2211938 (Refugee)

The Administrative Appeals Tribunal considered the protection visa applications of two Fijian citizens. The applicants' initial claims for protection were based on experiences of racial tension and political opinion in Fiji. However, prior to the hearing, they introduced new claims relating to extensive family violence, including multiple assaults on the first applicant by her husband, harm to their son and other children, and the husband's alleged ongoing interest in their return to Fiji. The Tribunal was required to determine whether, in light of these experiences of family violence, either or both applicants were persons to whom Australia owed protection obligations under section 36 of the Migration Act 1958 (Cth) and clause 866.221 of Schedule 2 to the Migration Regulations.

The Tribunal considered the oral evidence of the applicants, which it found to be substantially consistent and credible, alongside supporting statements and character references. It noted that the initial application was prepared by a community member, not a migration agent, and that this individual was now uncontactable, but drew no adverse inference from this. The Tribunal also had regard to country information regarding resistance to changing gender role expectations, gender-based violence in Fiji, and challenges in accessing effective police protection. The Tribunal was satisfied that the applicants were citizens of Fiji and that Fiji was the relevant receiving country for the assessment of their claims.

The Tribunal found that section 36(3) of the Act, which relates to the obligation to avail oneself of rights in a third country, did not apply as there was no evidence of such rights. Ultimately, the Tribunal remitted the matter for reconsideration, directing that the applicants satisfy section 36(2)(a) of the Migration Act. This indicates that the Tribunal found the existing evidence and claims warranted further assessment regarding whether Australia had protection obligations towards the applicants.