2308774 (Refugee)

The applicant, an ethnic Fijian Christian male, sought a protection visa in Australia. He claimed that upon return to Fiji, he feared persecution due to his termination from employment in Australia, his perceived weakness, and his status as an LGBTI individual. The delegate refused the protection visa application, finding that Australia did not have protection obligations towards the applicant.

The court was required to determine whether the applicant met the criteria for a protection visa, specifically whether Australia had protection obligations towards him under section 36(2)(a) of the Migration Act 1958, which concerns being a refugee with a well-founded fear of persecution. The court also considered the complementary protection criterion under section 36(2)(aa), which applies if there is a real risk of significant harm upon removal from Australia.

The court reasoned that the applicant's fear of persecution was based on his membership in a particular social group, specifically as an LGBTI individual, and that this characteristic was innate and fundamental to his identity. The court found that the applicant had a well-founded fear of persecution for this reason, and that the authorities in Fiji would not be able to protect him. The court also considered the applicant's claims regarding workplace harassment and termination, and the potential for imprisonment upon return to Fiji.

The Tribunal was satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention, and therefore satisfies the criterion set out in s 36(2)(a). The matter was remitted for reconsideration with the direction that the applicant satisfies s 36(2)(a).