2307088 (Refugee)

[2024] ARTA 814

2307088 (Refugee) [2024] ARTA 814 (6 December 2024)

DECISION AND  

REASONS FOR DECISION

Representative:  Mr Parth Kaushikkumar Brahmbhatt

Respondent:Minister for Immigration and Multicultural Affairs

Tribunal Number:  2307088

Tribunal:General Member R Lee

Date:6 December 2024

Place:Perth

Decision:The Tribunal affirms the decisions under review.

Statement made on 06 December 2024 at 2:04pm

CATCHWORDS
REFUGEE – protection visa – Fiji – Federal Circuit and Family Court remittal – political instability, corruption, economic conditions and general crime and violence – sexual assaults and psychological and emotional harm – first assault not included in visa application – reasonable explanation and no adverse inference – no political activity – multiple departures and returns for job – country information – election and change of government with no significant political unrest – risks faced by population generally – members of family unit husband and children – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), (b), (c), 65, 367A
Migration Regulations 1994 (Cth), Schedule 2

CASES
GLD18 v MHA [2020] FCAFC 2
MIAC v SZQRB (2013) 210 FCR 505
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1992) 34 ALD 347
SZSPT v MIBP [2014] FCA 1245
SZTEQ v MIBP [2015] FCAFC 39

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 August 2019 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The first-named applicant is the primary visa applicant (PVA). The second-named applicant is the PVA’s husband (husband).[1] The remaining applicants are their children, aged [Ages] respectively.[2]

   [1] Fijian Marriage Certificate – [November] 2007.

   [2] Three Fijian Birth Certificates and one Western Australian Birth Certificate.

3. The husband arrived in Australia first [in] November 2011, arriving and departing multiple times over the years. The husband last arrived [in] August 2017, and has not departed since.[3]

   [3] Movement record – 17 June 2024.

4. The PVA arrived in Australia first in August 2005, arriving and departing multiple times overthe years as [an occupation 1]. In the delegate’s decision it is noted that the PVA recorded [Number] arrival and departure travel movements for Australia. The PVA arrived [in] October 2017 with the three older children, and they have not departed since.[4] The youngest child was born in Australia.[5]

   [4] Movement records – 17 June 2024.

   [5] The delegate’s decision incorrectly referred to the youngest applicant having been born in Fiji.

5. The applicants who claim to be nationals of Fiji, applied for the visas on 17 November 2017.[6] The delegate refused to grant the visas on the basis that the PVA experienced a random and opportunistic sexual assault in 2006, her political opinion is unknown by the Fijian government or population, the PVA’s travel history did not support the claim that she feared persecution in Fiji and she would be able to access mental health care in Fiji.

   [6] The delegate’s decision refers to the date of application being 31 October 2017. Nothing turns on this. The Tribunal notes that the youngest applicant was born after the application as made. Nothing turns on this.

6. On 30 November 2022, the Tribunal (differently constituted) affirmed the delegate’s decision.[7] The matter is now back before the Tribunal pursuant to an order of the Court.

   [7] 1923017 (Fiji), 30 November 2022, (Member P Katsambanis).

7. The PVA appeared before the Tribunal (as presently constituted) on 17 June 2024 to give evidence and present arguments. The applicants were represented in relation to the review. The representative attended the Tribunal hearing.

   BACKGROUND

   Evidence before the Department

8. According to information contained in their protection visa application:

   (a)the PVA is a [Age]-year-old Fijian citizen who was born in [Town 1], Fiji to Fijian citizens. The PVA and the husband married in November 2007, and the PVA was pregnant at the time of the application. The PVA and the husband belong to the Fijian ethnic group and are Christian; and

   (b)the husband and the children were not making their own claims for protection.

9. In relation to their claims for protection, the PVA claimed the family left Fiji because of the fear and uncertainty that threatened their will to survive. The PVA referred to the Fijian government and the (at that time) upcoming election and wanting her family to be safe and her children to have a chance at a successful future. The PVA claimed that applying for the visa made her an enemy of the state because of her opinion about the instability of Fiji and the government’s inability to provide the best for its people. She did not feel safe if her family returned to Fiji and was seeking a safe future for her children. The PVA stated that there were no physical threats, the threats were psychological and emotional.

10. On 23 November 2017, [Employer 1] confirmed in writing that the PVA was employed by them as [an occupation 1], having joined the company on 10 July 2006.

    Protection visa application interview

11. The Department invited the PVA to attend an interview on 10 June 2019.

12. The PVA did not want to add or change anything in her protection visa application and agreed with everything in it.

13. The PVA was born in [Town 1] in [Year] and lived in [Town 2] before coming to Australia. The PVA had lived in [Town 3] for a year and a half at the time of the interview. Her father and stepmother live in [Town 3], but her biological mother has passed away. The PVA has one sister who lives in Perth, a brother studying in Perth and one brother in Fiji.

14. The PVA, her husband, and her two children were in Australia for Christmas 2016, but she returned to Fiji in February 2017 to give birth to her third child in [Month] because it was too expensive to do it in Australia. The PVA returned to Australia in October 2017 to Sydney for one or two months. They then moved to Perth, because her sister was here for a couple of months, and then [Town 3] because her parents were there and there was better support. She returned to Perth to give birth to her fourth child because of her weight and complications. One month later she returned to [Town 3].

15. For eleven years, the PVA was an international [occupation 1] with [Employer 1] and had travelled multiple times to [Countries 1-5] and Australia. She resigned and applied for the protection visa in 2017 because of the uncertainty in Fiji due to the upcoming election (in 2018), and she was concerned for her children after her previous traumatic experiences.

16. The PVA said she did not wish to return to Fiji, because:

    (a)she had made a protection visa application which she had thought would make her an enemy of the state, but now she knows that the Department does not share that information with the Fijian government. The PVA has not heard of anyone who has returned;

    (b)she has given up everything for the future, the safety and health of her children, and if she returned to Fiji she would have to start all over again with the risk of further coups;

    (c)of the uncertainty of the political system in Fiji and the effect that has on prices and people being unable to get ahead despite working hard. The PVA was earning F$16,000, being just above the poverty line, for seven years, plus allowances covering expenses such as rent etc;

    (d)although she does not fear physical harm, she fears the effect on her mental and emotional wellbeing. She has been suicidal because there is no hope. It is impossible to have a house or plan for your children to attend university;

    (e)she fears psychological and emotional harm because when she was [Age], she was raped in [Town 2], being at the wrong place at the wrong time. The group involved were escaped prisoners, who were arrested a few weeks later. She did not report the assault and she did not attend hospital. After the arrest of the perpetrators, she told a cousin, who was married to police officer. The PVA’s father is [an occupation 2] for [an employer]. The events affected her work, which the PVA’s managers saw and provided counselling sessions.

17. The PVA said she was not singled out to be a target, not directly. The PVA did not vote in the last Fijian election whilst in Australia. The PVA was not politically active in Fiji and had not been part of a protest.  The PVA had conversations with groups and communities, and she has family who are civil servants and work colleagues. People could get into trouble because of what they said, however the PVA had not received any reprisal from the Fijian government. The Attorney-General was part of [Employer 1], which was intimidating and the PVA felt there was no freedom of expression. 

18. The PVA had thought there was going to be another coup. The family had also thought the election before would be different, but they gave the situation a chance. However, the same government won and nothing changed, in fact economically it became worse for them. The applicant is a Fijian native but does not own land. The government has taken everything from the landowners, in that the power to devolve land has been taken away from the Chiefs. It will cause generational displacement, and the husband is not full-Fijian, he is [Ethnicity] Fijian, and has no village in Fiji. He had been studying to be [an occupation 3] (which cost the family $30,000), but he could not afford to finish his education. He was on a list to receive a scholarship, but when the government came in, they scrapped the Fijian First Board and multicultural scholarships. The husband only had 50/200 more hours to do. The family tried little businesses and their parents supported them when they could. They could not obtain a loan for a house, even though the PVA had steady secure employment. A person has to have a very good job to buy a house, have a car or send their children to university. As a parent, the PVA feels she cannot shield and protect or provide basic needs for her children in Fiji.

    Evidence before the Tribunal

    The review application

19. On 19 August 2019, the applicant lodged an application for review of the delegate’s decision with the Tribunal, providing a copy of the delegate’s decision with the application.

20. As previously noted, on 30 November 2022, the Tribunal (differently constituted) affirmed the delegate’s decision. This was on the basis that it was not satisfied that the PVA had a well-founded fear of persecution for s 5J(1)(a) reasons; the PVA would not face harm for any reason; the impact on the PVA’s mental health in returning to Fiji would not constitute significant harm; there was no real chance of the daughters suffering domestic violence and other claims made were vague. On 17 June 2024, the applicants provided the Tribunal (as presently constituted) a copy of the Tribunal’s 30 November 2022 decision.

21. On 18 May 2023 that decision was set aside by the Federal Circuit and Family Court of Australia (Division 2), on the basis that the Tribunal fell into error as it did not properly consider an integer of the PVA’s claims in the context of the complementary protection criterion.[8] The Tribunal had accepted that the PVA had been sexually assaulted on two occasions in the past. While the Tribunal found that this attack (sic) was opportunistic in nature and not ‘motivated for any reason’ (at [127]), such a finding did not dispose of the need for the Tribunal to consider the level of real personal risk to the applicant that further opportunistic and generalised incidents may occur on return. The failure to consider the claim in the context of the complementary protection criterion could have deprived the applicants of a successful outcome.

    [8] Consent order in PEG2/2023 dated 18 May 2023.

22. On 22 May 2023, the Tribunal wrote to the PVA acknowledging that her review application had been remitted back to the Tribunal from the court.

23. On 23 May 2023, the Tribunal wrote to the PVA, in which the included information sheet advised that if the PVA had any material not yet provided, which they believed supported their application, including a statement setting out why they disagreed with the delegate’s decision, then they were to send it in as soon as they could.

24. On 15 May 2024, the Tribunal sent a link to a pre-hearing information form to the applicants which contained various questions for the applicants to complete and which asked the applicants to provide any additional evidence they wished to submit as soon as possible.

25. On 22 May 2024, the applicants provided the Tribunal with a copy of the completed pre-hearing information form, in which the applicants said they did not wish to submit any further documents.

26. On 22 May 2024, the Tribunal sent the applicants an invitation to attend a hearing. The hearing invitation asked the applicants to provide all documents on which they intended to rely to support their case by 10 June 2024.

27. On 10 June 2024, the applicants provided a completed hearing invitation response form, with submissions, in which the PVA stated that:

    (a)leaving Fiji was a result of her need to protect her children, who have a right to be safe from the violence and abuse culture she had experienced and which she believes was a direct result of political instability, abuse of power, and corruption in Fiji;

    (b)fears returning to Fiji because she will be taking her children to a place where they will suffer and not have a good quality of life. They will be subjected to sexual and domestic violence, and drug abuse. The PVA grew up in a society where there were no active bystanders, and violence towards young people and women was witnessed without intervention. Fiji now has a coalition party in Government, but this is not enough. She is not a politician; she is a mother and a woman trying to protect her children;

    (c)her childhood trauma has affected her whole life as a young person and as an adult, and the situation in Fiji is worse than it was when she left; and

    (d)Fiji now has a big drug problem, an increase in the number of positive HIV cases, and violence against women resulting in death, and referred to four articles said to illustrate the dangers currently present in Fiji.

28. On 17 June 2024, the applicant sent the court book to the Tribunal, which included:

    (a)submissions of the PVA dated 31 October 2022, which:

    a.detailed an indecent assault experienced by the PVA in 2000 when she was [Age] by a policeman who was a family friend, who had placed his hands on her stomach and breasts, and covered her mouth, after which she developed a fear of any man in police uniform and was unable to talk about the assault with anyone;

    b.said she experienced this trauma during the country’s most vulnerable times. It did not happen once it happened twice. This has left her with a mental trauma and a scar on her body from her early life that will never be erased;

    c.detailed a sexual assault experienced by the PVA during the December 2006 coup, before she was twenty-one years old by escaped prisoners. She did not report it to the police, as the thought of doing so gave her panic and anxiety attacks. She was employed as [an occupation 1] at the time, and it was in Sydney, Australia she discovered the assault had made her pregnant and caused a miscarriage;

    d.stated Fiji does not have the resources to support the people who are suffering with mental and health issues as a result of sexual trauma, emotional trauma, physical trauma;

    e.stated that since being in Australia the PVA has been able to speak and confront family members here in Australia and in Fiji about what she (and two other female cousins) went through, causing disputes and anger from the perpetrators and their families who did nothing about it. The PVA claimed that if she went back to Fiji her life will be threatened as she has become a whistle blower for the abuse and sexual violence done against her, her cousins, and other women in Fiji. Her family has not accepted her stand on calling out the perpetrators, such that her life and those of the other applicants will be threatened, if she goes back to Fiji;

    (b)an undated statement from the husband, in which he referred to the family’s leap of faith that brought them to Australia and the hope of raising their daughters in a safe secure environment and said that leaving Fiji was not an easy decision, influenced by getting the PVA out of a place that reminded her of her trauma;

    (c)an undated statement from [Ms A], a cousin of the PVA and to who the PVA had disclosed that she had been attacked and raped by two men whom she did not know. The cousin took the PVA to a police station to report the incident but could not persuade her to go inside;

    (d)an undated statement from [Mr B], the father of the PVA who migrated to Australia with the PVA’s stepmother in 2013. He believes that people like his daughter and many others who have suffered similar abuse in silence at the hands of male predators in Fiji is really due to societal and cultural toxicities being tolerated and treated as normal in the Fijian patriarchal society; and

    (e)a copy of the decision of the Tribunal (as previously constituted) on 30 November 2022.

    The hearing: supporting documents and oral evidence

29. The applicant gave the following oral evidence.

30. The PVA prepared the protection visa application. The husband works in [Town 5] in a [work] team on a fly-in/fly-out rotation. The family lives in [Town 3]. The PVA was 23 when her mother passed. Her father and stepmother reside in Perth, Western Australia, after being sponsored to be [an occupation 2] in Sydney, New South Wales. Her sister, who is [an occupation 4], lives in Perth as well, having travelled with her father. A maternal aunt lives in Sydney, New South Wales. Her brothers reside in Fiji, one in [Town 2] (he works in the [Employer 2]) and one in [Town 1] (he [works in the Employer 3]). One brother studied in Perth, Western Australia for about two years.

31. The PVA is from [a Village]. Her mother was from Vanua Levu. Only distant relatives remain in the father’s and mother’s villages, and the PVA is hardly in contact with them. The PVA grew up in [Town 1] and moved to [Town 2] to train as [an occupation 1] at the age of nineteen. The PVA undertook one semester of university, studying [Subject 1], but dropped out for financial reasons. She started work at the age of twenty.

32. Growing up, the PVA’s family was not political. She was never political. The family are Christians. Her father has been [an occupation 2] since the PVA was a young teenager. The PVA was twenty when she met the husband in [Town 2], where the husband had been born. They are both Fijian Native, though the husband’s paternal grandfather was [Ethnicity]. The husband has no connection with his mother’s village. The husband was studying to be [an occupation 3], and he had under 100 hours to complete his study but stopped in 2013 because he married and because of financial pressures. They had two children by then, who attended public schools. After he stopped studying, the husband stayed home because they could not afford a nanny for the children if they both worked.     

33. The PVA’s father returns to Fiji for family and religious events. The PVA’s sister returns to Fiji for family events. The Tribunal acknowledged that as [an occupation 1] the PVA had travelled to [Country 1], Australia, and [Country 2].

34. When the Tribunal asked why the PVA made the protection visa application in November 2017, the PVA referred to the then upcoming Fijian elections in 2018. Elections bring up bad memories for her and she did not feel safe and felt vulnerable and mentally unwell as she had been the victim of an attack during times involving a change of government. Politics did not affect her directly.

1. The Tribunal acknowledged that the PVA had told the delegate about what had happened to her during what she had described as the chaos of a coup d’état. The PVA said she was sexually molested by a police officer when she was maybe [Age] during the coup in 2000 and a victim of rape when she was already [an occupation 1] during the coup in 2006. She is not a politician and not public about her opinions of the Fijian governments but believes that the chaos and corruption of the Fijian government contributed, and she has no trust in the police system in Fiji.

2. In 2000, as her parents had to work, the PVA was staying with extended maternal family in [Town 1]. The policeman who assaulted the PVA was a close family friend. There was one assault and she discussed it with her cousins. They had similar experiences with older male cousins.

3. In 2006, the PVA was living in [Town 5]. She had been heading back from a Sydney flight and had been dropped off at home after it was dark. The attack happened in her driveway. The PVA spoke to the same cousins she had spoken to before, as they had a close relationship, but no adults. One cousin died after she turned twenty-one. She had been a victim a rape and although it had been reported to the police, the report was withdrawn when the drug-dealing perpetrator threatened the family. One cousin has moved to [Country 6], finishing her [Subject 1] degree.

4. In addition to not feeling safe because of the upcoming election, the PVA felt that she could not access any family support. Her marriage was difficult because of her trauma. She had told her husband what had happened, and although he tried his best, he did not know how to deal with the information or assist her.  

5. When the Tribunal asked if the PVA feared returning to Fiji in 2024, the PVA said she feared returning now a lot more than before. She cannot consider taking her children back to Fiji, because they would be subjected to what is happening back in Fiji. Whilst Fiji has a democratically elected coalition government, young children are being murdered, there are a lot of drugs and school students have become victims of drugs. It is out of control and children at school are not safe from the drug dealing. The people who take drugs are a threat to other children and there has been an increase in the violence against women. When the Tribunal raised that the drug takers would not be targeting the PVA or her children because of their race, religion, nationality, membership of a particular social group or political opinion, the PVA said the children were vulnerable as children, and they would be attacked for money.

6. When the Tribunal repeated that what the PVA feared was the violence that might come from those people who take drugs, the PVA agreed. When the Tribunal suggested that was a risk faced by the Fijian population generally, the PVA said that it was mostly women and children, because they do not have voices in Fiji, and they are physically weaker. People see selling drugs as a job to raise money because of their desperation and it is prevalent.

7. When the Tribunal suggested that state protection would not be withheld, the PVA said there was a lot of corruption in Fiji. She referred to a drug bust in [Town 2], and a person referred to their connections in the police force who turn a blind eye to the distribution of drugs (although he had been arrested). 

8. When asked what she feared from the violence of the drug dealers and the police, the PVA said because of her personal experience, she did not know who was good and she does not know if she could trust the police officers if something happened. She fears that the police officers will not protect her, but they will mock her, and that they are unable to protect women and children from the violent drug takers.

9. When the Tribunal referred to the claim as an enemy of the state because of Fiji’s instability in the protection visa application, the PVA said her claim had been that she believed she would suffer because of the 2018 political instability. Now her claim is the ongoing situation in Fiji, and the fact that things have become worse for women in Fiji.

10. After the Tribunal provided the country information below in response to a claim regarding her political opinion, the PVA said she did not have a direct comment in response but said her claim is what happened in Fiji. Even with the new government, after a peaceful election, they have not done enough to change anything and in fact crime has increased because of drugs.

11. When the Tribunal referred to the economic claim in the protection visa application and that there is no agent of harm and it applies to everyone in Fiji, the PVA said she did not know who to trust due to corruption. Returning to Fiji would be risky for her family of six, and as the adults would both have to work, the risk is to the children on the streets. It comes down to what people are doing to survive, including the selling of drugs. When the Tribunal said with her work history in Fiji and Australia, and her husband’s work history in Australia they both would be able to find jobs in Fiji, the PVA said so many university graduates do not have jobs in Fiji. There is a high level of desperation. The quality of life is reduced, being subjected to life-threatening violence. The PVA said she had family members who were selling drugs for survival.

12. After the Tribunal provided the country information below in response to the economic claim, the PVA said in Fiji the grass roots level was never asked how they were economically surviving and so questioned the data in the country information report.

13. After the Tribunal provided the country information below in response to the security situation, the PVA said that in 2022 there was a lot of corruption and drugs were under the radar and no-one knew about it. Unemployment is high now and members of her family, despite trying, cannot get jobs. The Tribunal noted that in 2023 the overall unemployment rate was 4.3% and in 2022, it was 4.5 per cent (down from a peak of 4.7 per cent in 2021).[9] The PVA said it was forecasted to be 5% in 2024.[10] The PVA acknowledged that there was no agent of harm, but the harm was to the quality of life.

    [9] ‘Unemployment, total (% of total labor force)’, The World Bank, undated, accessed 18 June 2024, 20230712125355; see also Fiji - unemployment rate 2004-2023 | Statista.

    [10] See Socioeconomic Indicators - Fiji | Statista Market Forecast.

14. The PVA said she experienced mental torture as a child, which has affected her husband and her children. The harm is the mental torture of what is happening and the fact that her children would always be in danger because of people selling drugs and the corrupt police, where she does not know who is the good or the bad cops, where women and children reporting become victimized by the police.

15. The PVA said the country information paints a wonderful picture of how the police protect Fijians, but that was not her experience in Fiji. On the ground, the people experience the opposite. A Police Commissioner was jailed with the former Prime Minister (for an abuse of office[11]). Fijians know who is corrupt but not many people report corruption because culturally people do not report on their superiors. When asked if she would now report offences to the police if she returned to Fiji, the PVA said she is not as confident as she would be here. A police officer’s wife has been beaten by her husband, and she shared video and made calls to the police but they have done nothing saying it is her fault. Not even the Women’s Crisis Centre has intervened. She does not trust the system. The Tribunal drew a distinction between a country’s response to domestic violence to its response to generalised violence. The PVA said it was due to the fact that it was a woman, a person who is vulnerable, asking for help and there were no active bystanders.

    [11] See Jail term for former Fijian PM Bainimarama and suspended Police chief Qilio | PINA.

16. After the Tribunal provided the country information below about violence against women, the PVA asked what happens when it is the police who are violent. The PVA said police officers were committing crimes, which affected her trust in them. In January 2024, there were 252 reported crimes against women (which would include domestic violence cases), as reported by the Acting Police Commissioner, out of a population of about 940,000.

17. The PVA stated that in 2015-2020, 400 criminal charges were laid against Fiji police officers and military officers, sixteen were for rape and two were for murder. There were also 100 charges of assaults. The Tribunal noted that the officials were being charged.  

18. The Tribunal questioned whether the drug dealers would harm the applicants for the essential or significant reason of their race, religion, nationality, membership of a political social group or political opinion or whether it was a risk faced by the population generally. The Tribunal also queried whether state protection would be withheld for the same reason and whether the state police can provide effective state protection. The PVA said as a victim of sexual assault twice, she feels she is always in fear of being harmed and her life is being threatened. She cannot take it away. The police are there to help people, but for herself there is no belief that the police would be able to arrive in time to prevent assaults taking place. There is no justice or support for women in the police system, to protect her as a woman and her children.

19. When the Tribunal referred to her raising her previous sexual assaults, the PVA said it had caused trouble within the family. The cousin in [Country 6] confronted the perpetrators in the family of her assault and the PVA told her family of her experience as a teenager. They were shocked, and so it has become general knowledge in family. Her male cousins, the perpetrators, labelled her as ‘asking for it’ and called and told she was causing drama within the family. She thinks the abuse continues with the family. They said they would harm her if she was in Fiji,  but not being specific about such harm but the PVA thinks they would hurt her children.

20. The PVA does not where the police officer who hurt her currently is or whether he is still a police officer; the last time she knew he was in [Town 1]. The last time her family mentioned him was in 2013.

21. When the Tribunal mentioned that the reason for leaving Fiji was to protect her children from the abuse culture she experienced as a direct result of political instability, the abuse of power and corruption in Fiji, in the submissions before the Tribunal, the Tribunal accepted that the police officer who had assaulted her had abused his power. In relation to the later sexual assault, the PVA said it was due to lawlessness after a lot of people escaped prison during the coup d’état, and with the corruption and violence within the police, there were not enough police officers to look for the escaped prisoners. The PVA said the police failed to protect her.

22. When the Tribunal suggested that the main reason she did not take the matter to the police, was because she had heard the men had been recaptured, the PVA said it was because she had anxiety from her previous incident. She felt disgust and shame when sitting outside the police station, and everyone in the station looked like that man who had hurt her as a teenager. Later she saw a news report that two escapees had been recaptured, and she recognised the face of one of the men as one who had assaulted her in the driveway, and she let it go and buried the memories. She does not have any knowledge of where that man is now.

23. Last year, a Fijian man moved to [Town 3], and he looked like the perpetrator. He worked in the [workplace] and he mentioned he was from Vanu Levu and he brought up a person’s name as a cousin that had been in the police report. He subsequently showed her a picture and it was the perpetrator. He said his cousin is in Fiji and has been released from jail.

24. As to her fear of the increase in HIV+ cases, this also stems from the drug takers who may assault people. One article the PVA provided says the COVID-19 curfew compounded dangers faced by women in abusive relationships.  When the Tribunal said the PVA is not at risk of domestic violence, she fears danger because of the drug epidemic, the PVA says she fears violence from extended family members in Fiji. The Tribunal suggested she would not be living in the same household, and queried whether she feared violence for calling out certain members as being sexual predators, the PVA said if they returned to Fiji those family members would live twenty minutes away. When the Tribunal raised returning to [Town 2] instead of [Town 1], the PVA said she had nothing to go back to in [Town 2]. She had lived there when she worked. She cannot live with her brother because he lives with his wife and her family. When the Tribunal said having lived in [Town 2], could she not live there again, the PVA said it was too expensive and with the cost of living she would not be able to support her family at all. She would like to live in a place where she is not reminded of the violence she experienced.

25. The thought of going back to Fiji brings the PVA a lot of stress. Fiji is not home for her, she does not feel safe there.

26. When the Tribunal raised excerpts of the country information below regarding health facilities in Fiji and noted that there was no agent of harm or discriminatory withholding of services, the PVA commented that there is no awareness of the services in Fiji. The [Employer 1] picked out changes in her behaviour and looks after the sexual assault, and after what happened to her in Sydney, she revealed what had happened and her employer sent her to be counselled through the union. However, it was not taken seriously and there were no further referrals. In Fiji, it is not the same as in Australia. She is undertaking counselling in Australia and is working as [an occupation 5] in [Town 3].

27. The representative added that it is an ongoing situation for women in Fiji, and as a victim, the PVA does not know what will happen if she goes back to Fiji.

    Country information

    Political Opinion

28. Since the protection visa application was made, the political situation and treatment of those in opposition to the former regime of Frank Bainimarama has significantly changed, particularly, but not only, as a result of the outcome of the December 2022 election. This change occurred after the Department of Foreign Affairs and Trade (DFAT) Report earlier in 2022.

29. Specifically, on 14 December 2022 voters went to the polls in a general election to select fifty-five members of parliament. Prime Minister Voreqe (Frank) Bainimarama’s FijiFirst Party failed to win a majority, ending his 16 years in power.[12] FijiFirst won the popular vote (42.5 per cent); however, it only won 26 seats, just short of the 28 needed to form government.[13] The new Prime Minister, Sitiveni Rabuka of the People's Alliance (PA), leads a three party coalition that includes the Social Democratic Liberal Party (SODELPA) and the National Federation Party (NFP).[14] Rabuka instigated both 1987 coups and served as Prime Minister between 1992 and 1999.[15] His coalition holds a slim majority in parliament.[16] Despite some irregularities, international observers assessed the electoral process as being free and fair overall.[17]

    [12] ‘Fiji’s new politics', Interpreter, The (Lowy Institute for International Policy), 17 January 2023, 20230619092820; 'Fiji: A chance to stop political history repeating', Interpreter, The (Lowy Institute for International Policy), 14 February 2023, 20230317105123.

    [13] ‘Cautious Optimism for Fiji’s Coalition Government', Australian Institute of International Affairs (AIIA), 08 March 2023, 20230619104244; ‘Fiji elections 2022: Bainimarama loses parliamentary majority as count finalised’, The Guardian, 18 December 2022, 20221229084208.

    [14] 'Fiji - In brief', Economist Intelligence Unit, n.d., Accessed 19 June 2023, 20230619093756.

    [15] 'DFAT Country Information Report Fiji', Department of Foreign Affairs and Trade, 20 May 2022, p.16, 20220520095336.

    [16] ‘Fiji’s new politics’, The Interpreter, 17 January 2023, 20230619092820.

    [17] 'Freedom in the World 2023 - Fiji', Freedom House, 31 August 2023, 20230831112859; 'Country Reports on Human Rights Practices for 2022 - Fiji', US Department of State, 20 March 2023, p.11, 20230322095436.

30. There has been no significant political unrest or deterioration of government functions since the Rabuka government was elected.[18] The transition of power has been peaceful, with the military so far refusing to intervene.[19]

    [18] 'Fiji 20230621135833 - Country Information - Political Update', Department of Foreign Affairs and Trade, 02 August 2023, 20230803112036.

    [19] ‘Can Fiji keep its democracy in 2023?’, East Asia Forum, 3 February 2023, 20230712114936; ‘The number behind Fiji’s coup culture’, Australian Strategic Policy Institute, 1 February 2023, 20230712115112.

31. The current political climate is characterised by a power struggle between the new prime minister and the former prime minister.[20] The FijiFirst party wields a similar level of political influence and power to that of an Australian parliamentary opposition.[21] In February 2023, former Prime Minister Bainimarama was suspended from parliament until 2026 after giving a divisive speech in which he criticised Prime Minister Rabuka and called for the military to intervene.[22] In March 2023, he resigned from parliament (but remained leader of the FijiFirst Party)[23] and in May 2024 was sentenced to one year in jail after interfering in a police investigation.[24]

    [20] History’s Shadow Looms Over Fiji', Diplomat, The, 02 February 2023, 20230605132913; 'Coups and rumours of coups in Fiji', Australian Strategic Policy Institute, 05 June 2023, 20230619094006; 'Former Fiji PM Bainimarama arrested, charged with abuse of office', World Socialist Web site (WSWS), 15 March 2023, 20230619094205.

    [21] 'Fiji 20230621135833 - Country Information - Political Update', Department of Foreign Affairs and Trade, 02 August 2023, 20230803112036.

    [22] ‘In Fiji, Bainimarama Suspended From Parliament Until 2026', Diplomat, The, 28 February 2023, 20230605132703; ‘Former Fiji prime minister Frank Bainimarama pleads not guilty to abuse of office’, The Guardian, 10 March 2023, 20230317103545.

    [23] ‘FIJI'S FORMER PRIME MINISTER FRANK BAINIMARAMA RESIGNS FROM PARLIAMENT, WILL NOT QUIT POLITICS’, ABC, 8 MARCH 2023, 20230712115333.

    [24] Fiji's former prime minister Frank Bainimarama sentenced to one year in jail after interfering in police investigation - ABC News on 9 May 2024.

32. In March 2023, the Australian Institute of International Affairs (AIIA) stated that people who were deported, threatened, or forced to leave Fiji for speaking out against the former FijiFirst government are being granted permission to return, and are doing so.[25]

    [25] 'Cautious Optimism for Fiji’s Coalition Government', Australian Institute of International Affairs (AIIA), 08 March 2023, 20230619104244.

33. In August 2023, DFAT stated that it was not aware of any reports of former Prime Minister Bainimarama or those loyal to him or his party pursuing Fijian nationals who publicly opposed him or his party since the change of government in December 2022.[26] DFAT further noted that it was not aware of any reports of the Republic of Fiji Military Forces pursuing nationals who publicly opposed former Prime Minister Bainimarama or his party since the change of government in December 2022.[27]  

    Economy

    [26] 'Fiji 20230621135833 - Country Information - Political Update', Department of Foreign Affairs and Trade, 02 August 2023, 20230803112036.

    [27] 'Fiji 20230621135833 - Country Information - Political Update', Department of Foreign Affairs and Trade, 02 August 2023, 20230803112036.

34. According to the DFAT Country Information Report Fiji (20 May 2022):

    [2.7] The World Bank defines Fiji as an upper-middle income country. Fiji is one of the largest economies in the Pacific region, but about a quarter of the size of the next largest, Papua New Guinea. Its per capita gross domestic product (GDP) is much higher than most Pacific neighbours’.

    [2.8] Tourism accounted for about 40 per cent of the pre-COVID-19 economy; the pandemic caused significant disruption...

    [2.9] About 30 per cent of the population was living in poverty in 2019, according to World Bank data, but estimates of poverty rates vary and the full impact of the COVID-19 pandemic is not known. According to the International Labour Organization (ILO), subsistence farming and kin-based wealth redistribution leads to a lower rate of extreme poverty than might otherwise be expected.

    [2.10] Corruption is not a significant problem. A 2021 Transparency International study found 62 per cent of Fijians believe politicians are corrupt and 61 per cent believe businesses obtain government contracts through corruption. However, only 5 per cent of Fijians reported paying a bribe to obtain a service in the past year, the lowest by far of the Pacific countries studied. An anti-corruption commission exists and corruption prevention is covered as part of the school curriculum. Overall, the day-to-day risk of corruption is low.

    Security situation

1. According to the DFAT Country Information Report Fiji (20 May 2022):

   [2.34] Fiji is generally stable and secure. The most recent elections in 2018 were orderly and free from violence. Crime rates, especially for violent and organised crime, are generally low. The risk of terrorism is low. Organised crime exists in Fiji, but it is not large-scale and is unlikely to affect people’s day-to-day lives. Some alcohol-related street violence occurs. Domestic violence is a serious problem... Accusations of police violence are commonly reported and regularly investigated...

   [5.6] The Fiji Police Force (FPF) is a national police force that covers the whole country. The US Department of State Overseas Security Advisory Service 2020 Crime and Safety Report assesses Fiji police as ‘professional’ and notes recent improvements in training and accountability. It notes that police may not be based in vehicles and may not arrive in time to disrupt crimes in progress but assesses that ‘victims of crime can expect fair treatment with dignity’.

   [5.7] Police are generally well-resourced by the Government and receive funding and training from overseas aid partners. The police are, in general, disciplined…Policing is conducted on a community policing model and police are generally actively engaged with the communities they serve.

   [5.8] Corruption in the FPF is reported, but DFAT understands that it is not widespread. There are some allegations of corruption and DFAT is aware of pockets of corruption that have later been exposed and investigated. Complaints about the FPF are made to the Human Rights and Anti-Discrimination Commission…

   [5.10] The Fiji Police Force overall has the capacity to protect individuals from societal harassment, discrimination, and violence, and police are usually effective in carrying out their role in day-to-day crime detection, investigation and prevention.

   Violence against women

2. According to the DFAT Country Information Report Fiji (20 May 2022):

   [3.53] Police protection is available but not consistently. Some police stations do not have the equipment or transport to deal effectively with cases of gender-based violence... Women who seek help from advocates (for example, the FWCC Centre runs a hotline) may receive more assistance.

   [3.54] A magistrate can issue restraining orders. These orders operate similarly to apprehended violence orders in Australia, with conditions that aim to protect a person from assault, threats, intimidation, ‘abusive, provocative or offensive’ behaviour or the procurement of those offences by another person. These orders are enforced by police and provide some protection.

   Health

3. According to the DFAT Country Information Report Fiji (20 May 2022):

   [2.11] Healthcare is generally available for those who need it. Quality is better in urban areas and may be basic in rural areas, especially the outer islands. Smaller communities might have access to basic healthcare facilities known as ‘nursing stations’ or ‘health centres’, the latter staffed by a doctor. Specialist healthcare is generally available, including cardiology, oncology, radiology, and maternal health, particularly in large hospitals. Medication availability varies and the range of medications available in Fiji is less than in Australia. Equipment or specialist treatment facilities, for example for chemotherapy, are sometimes lacking. Some facilities are old and not well-maintained, and staff-to-patient ratios can be poor.

   [2.12] Healthcare is free to the patient, but an increasing number of people are taking out private health insurance that allows them access to elective surgeries and cosmetic surgery available outside the public system or overseas.

   [2.13] The law provides for public mental healthcare but, in practice, it may not be available. Some support is available from nursing stations, health centres, general practitioners and hospitals. A public psychiatric hospital, St Giles, is located in Suva. Sources told DFAT there was an inadequate number of mental health professionals to meet demand. Telephone counselling and mental health CSOs provide services, and online resources from Australia and New Zealand might be used by Fijians. Drug and alcohol services are available at St Giles. The US Department of State 2021 Human Rights Report describes St Giles as ‘underfunded’. Sources told DFAT that facilities and treatment are basic and medication might be unavailable.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Criteria for protection visa

4. 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.

5. 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.

6. 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).

7. 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.

8. 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.

   Applicant’s responsibility

9. Section 5AAA of the Act makes clear that it is the applicant’s responsibility to specify all particulars of a claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of their claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist in establishing, the claim.

10. It is well established that the Tribunal is not required to accept uncritically any, and all allegations made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347 at 348).

    Mandatory considerations

11. 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.

    REASONS AND FINDINGS

12. The issue in this case is whether the PVA is either a refugee or a person who meets the criterion for complementary protection. There are also indirect claims on behalf of the female children which arise from the evidence before the Tribunal.

13. If the PVA is such a person, the Tribunal finds that the remaining applicants are each a member of the same family unit as a person who is a refugee or meets the criterion for complementary protection because they are the husband and children of the PVA respectively. If the female children are such persons, then the Tribunal similarly finds that the remaining applicants are each a member of the same family unit as a person who is a refugee or meets the criterion for complementary protection as the parents and siblings respectively.

14. For the following reasons, the Tribunal has concluded that the decisions under review should be affirmed.

15. The PVA, the husband and the three eldest children travelled to Australia on Fijian passports and claim to be Fijian citizens. The delegate had no concerns about their claimed identity or nationality, and there is nothing before the Tribunal which raises a concern. The youngest child was born in Australia. As the child of parents who are Fijian citizens, she is entitled to apply for registration as a citizen of Fiji by operation of s 8(1) of the Citizenship of Fiji Act 2009, and based on the evidence before the Tribunal there is nothing to suggest that the youngest child is entitled to citizenship of Australia or any other country.[28] As such, the Tribunal finds the applicants are nationals of Fiji, which is also their receiving country for the purposes of refugee and complementary protection assessments.

    [28] CITIZENSHIP OF FIJI ACT 2009 - Laws of Fiji accessed 6 December 2024. This had also been noted in the previous decision, see 1923017 (Fiji), 30 November 2022, (Member P Katsambanis) at [124].

    Do the applicants satisfy the refugee criterion for protection?

16. The Tribunal considers the PVA to be a credible witness, because of her ability to clearly articulate her life in Fiji and Australia and her fears about returning to Fiji during the hearing.

    Past Harm

17. The Tribunal accepts that the PVA experienced two significant traumatic experiences in Fiji, based on her evidence before the delegate in relation to the later incident and in the October 2022 submissions and before this Tribunal in relation to both.

18. The first occurred when the applicant was about [Age] during the 2000 coup d’état in Fiji, when in the privacy of an extended family member’s home in [Town 1], she was on one occasion indecently assaulted by a family friend who was a police officer.

19. This trauma was not before the delegate. The Tribunal is not satisfied that the applicant does not have a reasonable explanation for the evidence of this traumatic experience not being presented before the delegate’s decision was made, because of the nature of the incident, the confusion and shame which can arise from such an experience and because the PVA did raise the second trauma during the delegate interview which she may have reasonably viewed as sufficient to demonstrate that she is a survivor of sexual trauma in Fiji. As such the unfavourable inference required by s 367A of the Act does not arise.

20. The second occurred when the PVA was about [Age] years of age in [Town 5] during the 2006 coup d’état in Fiji, when she was returning home from work. She was raped by two men in her driveway. She subsequently recognised one of the men from a news report as being (by then) a recaptured escaped prisoner. The Tribunal also accepts that this sexual assault resulted in a pregnancy, which resulted in a miscarriage on a work trip for the PVA to Sydney.

21. The Tribunal accepts the PVA’s cousin’s written statement that the PVA had disclosed to her that she had been attacked and raped by two men whom she did not know, and that the cousin took the PVA to a police station to report the incident but could not persuade her to go inside.

22. The Tribunal also accepts that the PVA in Fiji was [an occupation 1], having joined [Employer 1] on 10 July 2006, based on their letter of 23 November 2017, and that as [an occupation 1] the PVA had travelled to the Australia and returned to Fiji on multiple occasions between August 2005 and October 2017, and in particular travelled between Australia and Fiji repeatedly after the sexual assaults in 2006, based on the PVA’s evidence and the movement records.

23. The Tribunal finds that the PVA’s father and stepmother moved to Australia in 2013, based on the father’s written statement. The Tribunal accepts that the father was [an occupation 2] who was sponsored to travel to Australia for work, and that the PVA’s father returns to Fiji for family and religious events whilst the PVA’s sister returns to Fiji for family events, based on what the PVA said during the hearing.

24. The Tribunal accepts that the PVA wrote the protection visa application, based on what she said at the hearing.

    Claim of possible coup d’état

25. In the protection visa application, the PVA had stated that they left Fiji due to the fear and uncertainty that threatened their will to survive. The Tribunal accepts the PVA’s statement in the protection visa application that there were no physical threats to her or her family at the time of the application (November 2017). The Tribunal also accepts that the PVA’s fear was psychological and emotional from the effects of the coups and chaos in 2000 and 2006 and the fact that the family was bracing for what would happen next, as stated in the protection visa application.

26. The Tribunal accepts the PVA made the protection visa application in November 2017, because she feared the then upcoming Fijian election in 2018 and believes that the chaos and corruption of the Fijian government during the last two coups d’état contributed to her assaults, based on her evidence at the hearing. Based on this, the Tribunal finds that she feared another coup d’état and the ensuing chaos because of her previous experiences of coups. Based on the country information which the Tribunal accepts, there has been another election in Fiji since the PVA arrived in Australia for the last time (in 2022), another coup has not eventuated, and Fiji currently has a democratically elected coalition government, which the PVA accepted at the hearing. The Tribunal finds that there is no real chance of harm to the PVA from a coup or election violence in the reasonably foreseeable future if she returns to Fiji, because it accepts the country information that Fiji has a democratically elected coalition government and there has been no significant political unrest or deterioration of government functions since the Rabuka government was elected in 2022.

    Claim for political opinion

27. In the protection visa application, the PVA had claimed harm because of her political opinion against the [then] Fijian government. In the protection visa application, the PVA had also claimed that her applying for this visa makes her an enemy of the state because of her opinion about its instability. She also claimed that she will be discriminated against by the  government if she goes back to Fiji and may be victimised because of her opinion of their instability and inability to provide the best for its people.

28. The Tribunal finds, based on the PVA’s statements at the hearing, that she is not and has never been a political person, that politics did not affect her directly, that she is not public about her opinion of the Fijian government, and that her claim is about the ongoing situation in Fiji. The Tribunal also accepts the country information above about the current political situation in Fiji. At the time the PVA made the protection visa application, the government she was referring to in the application was that of the former Prime Minister Bainimarama, and as that government is no longer in power the Tribunal rejects that there is a real chance of harm because of her opinion as it its instability and inability to provide the best for its people. The Tribunal also rejects that there is a real chance of harm because of the PVA’s opinion as to the current government’s performance, because of its findings that she is not political and is not open about her opinion of the government, and the accepted country information that Fiji has a democratically elected coalition government and there has been no significant political unrest or deterioration of government functions since the Rabuka government was elected in 2022.

29. The Tribunal also finds that there is no real chance of harm from Prime Minister Bainimarama winning the 2018 election, as stated in the protection visa application, because it accepts that he lost the 2022 election and has now resigned from Parliament, with a subsequent jail term imposed based on the country information above which it has accepted. The protection visa application also referred to revelations of corruption in the then government, but the Tribunal accepts the country information that corruption is not a significant problem, although there are pockets of corruption that have been exposed and investigated, as evidenced by the accepted country information that the former Prime Minister Bainimarama in May 2024 was sentenced to jail after interfering in a police investigation, and the accepted information as raised by the PVA during the hearing that a former police commissioner was jailed for an abuse of office. The Tribunal finds that there is no real chance of harm because of revelations of corruption, because of the accepted country information that it is not a significant problem and pockets of corruption are exposed, investigated and former officials are jailed for interfering with police investigations or abuse of office.

30. The Tribunal also finds that the claim to be an enemy of the state was not raised in her October 2022 submission, nor in her June 2024 submission and when it was raised by the Tribunal during the hearing the PVA said her claim had been that she believed she would suffer because of political instability she anticipated in 2018. The Tribunal rejects the claim that the PVA is an enemy of the state because it was not pressed in the 2022 or 2024 written submissions nor at the hearing and because of the accepted country information that Fiji has a democratically elected coalition government, which is also different to the one in power at the time of the protection visa application.

31. The Tribunal finds that there is no real chance of harm in the reasonably foreseeable future because of the PVA’s political opinion as to the former or current governments or the fact that the PVA made the protection visa application, because she is not a political person, in fact even people who had openly opposed the former Prime Minister Bainimarama, which the PVA did not, are returning to Fiji according to the accepted country information, the fact that the enemy of the state claims is rejected by the Tribunal, and the accepted country information that Fiji has a democratically elected coalition government, there has been no significant political unrest or deterioration of government functions since the Rabuka government was elected in 2022, and whilst pockets of corruption are exposed, investigated and former officials are jailed for interfering with police investigations or abuse of office, corruption is not a significant problem.

    Economic Claim

100.   In the protection visa application, the PVA had said the family struggled to survive, referring to  increases in inflation, unemployment and an unequal distribution of job opportunities and scholarships by the [former] government. The Tribunal notes again that the government in power at the time of the protection visa application is no longer in power following the 2022 election and finds that if the PVA returns to Fiji it will be with her husband and children, based on how she discussed these matters during the hearing. At the hearing, the PVA stated said living in [Town 2] was too expensive and with the cost of living she would not be able to support her family.

101.   The Tribunal finds that there is no real chance of harm due to economic circumstances including the cost of living, inflation, unemployment or an unequal distribution of job opportunities and scholarships by the [former] government, because of the multiple trips to and from Fiji which the PVA made up to the last time she arrived in Australia and the evidence presented by the applicant in the 2022 and 2024 written submissions and at the hearing.

102.   At the hearing, when the Tribunal raised this claim because it was in the protection visa application, the PVA said in response that she did not know who to trust due to corruption and that if the family returns to Fiji both her and her husband would have to work, but there were people with university degrees and members of her family who were unable to find work, despite trying, and there is a high level of desperation. The PVA also said unemployment was high. Whilst the PVA questioned the data in the country information report because the people at the grass roots level were never asked how they were surviving economically, the Tribunal accepts that Fiji is an upper-middle income country and that corruption is not a significant problem, based on the report prepared by DFAT. The Tribunal also accepts that there was a peak in 2021 in the overall unemployment rate of 4.7%; in 2022 it was 4.5% and in 2023 it was 4.3%, with a forecast of 5% in 2024 based on the Statista report.

103.   The Tribunal finds that there is no agent of harm arising from the economic issues which the PVA discussed at the hearing, which the PVA accepted, and negative economic circumstances do not involve systematic and discriminatory conduct because there is no ‘deliberate behaviour on the part of the persecutor, rather than behaviour that is random or accidental’.[29]

[29] See s 5J(4)(c); SZTEQ v MIBP [2015] FCAFC 39 [72]. See also SZTIB v MIBP [2015] FCAFC 40 and BZAFM v MIBP [2015] FCAFC 41.

Claim to be Safe

104.   The PVA stated at the hearing that her claims now were about the ongoing situation in Fiji, claiming that things have become worse for women in Fiji and the children faced risk on the streets. The Tribunal accepts her statement during the hearing that as a survivor of sexual assault twice she feels she is always in fear of being harmed and her life is being threatened.

105.   The Tribunal accepts the statement in the protection visa application that the PVA just wanted her family to be safe and her children to get a chance at a successful future and the statement in the 2024 submissions made with the hearing invitation form that the PVA left Fiji as a result of her need to protect her children, who have a right to be safe from the violence and abuse culture she had experienced and which she believes was a direct result of political instability, abuse of power, and corruption in Fiji. She fears that in Fiji her children will suffer, not have a good quality of life and be subjected to sexual violence, domestic violence and drug abuse and the situation is worse in Fiji than when she left due to drug problems, an increase in HIV+ cases and violence against women resulting in death.

106.   The Tribunal accepts the husband’s written statement that the family undertook a leap of faith to travel to Australia in the hope of raising their daughters in a safe secure environment and that leaving Fiji was not an easy decision but was influenced by getting the PVA out of a place that reminded her of her trauma. The Tribunal accepts that the PVA has two daughters and one son born in Fiji and one daughter with whom she was pregnant when she travelled to Australia for the last time in October 2017 and who was subsequently born in Australia.

107.   When the Tribunal asked if in 2024 the PVA feared returning to Fiji, the PVA claimed to fear harm from those people who take drugs and may be violent, such that she fears returning to Fiji more now than at the time of the protection visa application. The PVA said that she cannot consider taking her children back to Fiji to be subjected to what is happening there, mentioning children being murdered or being subjected to drug dealing and attacked for money. She said that the people who take drugs are a threat to other children and there has been an increase in the violence against women.

108.   The Tribunal accepts, based on the articles provided by the applicant, that:

(a)almost half of children under the age of 14 have consumed alcohol and drugs and had sex, as revealed by a 2017 school health survey in Fiji;[30]

[30] Fiji study finds high drugs and alcohol use among young teenagers | RNZ News (25 July 2017).

(b)in 2021, there was a “concerning increase”, as reported by activists and non-governmental organisations, in violence against women and girls during the [COVID-19] pandemic in a country where rates of domestic violence were already among the highest in the world, because social isolation was increasing and intensifying violence inside homes;[31]

[31] ‘Crisis within a crisis’: Violence against women surges in Fiji | Women News | Al Jazeera (24 February 2021).

(c)Fiji is not immune to the challenges arising from the growth of the methamphetamine and ketamine markets and emergence of other synthetic drugs; in recent years, more young people, including schoolchildren, have been observed using methamphetamine, typically sharing one syringe among five people; and the number of people infected with HIV has risen in recent years, and though the causes are not clearly determined, they can be partly attributed to increasing drug use;[32] and

[32] Public health concerns rise as methamphetamine use increases in the Pacific (16 November 2023).

(d)Fiji's Minister for Home Affairs, Pio Tikoduadua, has highlighted the need for an aggressive, multifaceted response and a new drug enforcement bureau to tackle the country’s growing drug abuse problem. This fight must extend beyond law enforcement and include community prevention, rehabilitation support and better coordination between law enforcers and the community. Culturally appropriate education and community engagement from outside the government, as well as greater integration between all strategies, will also be critical for progress.[33]

[33] Seismic shifts coming for Fiji’s drug policy | East Asia Forum (29 April 2024).

109.   During the hearing the PVA referred to the increase in violence against women and girls in general terms, but the Tribunal finds that the country information provided by the PVA and accepted by the Tribunal referred to an increase in violence inside people’s homes during the pandemic, which pandemic has now ceased, although the Tribunal accepts domestic violence remains an issue in Fiji.

110.   Further, the Tribunal finds that the applicant and the husband have been married for seventeen years, based on the marriage certificate provided, and acknowledges there have been difficulties due to the sexual traumas outlined above and experienced by the PVA before the marriage, based on her evidence at the hearing. The Tribunal also finds that the PVA and the husband decided to move to Australia as a family and that they currently reside together in [Town 3], although the husband works on a fly in/fly out basis, based on the husband’s written statement and the PVA’s evidence at the hearing. There is nothing before the Tribunal which suggests domestic violence between the PVA and the husband or abuse of the children, and the Tribunal finds that whether the children will be the subject of sexual or domestic violence in their reasonably foreseeable future if they return to Fiji to be speculative. As noted in the previous Tribunal decision, the PVA acknowledged that any fears relating to domestic violence from any future partners of the children is highly speculative.[34] As such, the Tribunal finds there is no real chance of sexual or domestic violence against the children in the reasonably foreseeable future if the family returns to Fiji.

[34] See 1923017 (Fiji), 30 November 2022, (Member P Katsambanis) at [152]-[153].

111.   The Tribunal finds that there is no real chance of persecution from voluntarily taking drugs or in becoming HIV+ from drug taking, because there is no agent of harm. In relation to violence at the hands of the drug takers or dealers, the PVA claimed that it mostly happened to women and children, because they do not have voices in Fiji, and they are physically weaker. The Tribunal finds that the chance of harm from violence from drug takers or drug dealers of either the PVA or her children is not systematic & discriminatory, but rather random and can happen to either gender.

112. The delegate accepted that the PVA’s sexual assault in 2006 was random and opportunistic and did not believe that she was specifically targeted,[35] and there is nothing before the Tribunal to suggest otherwise. Although the PVA fears, as a survivor of sexual assault on two occasions, being harmed again, the Tribunal finds that the PVA repeatedly returned to Fiji between 2006 and October 2017 despite that fear, based on the movement records and the PVA’s evidence at the hearing. The Tribunal is not satisfied, taking into account her previous traumas, that the PVA has a real chance of being persecuted in the reasonably foreseeable future if she returns to Fiji by reason of domestic violence, drug dealers or takers or other people, because there is nothing which suggests domestic violence between her and her husband; the PVA repeatedly returned to Fiji after 2006 without incident; the statement in the protection visa application that there was no threat of physical violence and the fact that the chance of violence from drug dealers or takers or other people is random.

[35] And see 1923017 (Fiji), 30 November 2022, (Member P Katsambanis) at [127], stating the PVA confirmed that these two attacks were opportunistic in nature, and she did not believe there was any political motivation behind the attacks.

113.   The Tribunal notes that before the previous Tribunal the PVA made claims as to childhood abuse from her parents.[36] These were not detailed before the presently constituted Tribunal, and on the basis that the PVA’s mother has died, and her father and stepmother now reside in Perth Western Australia, as stated by the PVA at the hearing, the Tribunal finds that there is no real chance of harm in the reasonably foreseeable future if the PVA returns to Fiji on this basis.

[36] See 1923017 (Fiji), 30 November 2022, (Member P Katsambanis) at [74]-[76].

Claim of police violence and corruption

114.   During the hearing the PVA referred multiple times to police corruption and violence. The Tribunal accepts the country information above that corruption is not a significant problem in Fiji and that the Fiji police are professional, well-resourced, in general disciplined, corruption is reported but not widespread, including that pockets of corruption have been exposed and investigated. Further, the Tribunal accepts the country information that accusations of police violence are commonly reported and regularly investigated. The Tribunal acknowledges that when the PVA was [Age] she was indecently assaulted by a police officer but finds that there is no real chance of harm to the PVA from police corruption because of the country information that corruption is not a significant problem and that the fear of police violence against her in the reasonably foreseeable future does not involve systematic and discriminatory conduct but is general and random.

Claim of harm because raised past abuse

115.   In her written submissions of October 2022, the PVA claimed there was real chance of harm from family members who were the perpetrators of abuse against her cousins and their families who did nothing about the abuse as she has become a whistle blower for the abuse and sexual violence done against her, her cousins, and other women in Fiji. The Tribunal accepts that the PVA’s cousins had experienced abuse at the hands of extended family members, based on the October 2022 submissions and the PVA’s evidence at the hearing. The Tribunal is not satisfied that the PVA does not have a reasonable explanation as to why this claim was not before the delegate, because it accepts that the PVA has become what she refers to as a whistle blower whilst residing in Australia, based on the October 2022 submission and her evidence at the hearing and therefore the unfavourable inference required by s 367A does not arise.

116.   This claim was not, however, raised in the PVA’s written submissions of 10 June 2024. Further, the claim to fear violence from her extended family was only raised towards the end of the hearing before the presently constituted Tribunal. The Tribunal accepts that the PVA and her cousins raising their respective experiences within the extended family had caused trouble, resulting in some male members saying she was asking for it, with which the Tribunal disagrees, and they also said that she was causing drama within the family, which the Tribunal finds is exaggerated. When the Tribunal asked the PVA about the harm she feared if she returned to Fiji from those family members, she provided no particulars of feared harm to herself and only said she feared they would hurt her children, without further particulars.

117.   The Tribunal finds that there is no real chance of serious harm to the PVA from the extended family in the reasonably foreseeable future because this was not mentioned in the PVA’s written statement on 10 June 2024, the PVA did not specify the harm she believed that she would suffer during the hearing and the Tribunal finds this claim as to violence against her to be speculative.

118.   In the protection visa application, the PVA stated that she was living in [Town 1] until January 2006 and then lived in [Town 2] from January 2006 until 14 November 2017. At the hearing, the PVA said that she grew up in [Town 1] and moved to [Town 2] to train as [an occupation 1] where the husband was born but also referred to her address in 2006 as in [Town 5]. The Tribunal notes that [Town 5] and [Town 2] are both in the Ba Province of Fiji and [Workplace] is approximately 15 km from [Town 5].  On the basis of the protection visa application and the evidence at the hearing, the Tribunal finds that the applicant lived in [Town 1], until she moved to [Town 2] for [training], and she and the family lived in [Town 2], although the address where the PVA was living in 2006 was actually in [Town 5].

119.   The Tribunal finds that the PVA’s mother has died; the PVA’s father, stepmother and sister reside in Perth, Western Australia; a maternal aunt lives in Sydney, New South Wales and her brothers reside in Fiji, one in [Town 2] with his wife and her family (he works in the [Employer 2]) and one in [Town 1] (he [works in Employer 3]), based on the PVA’s evidence at the hearing. Further, the Tribunal accepts that only distant relatives remain in PVA’s father’s and mother’s villages, and the PVA is hardly in contact with them, based on the PVA’s evidence at the hearing.

120.   The Tribunal recognises that returning to [Town 5] may remind the PVA of the violence she experienced in 2006, as stated by the PVA during the hearing. However, the Tribunal finds that the PVA and her family would return to [Town 2] if they return to Fiji, as that is where the husband is from and that is where the PVA was living for over eleven years before coming out to Australia, and the place to which she returned from her multiple trips overseas due to work, but also finds that they would not be living with the PVA’s extended family because it accepts that the PVA would not live with her brother in [Town 2] because he lives with his wife’s family, based on what the PVA said at the hearing.

121.   The Tribunal finds there is no real chance of serious harm to the daughters from the PVA’s extended family in the reasonably foreseeable future if the family returns to Fiji, because it has found that the PVA and her family would return to [Town 2], not live with PVA’s extended family, the PVA is hardly in contact with distant relatives in the villages, it accepts the PVA is an advocate against family violence and has an raised awareness of the issue of family violence, the PVA did not specify the harm she believed that her children would suffer during the hearing nor from whom and the Tribunal finds this claim as to harm against the children in the future to be speculative.

Claim as to mental health

122.   In the protection visa application, the PVA claimed the threats were psychological and emotional. In the October 2022 submissions, the PVA claimed that Fiji does not have the resources to support the people who are suffering with mental and health issues as a result of sexual trauma, emotional trauma, and physical trauma. During the hearing, the PVA claimed that she had experienced mental torture as a child, there is mental torture regarding what is happening in Fiji and the fact that her children would always be in danger because of people selling drugs and the corrupt police. The Tribunal finds that there is no agent of harm in relation to the claimed harm to her mental health and no systematic or discriminatory conduct in the provision of services, even if it is not as good as may be provided in Australia, based on the PVA’s evidence at the hearing and the country information, which the Tribunal accepts, that healthcare is generally available for those who need it and that the law provides for public mental healthcare though it may not always be available.

Conclusion

123.   The Tribunal has carefully considered the claims for protection made in the protection visa application, in the 2022 and 2024 written submissions and at the hearing in June 2024, both individually and cumulatively. The Tribunal finds that the PVA and the husband have moved their family to Australia to obtain a better future for their children, on the basis of the Tribunal’s acceptance of their repeated claims in this regard and the fact that the PVA repeatedly returned to Fiji up until October 2017, based on the movement records and what she said at the hearing.

124.   For the reasons given above, the Tribunal finds there is no real chance of harm in the reasonably foreseeable future if the PVA or the family return to Fiji, because of possible coups d’état or election violence, the PVA’s political opinion, the past or current Fijian government, revelations of corruption, police violence or corruption, the fact that the PVA made the protection visa application, any unequal distribution of job opportunities and scholarships, economic circumstances, sexual violence, domestic violence or harm from the extended family or strangers, either individually or cumulatively.

125.   The Tribunal also finds for the reasons given above that there is either no agent of harm or no systematic and discriminatory conduct arising from the economic issues the PVA discussed at the hearing, voluntarily taking drugs or in becoming HIV+ because of drug taking or regarding the chance of harm from the violence of drug dealers or drug takers or other strangers, or for mental health reasons.

126.   For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s 36(2)(a).

Do the applicants satisfy the complementary protection criterion for protection?

127.   Having concluded that the PVA and the family do not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).

128.   The Tribunal finds that there are not substantial grounds for believing that there is a real risk the applicants would suffer significant harm as a necessary and foreseeable consequence of being removed to Fiji, because of possible coups d’état or election violence, the PVA’s political opinion, the past or current Fijian government, revelations of corruption, police violence or corruption, the fact that the PVA made the protection visa application, any unequal distribution of job opportunities and scholarships, economic circumstances, sexual violence, domestic violence or harm from the extended family or strangers. This is because the Tribunal found that the applicants do not face a real chance of serious harm because of these claims either individually or cumulatively, and so the Tribunal also finds the applicants do not face a real risk of significant harm (as per MIAC v SZQRB (2013) 210 FCR 505).

129.   The Federal Court has confirmed that the definition in s 36(2A) is framed in terms of harm suffered because of the acts of other persons.[37] As such, the Tribunal finds that there is no real risk the applicants will suffer significant harm as a necessary and foreseeable consequence of returning to Fiji arising from the economic issues the PVA discussed at the hearing, voluntarily taking drugs or in becoming HIV+ because of drug taking or regarding the risk of harm from the violence of drug dealers or drug takers or for mental health reasons because there is no agent of harm. 

[37] The language in ss 36(2A)(a)–(b) and in the definitions of the concepts in ss 36(2A)(c)–(e) all concern, and only concern, how a visa applicant might be treated by another person: GLD18 v MHA [2020] FCAFC 2 at [37].

130.   In the previous decision, the Tribunal wrote that it did not accept that the impact on the PVA’s mental health if she was to return to Fiji would be of the nature and extent that would constitute significant harm as defined in s 36(2A) of the Act.[38] Based on the evidence of the PVA at the hearing and the accepted country information, the Tribunal as presently constituted also finds the mental harm raised by the PVA does not rise to the level of significant harm as that term is exhaustively defined in s 36(2A) of the Act.

[38] See 1923017 (Fiji), 30 November 2022, (Member P Katsambanis) at [147].

131.   When the Tribunal repeated that what the PVA feared was the violence that might come from those people who take drugs, the PVA agreed. When the Tribunal suggested that was a risk faced by the Fijian population generally, the PVA said that it was mostly women and children, because they do not have voices in Fiji, and they are physically weaker.

1. The is no real risk of significant harm if the real risk is one faced by the population of the country generally and is not faced by an applicant personally (s36(2B)(c)). The natural and ordinary meaning of the exception in s 36(2B)(c) is that, if the Tribunal is satisfied that the risk is faced by the population of the country generally, as opposed to the individual claiming complementary protection based on his or her individual exposure to that risk, the provisions of s 36(2)(aa) are deemed not to be engaged.[39]

   [39] SZSPT v MIBP [2014] FCA 1245 at [11].

133.   In assessing the level of real personal risk to the PVA that further opportunistic and generalised incidents may occur to her as a necessary and foreseeable consequence of returning to Fiji, the Tribunal:

(a)accepts the country information that crime rates, especially for violent crime, are generally low but domestic violence is a serious problem. The Tribunal again accepts, based on an article provided by the applicant that 2021, there was a “concerning increase” in violence against women and girls during the [COVID-19] pandemic, because social isolation was increasing and intensifying violence inside homes, but repeats its finding that there is no real risk of harm to the applicant from domestic violence or from extended family members;

(b)repeats its finding that the PVA travelled between Australia and Fiji repeatedly after the sexual assaults in 2006, based on the PVA’s evidence and the movement records;

(c)repeats its finding that the PVA wrote the protection visa application. As such, the Tribunal finds that there is no threat of physical violence as a necessary and foreseeable consequence of returning to Fiji, based on what the PVA wrote in the protection visa application; and

(d)finds that there is no personal risk to the PVA from generalised violence in Fiji arising from the fact that the PVA is a survivor of sexual assaults in Fiji in 2000 and 2006, because the applicant did not experience differential treatment between 2006 after experiencing the later assaults and October 2017, a period of eleven years, based on the evidence of the PVA, whilst returning multiple times to Fiji; the finding that the PVA anticipated a coup in 2018 which did not eventuate; and the statement that there was no threat of physical violence in the protection visa application.

134. The Tribunal is satisfied that the risk of violence, generally and from drug users is one faced by the population of Fiji generally and is not faced by the PVA, the husband or the children personally. As such, the Tribunal finds that the danger of harm raised by the PVA is not personal and present,[40] and there is taken not to be a real risk that the applicants will suffer significant harm in Fiji by reason of s 36(2B)(c).

[40] Explanatory Memorandum at [67].

1. Having concluded that the applicants 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 applicants are persons in respect of whom Australia has protection obligations under s 36(2)(aa).

   CONCLUDING PARAGRAPHS

2. There is no suggestion that the applicants satisfy 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.

3. For the reasons given above the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations. Therefore, the applicants do not satisfy the criterion set out in s 36(2)(a) or (aa) for a protection visa. It follows that all the applicants are also unable to satisfy the criterion set out in s 36(2)(b) or (c) and cannot be granted the visa. Accordingly, the applicants do not satisfy the criterion in s 36(2).

   DECISION

138.   The Tribunal affirms the decisions not to grant the applicants protection visas.

Date(s) of hearing: 17 June 2024

Representative for the Applicant: Mr Parth Kaushikkumar Brahmbhatt

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.

…