Applicant’s sister, gave evidence that when her parents visited her in Australia, they would cry relaying the ongoing violence to their daughter and grandchildren and their inability to shield them from harm. [Ms C] and her husband recounted also that they were frequently the First Applicant’s and her children’s only source of financial support because the First Applicant’s husband withheld funds from them. They added that when they would visit the family in Fiji the children would freeze when he entered the room and the whole atmosphere changed. He would be gone for a week, and then return and control everything. He is a very controlling and manipulative person, who angers easily.
The witnesses explained that they had long been concerned for the family’s safety and had used the opportunity of their [grandchildren] arriving, for whom [Ms C] had significant caring responsibilities, as a way to convince the First Applicant’s husband to permit her to come to Australia for the first time in 2019.
The witnesses gave evidence that the First Applicant went back to Fiji out of concern for her youngest son. When she first came out to Australia she was a different person, very jumpy and paranoid. She is now much happier but suffers from bad anxiety. They want her to get counselling, but she is not ready to talk about her experiences.
[Ms C] gave evidence that she put in place measures to stop her brother-in-law being able to contact his sister and nephew, but that he has sent her private direct messages demanding his wife’s return to Fiji – and saying things like she is still my wife, the mother of my children, I have the right to tell her what to do. She had deleted these messages.
They are afraid both Applicants would experience serious harm in Fiji and gave evidence about the closeness of the relationship between the First and Second Applicant and their view that [Mr A] would target the Second Applicant in order to hurt the First Applicant and lure her back to Fiji.
The Tribunal has had reference to a recent medical imaging report, noting a ‘mild deviation of nasal septum’, but finds the document is of limited value in evidencing historical events. The Tribunal observed the First Applicant’s crooked nose and, in any event, accepts the oral and written testimony that she has experienced significant injuries, including facial injuries, during her marriage.
The Tribunal questioned the First Applicant about the content of her protection visa application, which only raised claims about political instability in Fiji and concerns about the economic conditions there. She gave evidence that she told the person who had assisted her that she had experienced and was afraid of family violence. The witnesses addressed this matter also, giving evidence that they had heard the First Applicant had been assisted by a person in the community who, it turned out, was not in fact a migration agent and who has since become uncontactable. Notwithstanding the requirement in s 423A of the Act, the Tribunal is satisfied, on the weight of evidence before it, that the Applicants’ claims as provided to the Tribunal are genuine. There are, unfortunately, frequent examples of visa applicants being poorly assisted in the making of protection visa applications, and the Tribunal accepts that this is one such instance.
Country information

Fiji is a nation of about 940,000 people, spread over a third of the country’s 330 islands.[1]
[1] DFAT Country Information Report Fiji’, Department of Foreign Affairs and Trade, 20 May 2022, (DFAT Report 2022), p.6.
Women in Fiji experience gender disparity and a moderate level of societal discrimination.[2] As set out in the DFAT report 2022, according to World Bank figures, the participation rate for women is the lowest in the Pacific region, at 35 per cent of the labour force[3] - and has worsened since COVID-19. Traditional gender roles restrict the participation of indigenous women in political processes, and their ability to inherit land equally to men.[4] Women also earn on average one-third less than men.
[2] DFAT Country Information Report Fiji’, Department of Foreign Affairs and Trade, 27 September 2017, p.21.
[3] DFAT Report 2022, p17.
[4] DFAT Report 2022, p17.
Fiji is a male-dominated society and traditional gender roles are entrenched.[5] Traditionally, women in Fiji are primarily responsible for cleaning, cooking and child rearing, and have additional obligations placed on them by culture and interpretation of religion, while men are heads of households and primary breadwinners.[6] For iTaukei (indigenous Fijians), Vakaturaga encourages the silence of women because they are not usually considered to be representatives at any level, a view that is supported in the teachings of the majority of Christian churches in Fiji.[7] Although expectations about gender roles are changing, as villagers are exposed to other ideas during their visits to urban centres, in many places such changes have been strongly resisted.[8]
[5] DFAT Report 2022, p.17.
[6] J. K. Singh, H. Singh, E. Thomas & N. Druce, Comparative legal review of the impact of gender stereotyping on judicial decisions in violence against women cases across the Pacific Island Region, Sisters for Change (UK), 2020, p13.
[7] A. Biersack, M. Jolly, & M. Macintyre (eds), Gender Violence & Human Rights: Seeking Justice in Fiji, Papua New Guinea and Vanuatu, Australian National University Press (ANU), 1 January 2016, pp54-55.
[8] A. Biersack, M. Jolly, & M. Macintyre (eds), Gender Violence & Human Rights: Seeking Justice in Fiji, Papua New Guinea and Vanuatu, Australian National University Press (ANU), 1 January 2016, p56.
In a 2016 article called Villages, Violence and Atonement in Fiji, academic Lynda Newland who conducted research in Fiji, recounted the following:
Whether the perpetrator of physical violence is a husband or a father, the victim is frequently blamed by both men and women for not having given the perpetrator enough respect. A male respondent from a village in western Viti Levu said that if the violence got worse and the woman died, that was just the way it was: men should always have the dominant place in the household. Ra informants said that they were told in church that women have to listen to men because men are the heads of the household: ‘Man represents God in the family’. Near Suva, informants explained that women are beaten when they have overstepped ‘their female boundaries’ or gender role expectations.[9]
[9] A. Biersack, M. Jolly, & M. Macintyre (eds), Gender Violence & Human Rights: Seeking Justice in Fiji, Papua New Guinea and Vanuatu, Australian National University Press (ANU), 1 January 2016, pp 56-57.
Violence against women is prevalent. Between January and July 2022, the Fiji Women’s Crisis Centre (FWCC) recorded 791 domestic violence cases, an increase from previous years.[10] In 2020, 10 women died from domestic violence.[11] In June 2023, the Fijian police force reported that more than 9,000 assault cases have been recorded against women in the last four years.[12] In March 2022, the FWCC reported that 64 per cent of women who have ever been in an intimate relationship had experienced physical or sexual violence. Of these, 61 per cent of women have experienced physical violence and 34 per cent have been sexually abused or raped.[13] In 2014, the FWCC reported that every day, 43 women are injured, one is permanently disabled and 71 lose consciousness as a result of domestic violence.[14]
[10] Country Reports on Human Rights Practices for 2022 - Fiji', US Department of State, 20 March 2023, pp.15- 16.
[11] DFAT Report 2022, p17.
[12] ‘Police force records more than 9,000 assault cases against women’, FBC News, 26 June 2023.
[13] ‘Fiji’s Domestic Violence Average Rate At 64%’, Fiji Sun, 12 March 2022.
[14] ‘Fijian women’s experiences of domestic violence and mothers’ perceived impact of children’s exposure to abuse in the home’, Tonsing, J, International Social Work, Volume 63, Issue 1, January 2020
In September 2023, the Minister for Women, Children and Social Protection stated that 4 out of 5 children are currently facing some form of abuse.[15] The situation has worsened considerably in recent years, with NGOs reporting a ‘concerning increase’[16] in gender-based violence since the COVID-19 pandemic.[17] The FWCC reported a 300 per cent increase in domestic-violence related calls to its hotline in the month following the introduction of COVID-19 related curfews and lockdown measures in 2020.[18] In late 2023, Fiji launched a National Action Plan to prevent violence against women and girls for 2023-2028.[19]
[15] '4 out of 5 children are facing some sort of abuse', Fiji Village, 27 September 2023.
[16] '‘Crisis within a crisis’: Violence against women surges in Fiji', Sheldon Chanel, Aljazeera, 24 February 2021.
[17] 'Freedom in the World 2023 - Fiji', Freedom House, 31 August 2023; 'Country Reports on Human Rights Practices for 2021 - Fiji', Bureau of Democracy, Human Rights, and Labor, United States Department of State, 12 April 2022, p.16; 'Amnesty International Report 2021/22: The State of the World's Human Rights', Amnesty International, 29 March 2022; ‘Access to safe houses key for victims of violence in Fiji: govt’, Radio New Zealand, 16 September 2020.
[18] ‘'‘Crisis within a crisis’: Violence against women surges in Fiji', Sheldon Chanel, Aljazeera, 24 February 2021.
[19] 'Fiji National Action Plan to Prevent Violence Against All Women and Girls 2023-2028', UN Women, United Nations Women, 01 June 2023.
Domestic violence and rape (including spousal rape) are criminal offences under Fijian law[20] and police are meant to practise a ‘no drop’ policy that requires them to pursue investigations even when victims withdraw accusations, but it is not consistently followed.[21] In Indigenous communities, there is significant pressure on women to reconcile with husbands and partners following incidents of violence, rather than seeking justice through the legal system.[22]
[20] 'Country Reports on Human Rights Practices for 2022 - Fiji', US Department of State, 20 March 2023, p.16.
[21] 'Country Reports on Human Rights Practices for 2022 - Fiji', US Department of State, 20 March 2023, pp.16, 18.
[22] ‘Report of the Auditor General of the Republic of Fiji: Coordination of Actions of Elimination of Violence against Women Performance Audit’, Office of the Auditor General Republic of Fiji, 2019, p.16.
There are numerous challenges to accessing effective police protection in gender-based violence cases. DFAT states that police protection is available, but not consistently with some stations lacking the equipment or transport to effectively deal with such cases.[23] The United States Department of State reports lax police enforcement of domestic violence laws.[24] In the past, the authorities released offenders without a conviction on the condition of good behaviour.[25] A Fijian Auditor General report of 2019, found there was inconsistency in the application of legislation prohibiting violence against women, with police often pressuring women to reconcile with perpetrators and being sometimes unhelpful or even hostile to domestic violence victims who filed reports.[26] In 2022, it was reported the courts dismissed some domestic violence cases, and gave perpetrators light sentences.[27]
[23] DFAT Report 2022, p.18.
[24] 'Country Reports on Human Rights Practices for 2022 - Fiji', US Department of State, 20 March 2023, p.16.
[25] 'Country Reports on Human Rights Practices for 2022 - Fiji', US Department of State, 20 March 2023, p.16.
[26] DFAT Report 2022, p.18.
[27] 'Country Reports on Human Rights Practices for 2022 - Fiji', US Department of State, 20 March 2023, p.16; Report of the Auditor-General of the Republic of Fiji, Parliament of Fiji 20 August 2019 (Auditor-General Report 2019), p. 110; J. K. Singh, H. Singh, E. Thomas & N. Druce, Comparative legal review of the impact of gender stereotyping on judicial decisions in violence against women cases across the Pacific Island Region, Sisters for Change (UK), 2020, pp. 44-45.
Country information about traditional leaders and customs indicates traditional patriarchal views of the roles of girls and women create an environment of tolerance of violence against women.[28] The church, ‘an important moral authority in Fiji’ also ‘often present[s] a barrier to addressing vulnerability to modern slavery, for example, by hindering the success of violence prevention initiatives by advocating for women to return to abusive relationships with men for the sake of preserving the marriage.[29]
[28] Somebody’s Life, Everybody’s Business! National Research on Women’s Health and Life Experiences in Fiji (2010/2011): A survey exploring the prevalence, incidence and attitudes to intimate partner violence in Fiji, Fiji Women’s Crisis Centre, Fiji Women’s Crisis Centre, 11 December 20213; Harmful Practices Against Women in Pacific Island Countries: Customary and Conventional Laws, Jalal I, Pacific Regional Rights Resource Team, United Nations, 3 June 2009.
[29] Ocean and Human Rights, Tackling Gender Inequality in Fiji: Business Responsibilities and Opportunities, May 2023, p4; Walk Free, Murky Waters, a qualitative assessment of modern slavery in the pacific region, 2020, p.42; [29] J. K. Singh, H. Singh, E. Thomas & N. Druce, Comparative legal review of the impact of gender stereotyping on judicial decisions in violence against women cases across the Pacific Island Region, Sisters for Change (UK), 2020, p13.
DFAT assesses that women who experience domestic violence are by definition at high risk of violence and at moderate risk of discrimination in the form of a lack of access to protection.[30] According to DFAT, women who experience violence in rural areas (including the outer islands) may have more difficulty escaping violence, including because shelters are unlikely to exist in these areas, and therefore family members may have to be relied upon for protection.[31] Family ties, loyalties and traditional hierarchies can protect perpetrators. DFAT assesses that relocation is ‘not necessarily helpful’ given Fiji’s small size and that people can be tracked down through kinship networks.[32]
Refugee criteria
[30] DFAT Report 2022, p.18.
[31] DFAT Report 2022, p.18.
[32] DFAT Report 2022, p.18.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
First Applicant
The Tribunal accepts the First Applicant has experienced serious harm in Fiji, and that she witnessed her children be subjected to serious harm, incidents that were traumatic and harmful to her. Her evidence, together with that of her son and family members, was consistent and compelling. The Tribunal accepts she has in the past experienced grave injuries, including on one occasion being knocked unconscious and hospitalised, and that her extended family have struggled to, over many years, reduce the risk of harm faced by her and her children.
The Tribunal accepts that the First Applicant would continue to face a real chance of harm should she be returned to Fiji. The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a subjective fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. As noted above, a ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 279.
The Tribunal accepts the evidence of the First Applicant and her family members that her husband followed her from their village island to [Town], when she relocated there with her youngest son in 2018, and that he has continued to demand she return to Fiji and resume her role as his wife. The Tribunal accepts that he has menaced his only daughter, enquiring after her mother, and that her daughter fears he could hurt her or her children in order to prompt the First Applicant’s return to Fiji. Given the long and violent history of the relationship, and the ongoing interest in the location of the First Applicant, the Tribunal accepts that her husband would seek her out, would find her, and that there is a real chance he would seriously harm her. The Tribunal makes this finding having also considered the gendered nature of the violence suffered and likely to be suffered, and the fact that it has occurred and will continue to occur in the context of a society in which gendered stereotypes are entrenched, as discussed further below.
The harm feared includes threats to her life and significant physical, financial and emotional ill-treatment amounting to serious harm under s5J(5) of the Act.
If a person fears persecution for one or more of the reasons mentioned in s5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s 5J(4)(a).
The Tribunal considers that the harm feared by the First Applicant from her husband is for the reason of her gender. Domestic and family violence is widely acknowledged to disproportionately affect women and girls.[33] High rates of gender-based violence are found where women are accorded less value and access to power than men. Societal factors which support an inferior status for women and drive domestic and family violence include rigid stereotypes about the roles of women and men in the family and society, beliefs in dominant forms of masculinity and men’s control of decision-making, limits on women’s independence in public and private life and social attitudes condoning violence against women.[34]
[33] ‘Terminology’, Australasian Institute of Judicial Administration (AIJA), National Domestic and Family Violence Bench Book (2021).
[34] Our Watch, Change the Story; A Shared Framework for the Primary Prevention of Violence against Women in Australia (2^nd ed. 2021) 36.
Domestic and family violence is rooted in beliefs that men are entitled to use violence to enforce gender roles and to prevent or punish behaviour which does not conform to societal gender norms.[35] The social norms and the context of gender inequality in the relevant society as well as the dynamics of violence are relevant to assessments of both the forward-looking risk of suffering domestic and family violence in the future, as noted above, and the reasons for that violence.
[35] CEDAW Committee, General Recommendation No 35 on Gender-based Violence against Women, Updating General Recommendation No. 19, UN Doc CEDAW/C/GC/35 (26 July 2017) 7 [19].
Country information set out above evidences that violence against women, particularly in the domestic setting, remains a significant problem in Fiji.[36] The cultural enforcement of gender roles is a major reason for this: ‘gender inequality is rooted in traditional norms, customs and models of decision-making that give more power to men than women’.[37] While laws protecting women exist, in practice, at both formal (judicial and policing levels of enforcement), and informal levels (through traditional leaders, or the Church), patriarchal attitudes continue to see women disadvantaged, discriminated against and denied protection on the basis that their gender and traditional role within the home dictates they are subordinate to the male family head.[38]
[36] See also, N. Stamatakis, Domestic Violence, Law Enforcement, and Traditional Practices in Fiji Islands: A Comprehensive Examination, Global Trends in Law Enforcement – Theory and Practice, 21 February 2024, p3.
[37] Ocean and Human Rights, Tackling Gender Inequality in Fiji: Business Responsibilities and Opportunities, May 2023, p4.
[38] Ocean and Human Rights, Tackling Gender Inequality in Fiji: Business Responsibilities and Opportunities, May 2023, p4; [38] J. K. Singh, H. Singh, E. Thomas & N. Druce, Comparative legal review of the impact of gender stereotyping on judicial decisions in violence against women cases across the Pacific Island Region, Sisters for Change (UK), 2020, p12-14.
For these reasons, the Tribunal accepts that the essential and significant reason for the harm the First Applicant fears from her husband is her gender and membership of the particular social group ‘women’. This group is defined by a shared innate or immutable characteristic[39] – gender – which is not a shared fear of persecution.[40] As such, the Tribunal find that the First Applicant fears harm for a s 5J(1)(a) reason.
[39] Section 5L(c)(i) of the Act. Gender has long been recognised as an innate characteristic, see UNHCR, Guidelines on International Protection No 1: Gender-Related Persecution within the Context of Article 1A(2) of the 1951 Convention and/or its 1967 Protocol relating to the Status of Refugees, UN Doc HCR/GIP/02/01 (7 May 2022) [30]. For recent acknowledgement in Australia, see Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth) 178 at [1220].
[40] Section 5L(d) of the Act.
In assessing whether the First Applicant’s real chance of being persecuted extends to all areas of Fiji, the Tribunal has considered evidence that her husband is a former [Occupation] of many years, that he has an ongoing interest in her return, and that Fiji is a small nation in terms of size and population. The Tribunal accepts that he would be able to locate her were she to return to another area of Fiji and that the risk of persecution to the First Applicant extends throughout the islands of Fiji.
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s 5J(2). Section 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.
A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA(2).
The Tribunal finds that the First Applicant would not be able to access protection from the harm she fears in Fiji because of her husband’s former role within [Employer] and because the police have declined to protect her and their children over many years. The Tribunal notes, further, that country information cited above indicates the Fijian police force is not a reasonably effective force in the context of family violence matters. While the National Action Plan into family violence, launched late last year, might in due course improve standards, it will likely be some time before meaningful change is seen. The Tribunal finds that effective protection from the harm feared by the First Applicant in Fiji is neither accessible nor available.

For these reasons, the Tribunal is satisfied that the First Applicant faces a real chance of persecution in the reasonably foreseeable future, if she returns to Fiji. Therefore, she is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Second Applicant
The Tribunal accepts the Second Applicant has experienced serious harm in Fiji. His evidence, together with that of his mother and family members was consistent and compelling. The Tribunal accepts that in the past he has experienced violence beyond that which is questionably tolerated as corporal punishment and that he has experienced serious physical harm at the hands of his father. The Tribunal accepts also, that the Second Applicant has witnessed incidents of violence against his mother and that these experiences have caused him serious harm by way of emotional trauma. Such harms, when perpetrated between parent and child, constitute family violence.
As set out above, a ‘real chance’ of persecution is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.[41]
[41] Chan Yin Kin v MIEA (1989) 169 CLR 379.
The Tribunal finds that the Second Applicant would face a real chance of experiencing serious harm should he be returned to Fiji. As noted above, the Tribunal accepts the evidence of the Applicants and their family members that his father followed them from their village island to [Town], when they relocated, and that he has continued to demand the First Applicant return to Fiji and assume her role as his wife. As also noted above, the Tribunal accepts that the Second Applicant’s father has scared his sister in the course of making enquiries after their mother. The Tribunal accepts the family’s evidence that the Second Applicant’s father would be motivated to harm him in order to draw the First Applicant back to Fiji and/or to punish her, knowing that his causing harm to her child would cause the First Applicant severe emotional harm.
The Tribunal accepts the evidence before it that the Applicants have a particularly strong bond. The Second Applicant is the couple’s youngest child and was sickly, requiring additional care and support from his mother. He in turn, as he has aged, has taken on the role of seeking to protect his mother, being the last child within her household. It was with the Second Applicant that the First Applicant, in 2018, finally moved from the island where she lived with her husband, to [Town], where he was studying. It was also only once her youngest son was safely in Australia, that the First Applicant sought protection, though she had realised on an earlier trip, in 2019, that Australia was a safer place for her to be. The Tribunal accepts the evidence given that this strong mother-son dynamic is known by the perpetrator and that there is a real chance he would seek to exploit it in order to prompt the First Applicant’s return to Fiji and/or to cause her harm.
The Second Applicant is at risk of being targeted because of his relationship with his parents. The Tribunal is satisfied that the essential and significant reasons for the harm feared by the Second Applicant is his membership of the particular social group, being his family.[42] Given the First Applicant fears harm for a s 5J(1)(a) reason, as set out above, the qualification in s 5K of the Act does not apply.[43]
[42] Chan v MIEA (1989) 169 CLR 379 at 396; Mocan v RRT (1996) 42 ALD 241 at 246; C v MIMA (1999) 42 ALD 241 at 246; see also ss 5L & 5K of the Act.
[43] Section 5K provides that in assessing whether membership in a family constitutes a particular social group, the Tribunal must disregard any fear of persecution or any persecution that any other member of the family has experienced, where the reason for the persecution is not a reason mentioned in paragraph 5J(1)(a).
In assessing whether the First Applicant’s real chance of being persecuted extends to all areas of Fiji, the Tribunal has considered the long history of violence within the family, evidence that his father is [an Occupation] of many years, his father’s ongoing interest in his mother’s return, the close bond between mother and son, and the small size of Fiji. The Tribunal accepts that his father would be able to locate him were he to return to another area of Fiji and that the risk of persecution to the Second Applicant extends throughout the islands of Fiji.
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s 5J(2). As noted earlier, s 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.
A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA(2).
The Tribunal finds that the Second Applicant would not be able to access protection from the harm he fears in Fiji because of his father’s former role within [Employer], and in light of the fact that the police have declined to protect his mother and siblings over many years. The Tribunal accepts that the authorities will view this as a private family matter between father and son and that they will, as they have previously done, protect their own.
The Tribunal notes further that country information cited above indicates the Fijian police force is not a reasonably effective force in the context of family violence matters. As already noted, while the National Action Plan into family violence, launched late last year, might in due course improve standards, it will likely be some time before meaningful change is seen. The Tribunal finds that effective protection from the harm feared by the Second Applicant in Fiji is neither accessible nor available.
For these reasons, the Tribunal is satisfied that the Second Applicant faces a real chance of persecution in the reasonably foreseeable future, if he returns to Fiji. Therefore, he is a person in respect of whom Australia has protection obligations under section s 36(2)(a).
CONCLUSION
For the reasons given above the Tribunal is satisfied that each of the Applicants is a person in respect of whom Australia has protection obligations: the applicants therefore satisfy the criterion set out in s 36(2)(a).
Section 36(3) of the Act provides that Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail themselves of a right to enter and reside in a third country. In this case, there is no evidence to suggest that the Applicants have any right to enter and reside in any other country and the Tribunal finds that s 36(3) does not apply in the circumstances of these cases.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the Applicants satisfy s 36(2)(a) of the Migration Act.
Amy Faram
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.
…