2313541 (Refugee)
[2025] ARTA 2266
•1 September 2025
2313541 (REFUGEE) [2025] ARTA 2266 (1 SEPTEMBER 2025)
DECISION AND
REASONS FOR DECISION
Representative: Ms Rubaiyat Evans
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2313541
Tribunal:General member S Waring
Date:1 September 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 satisfies s 36(2)(a) of the Migration Act.
Statement made on 01 September 2025 at 12:05pm
CATCHWORDS
REFUGEE – protection visa – Fiji – particular social group – women – victims of family violence – political opinion – SODELPA worker – physical assault – gender-based violence – threats of killing – employment – return trips to Fiji – state protection – decision under review remitted
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth)
Migration Act 1958 (Cth), ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2Any 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 10 August 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
2. The applicant who claims to be a national of Fiji, applied for the visa on 23 January 2020. The delegate refused to grant the visa on the basis that the applicant does not engage Australia’s protection obligations under the refugee or the complementary protection criteria in s36(2)(a) and s36(2)(aa) of the Act.
3. On 2 September 2023 the applicant lodged an application for review with the former Administrative Appeals Tribunal (the AAT).
4. The Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act) gives the Administrative Review Tribunal (the Tribunal) the authority to continue and finalise any aspect of the review not completed by the AAT.
5. The applicant appeared before the Tribunal on 4 July 2025 to give evidence and present arguments. The Tribunal also received oral evidence from [Sister A] (the applicant’s sister).
6. The applicant was represented in relation to the review by the Refugee Advice and Casework Service. Ms Evans from the Service attended the Tribunal hearing.
BACKGROUND
7. The applicant, now [age] years-of-age, was born in Suva, Fiji. She lived in her family home there until August 2011 and then in a marital home. She last arrived in Australia [in] December 2019 having previously travelled to Australia on 3 occasions:
· [April] 2017 to [May] 2017
· [September] 2019 to [October] 2019
· [October] 2019 to [November] 2019
8. [The applicant] was married [in] July 1998 and lived with her husband in [at Address 1], Fiji between September 2011 and January 2020.
Evidence before the Department
9. No interview was undertaken by the Department.
10. The evidence taken into account by the Delegate included:
· the applicant’s protection visa application
· supporting materials provided with the visa application including:
- [The applicant’s] own statement
- documents relating to the applicant’s husband ([Husband A]), his character and incarceration [between specified years]
- [Court 1] dismissal of [Husband A’s] sentencing appeal judgment dated [in] November 2004
- online news article Day of shame on a Sydney Street 15 September 2019 Nemani Delaibatiki.
· supporting documents including personal identifiers sighted by the Department as part of an identification test.
11. On 6 June 2023 the Department wrote to the applicant requesting that she provide further information. In response, the applicant requested additional time to address a list of Departmental questions and on 3 July 2023, she provided a number of notifications to the Department of changes in her circumstances. While the information provided clarified/corrected details disclosed in the protection application, the delegate considered these responses did not adequately address the concerns raised because, according to the Department’s assessment, the applicant did not provide all the specified details or answers to the questions about her individual claims.
Evidence before the Tribunal
12. In addition to the Department file (containing the materials listed above) submissions and other materials were provided to the Tribunal on 19 May 2025 including:
·photographs of identity documents, the applicant’s family, depicting property damage and an injury to the applicant’s teeth
·dental clinic notes July to October 2022
·the applicant’s signed statements dated 19 May 2025 and 1 July 2025
·online news article ‘Today in History 20 September 1985’ The Fiji Times published 20 September 2015
·supporting statements from:
- [Sibling A] 30 April 2025
- [Child A] 1 May 2025
- [Neighbour A] (former neighbour of the applicant) 30 April 2025
- [Name] (brother-in-law) 29 April 2025
- [Sister A] ([sister] of the applicant) 1 July 2025
- [Son A] (younger son of the applicant) 30 June 2025
13. In addition to providing the above materials, the applicant and her sister [Sister A] gave oral evidence to the Tribunal at hearing and the applicant submitted a statement (the post-hearing statement) on 18 July 2025.
14. A movement record of the applicant’s transits through Australia is also before the Tribunal.
15. The totality of evidence before the Tribunal is discussed below.
Claims before the department
16. The claims made by the applicant in her protection visa application are summarised as:
·she faced threats and abuse as a campaign officer for the Social Democratic Liberal Party (SODELPA) during an election
·her life is endangered due to her political opinion as a SODELPA supporter
·she suffered harm for many years in Fiji at the hands of her husband because of their different religious denominations
·her religious freedom and rights were violated and abused when she lived in Fiji
·she believes she will be killed, abused and face constant death threats if returned to her home country.
Claims and evidence in pre-hearing materials
17. In her statement of 19 May 2025, the applicant - in relation to the claims regarding her political activity in Fiji - that since the political situation in Fiji has changed (with Frank Bainimarama and his party no longer being in power) she does not fear harm from the Fijian government anymore.
18. In her statement of 19 May 2025, the applicant stated - in relation to the claims regarding fear of suffering further family violence - that she had not previously provided the ‘complete story’ because she “did not know that anyone would care about [Husband A’s] abuse”. She added that:
·her husband [Husband A] is a violent criminal who has been imprisoned for murder and violent robberies. He had been an escaped prisoner when she met him and their relationship (which started during prison visits) continued when he was released
·before she left Fiji, there were so many examples of his violence towards her that it was difficult to describe them all. [Husband A] would often get drunk and start being violent leading to some instances which she describes including:
-being bashed out the front of the nightclub, in front of the bouncers, who would just stand and watch. She woke the next morning with a body bruised from being kicked
-being dragged down the stairs by [Husband A] pulling her hair - ultimately requiring a plaster cast to treat her broken arm. She did not report the assault due to her fear that she would be beaten by [Husband A]
-being made to have sex with [Husband A] in front of his drunken friends leading to her experiencing feelings of shame and embarrassment the next day.
·[Husband A] became angry and abusive about her going to work
·the violent attacks abated while she was pregnant but his verbal abuse continued (or increased). Once [Son A] was born the physical violence started again
·she was fearful of being physically assaulted if [Husband A] found out about an implant put in her arm for birth control
·[Husband A] was really jealous of her ex-partner [Partner A] who, as the father of her elder child, was paying child support. [Husband A] engaged in infidelity as ‘pay back’ for her relationship with [Partner A]
·[Husband A] was also very controlling about who she spoke to and did not want her to work despite him being unemployed. They lived off money he made from robberies and selling drugs
·when she and [Husband A] moved to [Island 1] (a small island) to live with his family, [Husband A] had less access to alcohol and was more verbally violent than physically violent towards her. He would yell and swear at her
·while in [Island 1], [Husband A] beat her eldest son, [Child A] with a telephone cable (causing bruises to the bottom half of his body) such that he was in pain, crying and couldn’t sit down for days after. [Child A] moved in with his grandparents when the family returned to Suva
·back in Suva, when [Husband A] had greater access to alcohol again, even going to her mum's place just down the road would anger him and make him turn violent
·[Husband A] was also controlling of her religion – he would not respect her wish to observe the sabbath day on a Sunday
·[Husband A] was also controlling of her political expression – he would become very angry and threatening when she voiced opinions
·[Husband A] brought a gun to her mother’s house when she was there with her son. He wanted to scare her with it but the gun ‘went off’ and hit a wall where the bullet hole remains
·[Husband A] would often spit in her face in public. One such incident was witnessed by a friend and she felt ashamed. Because of incidents like this, she would make sure to avoid eye contact with [Husband A] when they met in public
·[Husband A] would lock her in the house so that others would not see her injuries
·[Husband A] then spent 7 or 8 years in prison and she lived with her mother. Upon his release the abuse started again with swearing and yelling. She had to move out of the family home because her mother couldn’t stand to hear such abuse
·when in their own home she experienced physical and sexual abuse with [Husband A] forcing her to have sex with him even when she didn't want to. “[Husband A] was the kind of man where you just had to give him what he wanted”
·[Husband A] was controlling with [Son A] and beat him – requiring medical treatment for bruises and cuts all over his legs. She did not report what had happened because she feared for their lives. She did not keep records of the visit because “in Fiji domestic violence is so common [she] never expected anyone to need the records.”
·[Husband A] threatened that he would break [Son A’s] fingers. Even on visits home from his boarding school, [Son A] would be subject to [Husband A’s] violence
·she would avoid any opportunity for [Husband A] to see her talking to other men
·when she went to the family home to look after her mother, [Husband A] would come over yelling, threating and demanding that she return home – which she did as her mother was so upset. Sometimes when she returned home with him, [Husband A] would force sex upon her.
·on one occasion (when he perceived she wasn’t paying attention) [Husband A] kicked her causing her knee to lift up and collide with her front tooth which was left ‘hanging down’ until she had dental work in Australia to repair it. She did not tell the dentist how the damage had occurred
·she continues to feel pain in her body from the beatings she experienced
·her [children] (and her relationship with them – particularly [Son A]) are still affected by the history of family violence.
19. The applicant stated that no one in her family can protect her from [Husband A] – who (she believes) would demand that she live with him if she returned to Fiji.
20. The applicant describes [Husband A] as a violent criminal. She believes the abuse and beatings he has inflicted upon her in the past will start again if she returns to Fiji. Suicide is an option she has considered to “get away from him”.
21. There is nowhere in Fiji it would be safe for her to locate as Fiji is very small and [Husband A] would find her. No one would hire her at her age ([age] years) and she does not have funds to find accommodation away from the family home.
22. The applicant believes the police in Fiji would not protect her from [Husband A] (in part) because family violence in Fiji is common and is thought of as a personal or family matter. She tried to make a statement about the violence (taking it to the [named] Police Station) but the authorities never followed up with even an interview. This caused her to lose hope.
23. Support with finances and/or housing is not available through women’s organisations in Suva.
Evidence at hearing
Applicant’s evidence
24. The Applicant told the Tribunal that her protection visa was prepared by a service provider – whom she paid – with the assistance of her cousin. She fully understood the contents of the application and the delegate’s decision.
25. The applicant recalled receiving and reading a letter from the Department asking questions - however she did not understand it.
26. The Tribunal enquired with the applicant about the claim (appearing in the protection visa application) that she fears harm due to her political opinion if she returns to Fiji. The Tribunal observed that this claim does not appear in the submissions or materials put to the Tribunal prior to the hearing. In response, the applicant told the Tribunal that she wishes to withdraw the claim regarding ‘political opinion’ as she was not involved in political activities in Fiji (or on social media) except that she was:
· a member of SODELPA for approximately 6 years
· a fan of Mr Rabuka
· amongst a crowd of people gathered to see Mr Rabuka when he came to Australia (she could not recall which year)
· involved in putting up banners for the party when Mr Bainimarama took government (she could not recall which election).
27. The Tribunal queried the statement in the protection application indicating the applicant had applied for residence in [Country 1]. [The applicant] stated that she had applied for a tourist visa there but not for residence.
28. The applicant told the Tribunal that, between May 2017 and September 2019, she had been employed as a process worker in Suva – within walking distance of the home she shared with her husband. She referred to her husband as [Husband A] although his full name is [name].
29. The marital home in [at Address 1] was just down the road from her mother’s house. She would walk to her mother’s and (25 – 30 minutes) to and from work each day as she did not own a car or have the ability to borrow a car. Sometimes she would catch a bus (including when shopping) or occasionally a taxi if she was running late. The Tribunal heard that the applicant commenced this work (on a casual basis) when she was a schoolgirl. She would seek employment again but is uncertain if she would be successful. If she were to be offered a job in Fiji at some distance from her family home (and her finances allowed) she would rent somewhere to live close to work.
30. The applicant’s mother passed away in 2023 and her [number] children continue to have differing opinions on whether to sell the family home in which they each inherited a share. Currently the applicant’s sister [Sibling A] is living in the family home. She and [Sibling A] have agreed that the applicant would live there together if she returned to Fiji.
31. The applicant stated that she would be happy to return to live in the family home. She would feel ‘at home’ there because it is where she grew up and ‘’living there [she] could do anything [she] wants.’’
32. In terms of alternative accommodation, the applicant stated that she could not live with her sister on the other side of town because there are children, and an ill mother-in-law living there.
33. The applicant remains married to [Husband A] who continues to live in the [Address 1] property – a short distance from the applicant’s family home. The Tribunal asked the applicant what steps she would (or could) take to safeguard her security with [Husband A] living so close by. The applicant responded that she did not have the words to answer that question.
34. The applicant stated that she would ‘’never go back into a relationship with [Husband A]’’ and that if she returned to Fiji divorcing [Husband A] is one of her goals. The applicant explained that she had wanted to initiate a divorce but, upon enquiry, she was told that she would have to be physically present in Fiji in order to sign the necessary paperwork and to appear personally in court.
35. The applicant acknowledged that, after first visiting Australia in between April and May 2017 she had returned to Fiji – making 2 trips between September and November 2019. She stated that, at that time of making those return trips to Fiji, she was not thinking ‘that way’ about divorcing [Husband A].
36. When the applicant visited Australia for short trips between 2017 and 2019 she had informed [Husband A] that she was only going on holiday however, she stated that the trips were motivated by her need to escape the violence and abuse of living with him. [The applicant] stated her belief had been that [Husband A] would not have allowed her to come to Australia for anything beyond a short visit and that he remains angry at her because she has not returned since [December] 2019.
37. The applicant stated that, had she known the family violence she suffered for years during the marriage could be taken into account by the delegate (as a reason for her to stay in Australia) she would have applied for a protection visa in 2017. The applicant stated that she did not become aware that a history of family violence could be relevant until 2020, when her friend [named] shared this information.
38. The applicant gave details of her experiences of family violence at the hands of [Husband A] and stated that she had gained no protection from authorities in Fiji – in part because [Husband A] was ‘connected with’ the military and the politician [Politician A].
39. The applicant described [Politician A] as a ‘good friend’ of her husband. She stated that, after [Husband A’s] release from prison, [Politician A] arranged a job offer for him to work at [Public Agency 1]. Thereafter, [Husband A] saw [Politician A] ‘a few times’ including an occasion when [Husband A] was advocating for the re-instatement of 10 – 15 fellow workers who had been ‘sacked’ after participating in a strike. Further to that, [Husband A] would go to see [Politician A] when he had ‘any problems’ and [Husband A] would ‘’always talk about [Politician A].’’
40. The Tribunal asked the applicant about the nature and extent of [Husband A’s] contact with [Politician A]. The applicant recounted that [Husband A] was working [at Public Agency 1] facilities and would meet [Politician A] ’here and there’’ including at [public] functions – one of which had been at parliament house. The applicant stated that [Politician A] had never visited the house where she and [Husband A] were living. She had never spoken to [Politician A] herself and did not know what [Politician A] thought about [Husband A].
41. The Tribunal enquired about the claim, made in the protection visa application, that [Husband A] was ‘above the law’ because of his relationship with [Politician A]. The Tribunal sought the applicant’s comment on the observation that the 10 year prison sentence that had been imposed on [Husband A] (in August 2004) was an indication that [Husband A] had not been ‘protected’ from prosecution by his connections with anyone. The applicant stated that she had no response to this observation.
42. The Tribunal sought the applicant’s comment on the observation that, from her evidence, the relationship between [Husband A] and [Politician A] did not indicate that such a senior (an politically active) person would step in to have charges ‘dropped’ against [Husband A] or to influence a judge in the sentencing of [Husband A] if he were to face criminal charges in the future. The applicant agreed that [Politician A] acting in this matter (because of his ‘relationship’ with [Husband A]) was only a vague possibility in her mind.
43. The applicant told the Tribunal that she made a police complaint about [Husband A’s] violent actions towards her. She could not recall the year in which she took this action, but believed it to have been before she came to Australia in 2017. She had been prompted to visit a women’s centre when she saw their pamphlet in the courthouse. According to the applicant, the complaint was not triggered by a particular incident of family violence.
44. The Tribunal referred to country information indicating that the responses of Fiji Police to family violence have changed since 2017 including the introduction of a ‘no drop’ policy. The applicant stated that she is unaware of this policy and continues to believe that the authorities will not protect her. She recounted that a friend of hers had reported family violence to Police and the perpetrator had been imprisoned. The problem, she said, with the Police response had been the delay between her friend’s complaint and the arrest occurring. The applicant believes that complaints of family violence are ignored by the Fiji Police.
45. The Tribunal asked the applicant about [Husband A’s] violent behaviour and threats. The applicant stated that, while she was in Fiji, [Husband A] would respond violently towards her when he became jealous and/or intoxicated.
46. He was a very heavy user of alcohol and became jealous when he would see her conversing with men (including her work colleagues) and the father of her son [Child A] whom she would see twice a month.
47. The applicant stated that if she returns to Fiji, [Husband A] would soon find out and (as he lives so close to the family home where she would locate) the abuse would start again – especially if she got a new job and work colleagues. Even though she would have the family home to return to, the applicant stated that she would not have anyone in Fiji to seek help from when the abuse started again.
48. The Tribunal heard that living in the family home would not protect the applicant from harm. [The applicant] stated that once [Husband A] knows she has returned to Fiji ‘’he would just walk in and hit [her]’’ and furthermore, he has friends and connections ‘everywhere’ to call on so that increasing security around the house would not afford protection.
49. The applicant re-stated that she has nobody to call for help or protection and it would not be ‘worth it’ to go to the police. She stated that she might go to the Women’s Crisis Centre or to Social welfare for women. Even so, the applicant stated that she ‘’knows [Husband A] very well’’ and is certain that he will harm her again.
50. The applicant initially stated that her last contact with [Husband A] was in early 2024 when he asked for photographs of their newborn grandchild. She could not recall whether she had sent the photographs as requested. According to the evidence given by the applicant early in the hearing, [Husband A] usually only calls her in relation to money transfers. She contributes financially to the property rates on the family home and to repay rent arrears on the marital home in [at Address 1].
51. The Tribunal heard that [Husband A] speaks ‘a lot’ to her son and she has learned (from her son) that [Husband A] is in full-time work as a [specified role].
52. The Tribunal asked the applicant to recount what [Husband A] had said to her during her last contact with him. She recalled him saying ‘’You are living a happy life there, bear in mind that you’re still married to me.’’ The applicant stated that she believed these words were threatening because of “the way he put it’. The applicant recalled that, on other occasions, [Husband A] made threatening statements such as ‘’I wish I could get hold of you.’’ and ‘’I will try and come on a boat to see you’’.
53. Since she has been in Australia, the applicant recalls her husband using abusive and profane words when speaking to her – at the end of every contact. Their conversations would always deteriorate in this way and ‘’he always says these things.’’
54. The applicant then said that, since her last contact with [Husband A], she would not pick up his calls. It was said that she turns her data off when she is at work and will then see 6 missed calls from [Husband A] via [a messaging service] ‘every day’.
55. The Tribunal queried why the applicant had not raised this aspect of [Husband A’s] harassing behaviour in her statement of 19 May 2025 or the pre-hearing submissions. The applicant responded that she had no answer to that question.
56. The applicant stated that she has call log records of [Husband A’s] repeated attempts to contact her although, every now and then, she goes back and deletes the messages because her son uses her phone.
57. In evidence given late in the hearing, the applicant explained that [Husband A] had not been drunk, but had been very abusive, during their contact 18 months ago. [The applicant] stated that, during their last contact, [Husband A] had threatened her - he had become abusive at the end of the call. [Husband A’s] threats are almost routine according to the applicant ‘’he always says that.’’
58. The applicant explained that she had not answered the phone to [Husband A] for 18 months because ‘’he might be drunk’’ and because ‘’everytime we talk he gets abusive at the end using ‘’F’’ words and [saying] ‘’you’re a whore.’’ [Husband A’s] response to her ignoring his calls has reportedly been to send abusive texts including ‘’why the f*** aren’t you picking up?’’ The applicant said she could not remember how many times [Husband A] has sent such messages. When the Tribunal enquired why the content of these harassing messages are not mentioned in her statement of 19 May 2025 or the pre-hearing submissions, the applicant responded ‘’I do not wish to respond to that question.’’
59. The Tribunal invited the applicant to provide her call log and chat history to the Tribunal.
Evidence of [Sister A]
60. [Sister A] (the witness) is the applicant’s sister. She told the Tribunal that she and her children live in the family home with her sister [Sibling A].
61. The witness had cared for their mother at home for 10 years prior to her death in 2023.
62. The witness stated that she has met [Husband A] 5 or 6 times in chance encounters around Suva. In her words, the conversations with [Husband A] were in the nature of ‘Hi and bye’.
63. On one occasion, when the witness saw [Husband A] on the bus, he asked her ‘’have you been speaking to [the applicant]?’’ The witness told him she had not - because she wanted to avoid the situation of [Husband A] asking her for the applicant’s phone number.
64. On this occasion [Husband A] did not ask her for the applicant’s phone number – he said ‘’if you’re speaking to her send her my love’’ and this remark surprised her.
65. The witness then stated that [Husband A] had asked her for the applicant’s phone number 3 times. She did not recall anything else [Husband A] had said to her.
66. The witness stated that she had become aware that [Husband A] had been ‘asking around’ about the applicant although she did not know who else [Husband A] had asked for the applicant’s phone number.
67. The Tribunal referred the witness to her documented statement (of 1 July 2025) that [Husband A] had asked her ‘’is she [the applicant] coming back?’’ The witness then stated that, once or twice, [Husband A] had asked her about the applicant ‘coming back’.
68. The witness told the Tribunal that she last saw [Husband A] about 2 years ago. She recalled that it had been a time before her mother passed away.
Post-hearing evidence
69. In a statement dated 18 July 2025, the applicant corrected the evidence given at hearing regarding her communications with [Husband A]. She was unable to submit her chat history with [Husband A] or the call logs for her phone and stated:
· it is not correct that she and [Husband A] have not spoken since early 2024. They have spoken more recently than this
· not all the conversations with [Husband A] are threatening. Sometimes they are friendly, for example about their children and grandchildren
· it is not correct that [Husband A] has called (or is calling) her 6 times a day. This exaggeration in the applicant’s evidence occurred when, according to the applicant, she was “distressed and panicked under the pressure”.
CONSIDERATION OF CLAIMS AND EVIDENCE
70. The applicant provided a copy of the biodata page of her Fijian passport to the Department as part of her protection visa application. The delegate accepted that the applicant is a citizen of Fiji and there is no information before the Tribunal to the contrary. The Tribunal finds that the applicant is a citizen of Fiji, and that Fiji is her receiving country for the purposes of assessing her claims for protection.
History of past harm
71. The protection visa application discloses [the applicant’s] circumstances as being that her husband has a violent criminal history spanning more than 30 years. She has long been subjected to family violence at his hands and he has spent a considerable part of his life in jail.
72. In determining whether an applicant engages protection obligations, it is necessary to make findings on relevant matters which may involve an assessment of the credibility of the applicant’s claims. The Tribunal has had regard to the AAT guidelines on the assessment of credibility and accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal has also had regard to the AAT guidelines on vulnerable persons which define a vulnerable person as a person whose ability to understand and effectively present their case or fully participate in the review process may be impaired or not developed. Relevant factors can include a person’s experiences of physical or psychological abuse and trauma, including victims of physical violence.
73. The Tribunal observes that the applicant was ably assisted by representation in the preparation of materials and submissions to support her case. Even so, the Tribunal considers that [the applicant] presented at hearing as an applicant with vulnerabilities attributable (at least in part) to her personal experiences, past abuse and trauma.
74. For almost the entirety of the hearing the Tribunal found the applicant to be a reliable and forthcoming witness despite having difficulty recalling dates of certain events. In relation to her family life and history with [Husband A] prior to leaving Fiji [in] December 2019, the applicant gave consistent and detailed evidence which is supported by witness statements and other materials before the Tribunal.
75. The Tribunal holds some concerns about the evidence given by the applicant (late in the hearing) regarding contact with her husband since 2024. Addressing these concerns, the Tribunal has regard to the frank admission [the applicant] has made in her post-hearing statement that some evidence she gave at hearing about the frequency and tone of her contact with [Husband A] since 2024 was incorrect or exaggerated. The Tribunal observes that the later-retracted responses were given toward the end of the hearing when the applicant, a vulnerable person (for reasons stated above) had answered questions for an extended period of time. The Tribunal accepts the applicant's explanation that she strayed into exaggerations and inaccuracies when she became “distressed and panicked under the pressure”.
76. Apart from the retracted responses, the Tribunal found the applicant’s evidence at hearing to be frank and natural, with no indication of having been rehearsed or coached. The applicant was forthright when disclosing to the Tribunal that she could happily live in her former family home in Suva (where she has good memories) if not for the danger of her husband being nearby.
Accepted facts
77. On balance, the Tribunal is satisfied that the applicant’s oral evidence (apart from the retracted responses) is based on her genuine lived experiences. In addition, the applicant has provided corroborative evidence in relation to her claims:
· that her husband is a violent criminal who continues to pose a threat to her physical and psychological safety. The Tribunal finds, based on the [judgment] published by the [Court 1] of Fiji in November 2004, that the applicant’s husband has demonstrated a pattern of violent and criminal offending (since he was aged 14) which did not cease after he served more than [number] years’ imprisonment for murder
· that she suffered physical injuries when assaulted by [Husband A]. The Tribunal finds, based on the photographs and dental records submitted by the applicant that she was injured during an assault in Fiji. As the Tribunal finds the applicant’s evidence of her family violence experiences to be reliable, the Tribunal is satisfied that the applicant sustained the tooth injury when she was assaulted by [Husband A]
· that [Husband A], having brought a gun to her mother’s house, threatened her with the weapon and discharged it. The Tribunal finds, based on the applicant’s evidence, the photograph (of a bullet hole) at Annexure L and the statement of [Sister A] that the applicant’s husband has (or has had) access to a firearm and has used the weapon to effectively terrorise the applicant. The Tribunal accepts that [Sister A] had direct knowledge of the weapon incident
· that she suffered serious abuse at the hands of her husband for many years. In addition to accepting the applicant’s evidence in this regard, the Tribunal places weight on the statement of [Neighbour A] (the applicant’s neighbour in [her town]) when finding that the applicant’s husband subjected her to extreme physical abuse for more than a decade. The Tribunal accepts that [Neighbour A] has made the statement from her direct knowledge that assaults were occurring in the home next door to her.
78. Considering the above, the Tribunal accepts that the applicant experienced several incidents of targeted crime at the hands of her husband following his release from prison and up to [December] 2019 when she last departed Fiji.
79. In relation to the criminal profile of the applicant’s husband, the Tribunal accepts (based on statements made in the [Court 1] judgment) that [Husband A] continued to engage in violent and criminal behaviour after serving a term of [13] years’ imprisonment for murder. In the sentencing appeal judgment (for crimes committed in 2004) the judge describes as “harrowing” the facts established about the way [Husband A] treated his victims. A series of separate and distinct acts by [Husband A] are described by the judge as an “offending pattern” and a “criminal spree” terrorising innocent members of the community.
80. In relation to the threats of harm directed towards the applicant by her husband, the Tribunal is satisfied that the applicant considers her husband to be an ever-present threat because of his violent propensity, controlling behaviours and reduced inhibitions when intoxicated. These are accepted by the Tribunal to be patterns of behaviour which the applicant fears facing again. The Tribunal accepts as credible, the applicant’s assurance that (whether or not he is making overt or graphic threats) she knows when [Husband A] intends his words to be menacing and threatening.
81. The Tribunal accepts that the applicant holds a subjective fear that she will suffer physical and psychological harm at the hands of her husband if she returns to Fiji.
82. The applicant claims that there is nobody in her family who could protect her from [Husband A’s] violence and that increased home-security measures would not prevent him gaining access to her. As the Tribunal has found (above) that the applicant has been subjected to abuse and threats using a loaded firearm, it is satisfied that the applicant fears losing her life if she returns to live in proximity to her husband.
83. Further, the applicant’s claims accord with independent country information regarding the prevalence of gender-based violence in Fiji. Recently published materials[1] confirm that violence against women is prevalent in Fiji. According to the Fiji Women’s Crisis Centre (FWCC) 56 women lost their lives to domestic violence in the 12 years to 2025, in 2024 1,500 domestic violence cases were recorded by the FWCC and:
During 2024, 250 people were charged with a total of 651 counts of serious sexual offences (four were police officers). In 2024, the number of rape cases reported to the FWCC increased compared to the previous year. Few rape cases are reported to the authorities; the FWCC estimates approximately five per cent of cases. Family violence is also high with 27 per cent of girls and women over the age of 15 years having experienced physical violence from a non-partner in their lifetime in 2010. The use of violence as a form of punishment and discipline is accepted within many families and communities.[2]
[1] Department of Home Affairs, Thematic Paper Gender-based Violence in the Pacific Region Country of Origin Information Services, 18 August 2025 page 2
[2] Department of Home Affairs, Thematic Paper Gender-based Violence in the Pacific Region Country of Origin Information Services, 18 August 2025 page 3
84. The Tribunal is prepared to accept that the violent motivations of [Husband A] would be exacerbated by the applicant’s extended stay in Australia. The applicant submitted that [Husband A] has been undeterred by his incarceration, police investigation and other interventions by the law and justice system in Fiji. Based on the available evidence this is accepted by the Tribunal.
85. The Tribunal does not place any adverse weight on the applicant’s exaggeration of [Husband A’s] ongoing harassment of her. The Tribunal accepts that, on the day of hearing, the attenuated process caused the applicant to panic and embellish her evidence.
86. The Tribunal accepts that [Husband A] has made menacing and implied threats when he has had direct contact with the applicant since she arrived in Australia [in] December 2019 and/or that she has interpreted his statements to her as threatening. The Tribunal accepts that such threats, together with the husband’s long history of violence (and criminal offending) have caused the applicant to remain in fear of him.
87. The Tribunal does not place any adverse weight on the applicant’s delay in applying for protection. It is acknowledged that the applicant visited Australia in 2017 and did not initially intend to apply for protection in Australia. The Tribunal accepts that, for a considerable period of time, the applicant was unaware that the family violence perpetrated against her in Fiji could form the basis of a protection visa application. The Tribunal accepts that, when she became aware that such violence was a valid ground to claim protection, she decided to pursue the application.
88. The issue in this case is whether any of the applicant engages Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) of the Act. For the following reasons, the Tribunal has concluded that the matter should be set aside and remitted for reconsideration.
Criteria for protection visa
89. 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. Relevant provisions of the Act are extracted in the attachment to this decision.
90. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the Department’s ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under review.
Does the applicant satisfy the refugee criterion for protection?
91. Based on the applicant’s circumstances, the Tribunal finds that her ‘home area’ would be her former family home in Suva and this would be the place of her likely return there. This abode was her previous place of residence for many years and it is the area where some of her siblings continue to reside.
92. The Tribunal is satisfied that the applicant’s husband would become aware of her return to Fiji and would locate her if she returns to her former family home which is in proximity to his current address.
93. Considering the findings set out above, the Tribunal is satisfied that there is a real chance, being a possibility that is not remote or far-fetched, that the applicant would face harm from her husband in the reasonably foreseeable future.
94. The Tribunal accepts that the applicant would have some supports around her from her family. However, considering that these supports did not previously prevent her experiencing harm, the Tribunal is not able to be satisfied that the applicant’s family would offer her adequate protection against future harm from [Husband A].
95. The Tribunal has considered whether the real chance of harm relates to all areas of Fiji, as required by s5J(1)(c). According to DFAT, relocation within Fiji for individuals targeted by gender-based violence is not necessarily helpful. “Fiji is relatively small and sometimes people can be tracked down through kinship networks.”[3] While the chance of [the applicant] being harmed may not be as high outside of Suva, considering the above, the Tribunal is satisfied there is at least a real chance of harm throughout Fiji.
[3] DFAT Country Information Report Fiji, 20 May 2022 para 3.57
96. The Tribunal accepts that the refugee criterion (that has been expressly submitted) is that the applicant is part of a particular social group ‘women in Fiji who have experienced family violence’. The Tribunal finds this group to satisfy the definition in s5L as the characteristics of gender are shared by each member of the group, including the applicant; are not a fear of persecution; and are innate or immutable or distinguish the group from society. The Tribunal finds this to be the essential and significant reason for the persecution as required by s5J(4)(a) and that the persecution involves systematic and discriminatory conduct, as required by s5J(4)(c), as it is targeted toward members of the group and is non-random. The Tribunal finds the persecution to involve serious harm, as required by s5J(4)(b), as the harm includes significant physical harassment or ill-treatment.
97. Despite the applicant’s inability (at hearing) to recall the timing of her report to the Police, the Tribunal accepts (based on a mostly favourable assessment of her credibility) that, without success, she endeavoured to initiate an official investigation into the assaults she experienced.
98. The Tribunal notes that DFAT[4] assesses that women who experience domestic violence are by definition, at high risk of violence and at moderate risk of discrimination in the form of a lack of access to protection in Fiji. Also noted by the Tribunal is the August 2025 published assessment that:
Domestic violence is a specific offence under Fijian law [and] Police practice a ‘no drop’ policy that requires them to pursue investigations of domestic violence even if the victim withdraws the accusation…However, women’s organisations report that police do not consistently follow this policy. Magistrates can issue restraining orders that are enforced by police.
[4] DFAT Country Information Report Fiji, 20 May 2022 para 3.57
99. Considering the above country information regarding the effectiveness of state protection in Fiji, together with the applicant’s past experience of seeking police assistance, the Tribunal is satisfied that effective protection measures, as defined in s5LA, would not be available to the applicant if she returned to her home country.
100. The Tribunal finds that the applicant could not take reasonable steps to modify her behaviour to avoid a real chance of persecution if she returns to Fiji. Such modification would fall within the exception in s 5J(3)(b) of concealing an innate or immutable characteristic.
101. For the above reasons, the Tribunal is satisfied that the applicant has a well-founded fear of persecution in Fiji and is a refugee within the meaning of s5H(1) of the Act.
Protection in a third country
102. Under s 36(3) of the Act, Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently, and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national. Based on the available evidence, the Tribunal finds that the applicant does not have a right to enter and reside in a third country and s 36(3) is therefore not applicable.
Conclusions
103. For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations and who satisfies the criterion set out in s36(2)(a) of the act.
DECISION
104. 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 satisfies s 36(2)(a) of the Migration Act.
Date of hearing: 4 July 2025
Representative: Ms Rubaiyat Evans
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.
…
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.
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