2308186 (Refugee) - [2025] ARTA 1685

2308186 (Refugee) [2025] ARTA 1685 (2 July 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Citizenship

Tribunal Number: 2308186
Tribunal:General Member L Hill
Date:2 July 2025

Place:Brisbane
Decision:The Tribunal sets aside the decision under review and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant meets the following criteria:
·s 36(2)(a) of the Migration Act.

Statement made on 02 July 2025 at 11:12am

CATCHWORDS
REFUGEE – protection visa – Fiji – particular social group – LGBTQI – fears bullying, threats and self-harm – moderate risk of official and societal discrimination and violence – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5, 5H, 5J–5LA, 36, 65, 367A, 369, 499
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA [189] HCA 62
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

This is an application for review of a decision made by a delegate of the Minister on 6 June 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Fiji, applied for the visa on 4 February 2020. The delegate refused to grant the visa on the basis that the applicant was not a person in respect of whom Australia has protection obligations as provided for in s 36(2)(a) or s 36(2)(aa) of the Act.
The applicant appeared before the Tribunal on 29 May 2025 to give evidence and present arguments.
On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.
BACKGROUND
The applicant is [an age]-year-old male. He arrived in Australia [in] November 2019 on a Visitor (subclass 600) visa. He has provided to the Tribunal a copy of the biodata/biographical page of his Republic of Fiji passport.
Evidence before the Department
The applicant lodged his application for a protection visa with the Department of Home Affairs (the Department) on 4 February 2020.
In summary, the applicant claimed he is seeking protection and cannot return to Fiji. He stated that he left Fiji because of his political opinion and the economic hardship he faced. Arising from the military coups, he has experienced psychological harm. His mother was also unable to obtain work. He has not sought any help with his situation as he fears if he did, he would be abused, terrorised, physically abused and victimised. Nor did he try to move to another area within Fiji because the same law applies throughout the country. He stated that on return to Fiji he believes he will be persecuted and physically, mentally and emotionally abused. The authorities will not be able to protect him from the harm he fears as the authorities are puppets and do what the government tells them to do. Nor can he relocate within Fiji as he does not have the support, finances or resources to move to another area.
The applicant was not interviewed by the delegate of the Minister (the delegate).
On 6 June 2023, the delegate decided to refuse to grant the applicant a protection visa under s65 of the Act. The delegate considered the country information, and was satisfied that the applicant could express his political views in Fiji, within the limits of the law without being subjected to serious harm; and accordingly found that the applicant did not face a real chance of persecution for reasons of his political opinion. In relation to the applicant’s claims of economic hardship, the delegate considered the country information and found that they were not satisfied that the economic hardship the applicant would face amounted to significant harm. Consequently, the delegate found that the applicant was not a person in respect of whom Australia has protection obligations as provided under s 36(2)(a) or s 36(2)(aa) of the Act.
Evidence before the Tribunal
The applicant lodged an application for review, in relation to the decision to refuse to grant the protection visa, with the Tribunal on 9 June 2023. Attached to the application was a copy of the delegate’s refusal notification letter and decision record dated 6 June 2023.
On 6 May 2025, the Tribunal emailed the applicant and invited him to a video hearing scheduled for 29 May 2025. The applicant was asked to read and complete the enclosed ‘Response to hearing notice’ (notice) and return it to the Tribunal.
On 21 May 2025, the applicant emailed a completed and signed notice dated 21 May 2025. He confirmed that he would be attending the scheduled hearing and did not require an interpreter.
On 29 May 2025, the applicant appeared before the Tribunal to give evidence and present arguments. On 5 June 2025, the applicant provided further documents, that being text messages and videos as evidence of his relationship with [Partner A].
The Tribunal has considered the material before it, including the applicant’s claims and evidence set out in the application for a protection visa, his evidence at the hearing and the documents provided after the hearing. A summary of the claims and evidence are set out below.
Background
The applicant confirmed that he was born in [City 1] Fiji. He is of Fijian ethnicity and is a practising Christian (Methodist). At the Tribunal hearing, the applicant was asked about the details of his family in Fiji. He explained that he was raised by his biological mother’s sister (mother) and her husband (father). He does not have any siblings. His mother works as [an Occupation 1] at [Workplace 1] and his father works [at Workplace 2]. He speaks to his mother and father every day and occasionally speaks to his biological mother. In Australia, he resides with his grandparents, who are retired.
The applicant was asked about his education and employment details. He confirmed that he completed high school and [an Area of study 1] course. He also commenced a Bachelor of [Area of study 2] in Fiji but withdrew. He was asked why he withdrew. He stated that there were lots of issues in Fiji. People were finishing their [Area of study 2] degrees but were unable to find employment. In Australia, he has completed a Certificate 3 and 4 in [Area of study 3]. He has also applied to start a Diploma of [Area of study 2] in October.
The Tribunal also discussed with the applicant his previous travel history to Australia. It was noted that he had arrived and departed Australia quite a few times in the past, particularly around the Christmas period. The applicant confirmed this was correct. His travel coincided with the school holidays. During this period, he came to Australia to visit his grandparents. The applicant was asked whether he had experienced any problems exiting or entering Fiji during these visits. He stated no.
Claims for protection – sexual orientation
The Tribunal asked the applicant why he had applied for a protection visa. The applicant responded that he didn’t see a future in Fiji. There was a lot of political turmoil and crime rates were increasing. There is also a lot of discrimination, and he didn’t believe he would be able to obtain a steady job and income. These were some of the reasons why he had applied for protection.
The Tribunal discussed with the applicant that it must apply the criteria relevant to the grant of a protection visa to his case. He was asked how his reasons related to the criteria they had discussed at the beginning of the Tribunal hearing. The applicant responded that he is a gay person. He explained that this is also a reason for his application. He believes that if he returns to Fiji, he won’t be able to be his true self. He indicated that the reasons in his application were based largely on the last Fijian administration/government, however, there remains a lot of discrimination towards LGBTQI people in Fiji. His main fear is that if he returns, he won’t be able accepted. He further explained that those who are openly gay in Fiji are still bullied and threatened. He also recently read about a gay activist who committed suicide because he was bullied for who he really was. He indicated that he is not as strong as others, and believes if he were to come out, the chances of him doing something to himself, would be very high. He doesn’t believe he could take the threats and bullying and everything he will be subjected too.
The Tribunal asked the applicant why he had not raised his claims regarding his sexual orientation in his application for a protection visa. The applicant responded that he has a fear of not being accepted. When he applied, apart from his partner and a close cousin, no one else knew. He also explained that he really didn’t want to disappoint his family.
The Tribunal has considered s 367A which requires the Tribunal to draw an inference unfavourable to the credibility of the claim or evidence if it was not raised or presented before the primary decision was made, unless the Tribunal is satisfied that the applicant has a reasonable explanation as to why the claim was not raised, or the evidence not presented. The Tribunal has considered the explanations provided above and is satisfied that the applicant has a reasonable explanation as to why the new claims were not raised, and why the new evidence was not presented before the primary decision was made.
The Tribunal asked the applicant whether since his application he had discussed his circumstances with anyone including his grandparents, with whom he resides. The applicant explained that his grandmother is very traditional and conservative. It is not something she would accept easily. However, he believes her love for him supersedes everything and she is trying her best to accept what is best for him as her grandson. He was asked how his grandmother came to know he was attracted to men. He stated that his grandmother saw text messages that had been sent by his partner. This then led to the conversation. It was intense but it felt like something he needed to do. He had been holding it in and couldn’t keep it in anymore. He had this conversation with his grandmother earlier this year. He was asked about how his grandfather had reacted. He stated he is very accepting and doesn’t mind.
The applicant was asked if he had sought to connect with the LGBTQI community in Australia. He stated truthfully, he hasn’t. He is free to be himself. He described that at work he talks openly, and his colleagues don’t judge him. His colleagues know he is gay and has a partner in Fiji. He feels more free and more accepted.
The applicant was asked when he first became aware of his attraction to the same sex. He stated he believes it was in year 8. He started to have thoughts. In year 10, he had his first connection with someone. It was with a male friend at school. He explained that was when he truly realised who he was, and it answered every question he had about himself. He asked how long his connection with this male friend lasted. He stated until year 12. He then explained that just after high school, in [year], he met his current partner, [Partner A].
The Tribunal asked the applicant to describe his partner. The applicant stated that [Partner A] is Fijian. He is one year older than him. [Partner A] is his soul mate. They met when he was attending his first year of university. [Partner A] was studying a Diploma of [Area of study 4]. He was asked whether [Partner A] is employed. He stated he is in between jobs. He was previously working in [Occupation 2 for Workplace 3].
The applicant was asked how they maintain their relationship given they are living in two different countries. He stated that they talk every day. He was also asked about his time with [Partner A] prior to coming to Australia. He stated they would go out together, but people didn’t think they were a couple. People just thought they were friends. They tried to kept things low key. He was asked why; he want things to be keep “low key”. He stated it was the fear of persecution. At that time, the Prime Minister was saying that he would never accept LGBTQI people. He believes a statement was even made that if you were gay you should move to the Netherlands as Fiji wasn’t the place for you. That is why they thought that it was best to keep things as low key as possible to protect themselves.
The applicant was asked, given that [Partner A] remains in Fiji, has there been a change since the election of the new government. The applicant stated that [Partner A] had said nothing has changed. He has told [Partner A], now he is in Australia, they don’t have to pretend anymore, however, [Partner A] tells him that he is still in Fiji, and it is not governed by the same rules. This always reminds him that things haven’t changed in Fiji. Gay people still can’t go out and not be judged for who they are.
The applicant was asked about who in Fiji is aware of his circumstances and/or relationship with [Partner A]. The applicant stated that his biological mother knows, but his mother and father do not. He believes it would be very hard for his mother and father to accept. They are very religious, and out of respect for them, he feels that he should just keep this away from them. He described wanting to keep the peace between them all. He believes if they did find out they would be very disappointed. He believes this may be part of the reason he hasn’t been able to come out and express his full self.
The applicant explained that his biological mother was told about his circumstances by another aunty. An individual worked with his partner, [Partner A] at the airport and saw a text from him on [Partner A’s] phone. This individual then told his aunty who then told his biological mother. Late last year, his biological mother called him and said she knew, although she described it initially as coming to her via a dream. He later found out that this was not the case. He was asked what his biological mother said to him, when she called. He stated that all she said was that he knows what the situation is like in Fiji and that he will not be accepted. She told him to be careful about how he lives his life.
The Tribunal asked what he thought would happen if he returned to Fiji. The applicant stated that there are individuals and groups in Fiji that still hold a very traditional opinion/logic that gay people, LGBTQI people should not be part of society. He reads comments on Facebook, and it shows that people are not shy about their feelings about gay people. There are gay people, members of his community, that have been bullied to the point of suicide, brutally murdered or taken into custody and held responsible for things that never happened.
The applicant explained that he feels if he were to return to Fiji, and openly say he is gay, there will come a time, when he will become another statistic. He was asked whether he could go to the authorities for help. He responded that he had read about a transperson, who an activist for the LGBTQI community, and he was bullied and threatened online to the point that he committed suicide. Investigations occurred but no one was ever held responsible. He doesn’t believe the state would do anything, they wouldn’t care or provide him with any protection.
Claims for protection – political and economic
The Tribunal asked the applicant about his statements in his application that relate to his political opinion. He was asked if he had ever openly expressed his political opinion in Fiji. He stated that in Fiji he had conversations with people he knew in which he made it clear he wasn’t any way supportive of the administration that was in at that time. He was asked if he had ever protested in the past. He stated no. He was asked if had ever been detained or arrested in Fiji. He stated no. He further explained that in Australia he has protested by signing petitions.
The applicant was also asked about his statements in his application that the military take overs have caused businesspeople to leave and resulted in difficulties in obtaining employment. It was discussed with the applicant, that his statements were made at least five years ago and when the former administration was in charge. The applicant was asked if he believed he would have any difficulties obtaining employment on return now. The applicant responded that he believes so. He stated he has spoken to many people who have come to Australia via the PALM scheme. They have described how difficult it is to obtain employment. He explained that he is [part of a Fiji association in Australia], and he knows many people who work in the informal sector in Fiji and the money they are paid is not enough for them to live a decent life. People are finding themselves in poverty.
The applicant was also asked about his statements in his application that he had been affected both mentally and emotionally because of the military coups and takeovers in Fijis and this had caused him to become depressed. He was asked if he had ever been diagnosed or treated for any medical or mental health conditions. He stated no but he does have breakdowns every now and then when thinking about his partner and the distance between them.
CONSIDERATION OF CLAIMS AND EVIDENCE
Criteria for protection visa
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations

In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
COUNTRY INFORMATION
In the Department of Foreign Affairs and Trade’s (DFAT) 2022 Country Information Report on Fiji,[1] under the heading ‘Sexual Orientation and Gender Identity’, it has been reported:
3.58 Fiji is one of the few countries to have constitutional protections against LGBTI discrimination. Gay sex was decriminalised in 2010. Same-sex marriage is not legal in Fiji, however same-sex couples can and do live in Fiji.
3.59 There are a few LGBTI NGOs operating in Suva that may cover issues regionally for other Pacific countries. DFAT understands that they are relatively effective in raising awareness of LGBTI issues and dealing with authorities. However, in-country sources told DFAT that this needs to be understood in the context of overall low visibility of LGBTI people and LGBTI issues; LGBTI issues are rarely spoken of and raising awareness is a difficult task. There are few research studies of LGBTI issues in Fiji and it is difficult to observe or analyse patterns of discrimination and violence against LGBTI people.
3.60 Gay men and lesbians often do not come out to their families and are often not accepted when they do. This can cause significant problems because of the traditional role that families take in welfare during times of sickness or unemployment. LGBTI people may find more acceptance in Suva, particularly in wealthier circles. According to sources, societal belief in the efficacy of ‘corrective rape’ of lesbians remains prevalent in the indigenous Fijian community, although DFAT has no way of assessing or verifying the prevalence of such practices.
3.61 Twenty-one-year-old gay man, Iosefo Qionitoga Magnus was murdered in 2017 with no arrests made. A transgender woman, 23-year-old Akuila Salavuki, was found dead in a pool of blood in May 2018. Her accused murderer was acquitted. In-country sources told DFAT that when anti-LGBTI violence occurs it is more likely to be targeted than random, but that anti-LGBTI violence may be underreported which obscures any understanding of the prevalence of anti-LGBTI violence. Media articles about violence may not disclose that the violence was an anti-gay hate crime, for example.
3.62 In-country sources told DFAT that LGBTI individuals can experience societal discrimination when accessing goods and services. LGBTI issues are not discussed generally in Fijian society, and little data other than anecdotal reports exists to demonstrate that discrimination.
3.63 The tourism industry provides employment opportunities for LGBTI people, according to in-country sources. The tourism industry is highly international by its nature and is more inclusive of LGBTI people. It also provides an opportunity for people to work away from their families, who may have rejected them.
3.64 Transgender people report high levels of discrimination and abuse. Police promised to review claims of abuse directed towards transgender people on the Transgender Day of Remembrance (an international day to remember victims of anti-transgender violence) in 2018. Some transgender women are seen and may even be accepted as ‘entertainers’ but may find it difficult to find mainstream employment.
3.65 Overall, DFAT assesses that LGBTI Fijians are at a moderate risk of official and societal discrimination and a moderate risk of violence. Because of homophobia and transphobia, many LGBTI people may hide their identity. Taboos against reporting violence against LGBTI people also exist, which may make patterns difficult to identify.
[1] Australian Government - Department of Foreign Affairs and Trade (DFAT), DFAT 2023 Country Information Report Fiji (Report, 2 May 2022).
In the US Department of States, 2023 Country Report on Human Rights Practices on Fiji,[2] in the section titled, ‘Acts of Violence, Ciminalization, and Other Abuses Based on Sexual Orientation, Gender Identity or Expression, or Sex Characteristics’ it has been relevantly reported that:
Criminalization: No laws criminalized consensual same-sex sexual conduct between adults.
Violence and Harassment: NGOs reported violence against members of the lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQI+) community was common, and that strong and widespread social stigma contributed to a lack of trust in police and discouraged victims from reporting crimes to authorities due to fear of further violence or harassment. Reports indicated transgender women continued to face extremely high rates of sexual and gender-based violence, including routine harassment and targeting by police.
Discrimination: The constitution prohibited discrimination on the grounds of sexual orientation, gender, and gender identity and expression. The law prohibited discrimination in employment based on sexual orientation. Nevertheless, NGOs reported complaints of discrimination against LGBTQI+ persons in employment, housing, access to health care, and other fields. Research by the NGO Diverse Voices and Action for Equality found that a majority of lesbian and bisexual women, and of transgender persons, lived in poverty due to unemployment. According to Diverse Voices, approximately 62 percent of this group were unemployed or involved in precarious casual work.
…
Restrictions of Freedom of Expression, Association, or Peaceful Assembly: There were no known reports of restrictions on those speaking out concerning LGBTQI+ topics, although cyber bullying and hate speech against LGBTQI+ persons increased. In June the country’s first “Pride in Sport” event took place; 300 athletes participated in mixed netball, mixed volleyball, and women’s rugby competitions.
[2] US Department of States, 2023 Country Report on Human Rights Practices: Fiji (Report, 22 April 2024).
More recently, in 2024, Freedom House has reported that LGBT+ people in Fiji face discrimination in employment and access to healthcare. The former Primer Minister Bainimarama was also criticized for making prejudiced remarks against LGBT+ people.
REASONS AND FINDINGS
The issue in this case is whether the applicant meets the criteria for the grant of a protection visa. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Country of reference (and receiving country)
The applicant has provided the Department with a copy of the biographical/biodata page of his Republic of Fiji passport. The Tribunal accepts that the applicant is a national of Fiji. There is no evidence before the Tribunal to suggest that the applicant has citizenship of any other country, or that he has a right to enter and/or reside in any third country. Based on the information before it, the Tribunal is satisfied that s 36(3) does not apply. The Tribunal finds that the receiving country is Fiji; and on this basis the applicant’s claims have been assessed against Fiji.
Does the applicant satisfy the refugee criterion for protection?
The Tribunal found the applicant to be a credible and honest witness at the Tribunal hearing. The applicant’s oral evidence was detailed, convincing and presented in a manner indicative of genuine lived experiences. The Tribunal accepts the applicant’s evidence set out above regarding his sexual orientation. The Tribunal accepts that the applicant identifies as a gay man. The Tribunal accepts the applicant is a male who is attracted to other men and is currently in a same-sex relationship.
The Tribunal has had regard to s 5J(6), which states that conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the decision maker that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee. Arising from the evidence presented, the Tribunal is satisfied that the applicant’s sexual orientation existed prior to his arrival; and that since his arrival in Australia, he has continued to identify as a gay man including to colleagues, friends and family in Australia. The Tribunal has considered the applicant’s evidence and is satisfied that his conduct in Australia in openly expressing his sexual orientation has been undertaken otherwise than for the purpose of strengthening his claims for protection. The Tribunal, therefore, is not required to disregard this conduct in assessing whether the applicant has a well-founded fear of persecution.
In summary, the applicant has claimed that on account of his sexuality he will be persecuted should he return to Fiji. He fears he won’t be accepted. Individuals who are openly gay in Fiji are bullied and threatened. A gay activist committed suicide because he had been bullied for who he really was. He believes if he were to come out, as a gay man in Fiji, the chances of him doing something to himself, would be very high. He doesn’t believe he could take the threats and bullying and everything he will be subjected too. There will come a time, when he will become another statistic.
To establish if there is a well-founded fear of persecution, s 5J(1)(b) requires a finding as to whether there is a real chance that the person would be persecuted if returned to the receiving country, now or in the reasonably foreseeable future. To establish that there is a well-founded fear of persecution there must be a real chance of it occurring. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though there is only a 10 per cent chance that they will be persecuted.[3]
[3] Chan Yee Kin v MIEA [189] HCA 62.
In this case, the Tribunal has accepted that the applicant identifies as a gay man, and is satisfied, that he will continue to do so on return to Fiji.
In summary, the contemporary country information above reports that due to homophobic and transphobic attitudes among Fijian society, many LGBTIQ+ Fijians hide their identity. It is not uncommon when LGBTIQ+ people come out to their families, that they are not accepted. In 2022, DFAT assessed that LGBTI Fijians face a moderate risk of discrimination and violence. In 2023, NGOs reported that violence against LGBTIQ+ people was common. Violence against LGBTIQ+ people is underreported, and police protection is not always possible. They are also often discouraged from reporting crimes to the authorities for fear of further violence or harassment.
Having considered the country information, and the applicant’s own circumstances, the Tribunal finds that if the applicant was to return to Fiji and openly engage in a same-sex relationship, the possibility of the applicant’s sexual orientation becoming known to family members and individuals within his community and/or the law enforcement authorities in Fiji and the chance of him being harmed is not remote, insubstantial, or far-fetched. Accordingly, the Tribunal is satisfied that there is a real chance of the applicant facing harm, on account of his profile as a gay man on return to Fiji, now or in the reasonably foreseeable future.
Section 5J(4)(b) requires a consideration as to whether the persecution involves serious harm. As set out above, the DFAT has assessed that LGBTI people face a moderate risk of official and societal discrimination and a moderate risk of violence. In 2017, it was reported that a twenty-one-year-old gay man, Iosefo Qionitoga Magnus was murdered with no arrests made. The US Department of State has also reported that violence against members of the LGBTQI+ community was common, and that strong and widespread social stigma contributed to a lack of trust in police and discouraged victims from reporting crimes to authorities due to fear of further violence or harassment. More recently, in 2024 Freedom House, reported that LGBT+ people in Fiji face discrimination in employment and access to healthcare.[4]
[4] Freedom House, Freedom in the World 2023 – Fiji (Report, 6 May 2024).
Given the applicant’s profile and the country information above, the Tribunal finds the applicant faces a real chance of official and societal discrimination, harassment and violence should he return to Fiji. The Tribunal is satisfied that when considered cumulatively, the harm the applicant would face on return amounts to serious harm of the kind contemplated by s 5J(5).
Having regard to s 5L, the Tribunal finds that gay men constitute a particular social group and is satisfied that the essential and significant reason for the serious harm being directed at the applicant from family members and/or members of his community and/or the State authorities is his membership of this group. Furthermore, on the country information above, the Tribunal is satisfied that the persecution involves systematic and discriminatory conduct (s 5J(4)(a) and (c)).
To the extent that the applicant faces harm from his family members and/or members of his community, country information indicates that in general, the State is able but is not willing to offer effective protection. As noted above, it has been reported that LGBTIQ+ people are often discouraged from reporting crimes to the authorities for fear of further violence or harassment. LGBTIQ+ people have been subject to discrimination and punitive treatment by Fijian police with reports of physical and sexual assaults by police.[5] Accordingly, the Tribunal finds that effective protection measures are not available to the applicant on return (s 5J(2) and s 5LA) and the real chance of persecution relates to all areas of Fiji (s 5J(1)(c)).
[5] United Nations Population Fund, The University of Melbourne (Rowe, J. Sullivan C., Vaughan C.) Sexual and reproductive health and gender-based violence in Fiji: A review of policy and legislation (Report, 2022) 61.
Finally, s 5J(3) requires a consideration of what reasonable steps a person could take to modify their behaviour to avoid the real chance of persecution. In this case, the Tribunal is satisfied that it would not be reasonable for the applicant to take steps to modify his behaviour, as to do so would require him to alter or conceal his sexual orientation. Moreover, it would be impermissible to require the applicant to take such steps under s 5J(3)(a), (b) or (c)(vi).
For the reasons given above, the Tribunal finds that the applicant has a well-founded fear of persecution should he return to Fiji, now or in the reasonably foreseeable future.
Accordingly, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Given the above, the Tribunal has not undertaken an assessment or made findings in relation to the applicant’s political or economic claims for protection.
DECISION
The Tribunal sets aside and remits the application for a protection visa for reconsideration, in accordance with the order that the applicant satisfies s 36(2)(a) of the Migration Act.
Date of hearing:  29 May 2025
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.
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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.
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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.
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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.
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36     Protection visas – criteria provided for by this Act
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(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.
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