2313980 (Refugee)

2313980 (Refugee) [2024] AATA 1224 (9 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Muhammad Ali Sukhera
CASE NUMBER:  2313980
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Lilly Mojsin
DATE:9 January 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 09 January 2024 at 9:38am
CATCHWORDS
REFUGEE – protection visa – Fiji – religion – upbringing in strict, esteemed and well-connected Hindu family – marriage to Muslim man in Australia – pressured to divorce husband and revert to Hinduism, then threatened – socially ostracised – application for partner visa refused and marriage ended with divorce proceedings in progress – conversion to Christianity in Australia – delay in applying for protection – mental health – no recent medical reports and limited other supporting evidence provided – ethnicity – Indo-Fijian – country information – request for referral for ministerial consideration not accepted – application under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5F(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 August 2023 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants, who claim to be citizens of Fiji, applied for the visas on 25 June 2019. The delegate refused to grant the visas on the basis that the delegate was not satisfied the applicants would suffer serious or significant harm on their return to Fiji.
The first applicant [applicant] appeared before the Tribunal on 14 November 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi (Fiji) and English languages.
The applicants were represented in relation to the review.
CRITERIA FOR A PROTECTION VISA
See Annexure A
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant arrived in Australia [in] November 2012 and departed Australia [in] February 2013, she returned [in] May 2013 and departed [in] June 2013. She again returned [in] December 2013. The second applicant, her son, entered Australia [in] April 2014.
The applicant applied for a Partner (Residence) (Class BS) visa on 24 June 2014. The Tribunal, differently constituted[1] affirmed the Department decision dated 4 December 2015 refusing the applicants a Partner (Residence) (Class BS) visa. The Federal Circuit Court[2] on 31 October 2018 affirmed that Tribunal decision.
[1] AAT 1517785
[2] [Citation]
The applicants, applied for PV on 25 June 2019 and the applicant claimed as follows:
- The applicant and dependent son left Fiji to visit family in Australia,
- The applicant has not experienced harm in Fiji;
- The applicant came from the background of an esteem Hindu family that strictly adhere to the fundamental values of Hindu religion;
- In 2013, while visiting relatives in Australia, the applicant met a Muslim man named [Mr A] and they married [in] June 2014;
- The applicant knew that her family in Fiji would never accept this relationship. The applicant never disclosed it in Fiji.
- As the applicant needed mental peace they started to visit church, where the applicant found peace. Later on the applicant embraced Christianity
- The applicant’s family, relatives and extremist Hindu community, in particular the applicant’s [brothers] who are Hindu priests in Fiji, are in high positions in the Hindu community and in the political forces in Fiji. It was not possible for them to accept that their only sister [the applicant] married a Muslim man and converted to Christianity, along with her dependent son
- When the applicant’s family got to know that the applicant married a Muslim man, and converted to Christianity along with her son, they were furious and refused to accept it;
- The applicant’s family tried to force the applicant to divorce her husband and revert back to Hindu religion, and return to Fiji with her dependent son, the applicant refused
- The applicant’s family started to threaten the applicant that they cannot live in Fiji with this stain
- The applicant’s family kept forcing the applicant to return to Fiji but the applicant feared that her family would kill her and her dependent child, or would never allow the applicant to see her Muslim husband and practise Christianity freely
- The applicant will be harmed or mistreated, if returned to Fiji
- The applicant does not think that the authorities can and will protect the applicant.
- The applicant’s family and relatives, who are considered like gods in Fiji, have strong relations with the authorities and other political forces. The applicant and her dependent son will not be safe anywhere in Fiji.
- The applicant and her dependent son will be found no matter where they go as the applicant’s family in Fiji have blind religious followers everywhere in the country
- The applicant won’t be able to relocate in Fiji to avoid potential harm
- The second applicant is a dependent son of the applicant, and faces the same threat as his mother.
In a pre-hearing submission the applicant’s representative, in addition to repeating the above claims submitted that:
- Since 2014, the applicant has been staying in Australia and does not travel back to Fiji on holidays or any family visit. The applicant’s childhood was under strict upbringing, discipline and extremist Hindu religious teaching by her brothers and parents. The applicant’s brothers were Hindu priest and well known in the Fiji Indian community. They hold high position in the Hindu community and have links with echelons of the political circles and establishment in Fiji.
- Hindu Fijian Indian live in closely knit families, they have very narrow and fanatic approach towards their respective religions. The applicant was very rebellious as a teenager questioning her religion beliefs which upset her family. The applicant was married when she was [Age] years old with a man who was [Number] years old than her and chosen by her family. She was divorced by her estranged husband. In Australia, she married [Mr A], in 2014, despite her family’s disapproval. The relationship ended in divorce after 6 years. When applicant’s family knew in Fiji that the applicant married a man from a different faith, there was a huge uproar in applicant’s family. The applicant started getting threats from her brothers and they demanded her immediate return to Fiji.
- The applicant started receiving an open threat from her brothers. During this time the applicant suffered depression and stress and attended sessions of counselling services. The applicant attended different religious deities, but these efforts did not bring any positive change in the applicant’s mental health. The applicant now attends [Church] in [Suburb]. When the applicant’s close circle community came to know that she converted to Christianity, she was socially boycotted by the Hindu Fijian community in Australia.
- when the applicant’s family in Fiji knew about her religious conversion, this further escalated their anger and hatred towards her and they started giving her death threats on the phone. They consider this a sham, as this brings a bad name to their family in the local community. In the Fiji Indian community, they consider themselves as the defender and protector of faith, however, in this scenario, their own sister family married a Muslim man and later converted to Christianity. This chaos further put a question mark on their priesthood and challenges their authority in the Fijian Indian community. The applicant was so scared and felt that now there is no hope to return to Fiji. The church priest provided counselling and involved the applicant and her son in church activities. Since 2018, they started attending this church regularly and become part of the church community.
- Due to applicant’s limited communications skills both verbal and written she did not provide enough information in her claim, due to severe depression and medical conditions. She did not keep records of messages and is unable to provide any evidence to support her claims.
- In Fiji, the applicant fears persecution and death threats from her family who are fanatic in their religious beliefs and practice. Being a single mother with a dependent son who suffer from multiple medical conditions, the applicant should be given a chance to stay in Australia.
The applicant submitted, in support of her application, the following documents:
- [Organisation 1] Support Letter 3 November 2023 stating that the applicant has been discussing her immigration status and the impact it has on her son. The applicant has discussed her fears of returning to Fiji and fear of persecution for her religious beliefs and her beliefs that her son will not have good study and employment opportunities in Fiji
- [Organisation 2] Support Letter dated 26 October 2023 stating that the applicant and her son have been accessing their services since February 2021
- [Organisation 3] Support Letter dated 26 October 2023 that states the applicant has been accessing their services since July 2021. She sought help from [Organisation 3] for domestic violence she experienced and cultural and religious difference within her family and threats and risks if she were to return to Fiji
- [Church] Support Letter dated 28 January 2019. [Pastor B] opines that as the applicant’s pastor he confirms that since 2018 the applicant has been attending church and engaged in activities.
- [Church] Support Letter dated 28 January 2019. [Pastor B] opines that as the 2^nd applicant’s pastor he confirms that since 2018 the 2^nd applicant attends church and is a very active volunteer in Church activities
- [The applicant] Psychological Report dated 30 November 2018 . The author, [Ms C] states that the psychological report was written upon the applicant’s request to support her evidence of her marriage to her now ex-husband [Mr A]. At that time the applicant was experiencing anxiety and depression from presenting pathology with the application of her visa and her marriage. The applicant presented with symptoms of Depression Anxiety and not coping with allegations, being undermined, and being questioned about her genuine relationship with her husband, [Mr A]. The applicant attended a number of counselling sessions and was recommended a further 6-12 month treatment. The author concluded that with time, the complete resolution of her depression and anxiety towards functionality and a sense of psychological wellness can be achieved with the support of the Department of Human Services with her application of her genuine marriage to [Mr A].
- [The applicant]’s Request for Consideration, dated 22 August 2023, to the Minister states that ‘there may be limitations in providing concrete evidence of threats from my family in Fiji. It is essential to understand that “within my culture and context, raising one's voice against such threats can lead to even more perilous situations. In Fiji, many individuals face similar circumstances but choose not to report them due to well-founded fears for their safety. This is why there might be a
scarcity of readily available evidence”.
- Photographs
At the Tribunal hearing the applicant gave evidence that she was born on [Date] in Fiji in [Town 1] hospital. Her siblings live in Fiji. She has 4 sons. They are [Ages]. The [Birth order], the 2^nd applicant, lives in Australia and [2 other] boys are also in Australia, one is studying [Subject], but he is not in contact with her. Another son, according to her knowledge looks after her mother. Her father just passed away. Her [Birth order] son, the 2^nd applicant, is involved in evangelism. She does not work at all. The church helps her. Sometimes her cousin’s sister helps her.
She completed high school in Fiji. After she divorced, in [Year], she worked in a [factory] making [products]. She came to Australia in 2013. She came to Australia twice in 2012 and again in 2013. Her trip was for her cousin’s sons marriage and her nephew’s marriage. Asked why she remained in Australia, she said that she had a partner and decided to get married. She and [Mr A] separated in 2020, she filed divorce papers a month ago and the divorce is being heard.
She left Fiji in 2013 and came for a wedding. She applied for visa in 2019. I put to her when she left Fiji nothing had happened to her, she did not fear harm. I put she did not tell the Department about any of her fears. She said back in 2013 she had struggles, raising 3 kids. I put this did not amount to suffering serious harm in Fiji. She said that her fear came because of her marriage to [Mr A] the Muslim, all this came after she married [Mr A] because of her priest family.
She married [Mr A] in June 2014. She was refused a partner visa in 2015. It was put, she did not apply for this visa until 2019 because she had no other visa to apply for.
I asked when she developed a fear to go back to Fiji and she said after marriage with the Muslim man, when 3 months later in 2014, she received threats from her family, by phone. Nobody in her family speaks to her, they continuously threatened her. She blocked them after 2 or 3 times. She unblocked them and after a while they threatened again. Asked if that was the last time she heard from them she said that occurred in 2015. She then said that around 2017 through her friends they started to threaten her if she comes back to Fiji they will do harm to her.
I put to her she is no longer with [Mr A]. She responded that she is now a Christian. They are against her. She thinks that she is challenging their religion. I asked her about when they threatened her and she said they said now she is challenging their religion. I attempted to get more information and she stated that they are thinking it is challenging their faith. Her family is saying she is trying to challenge the Hindu religion. She has anxiety and sleepless nights because of all this, she has been to an astrologer but has not found peace yet. She and her son have sleepless nights.
Her family are Hindu priests, her brothers and her cousin live in [Town 2]. Not in [Town 1]. I asked her why a Hindu priest would harm her, as it is appears contrary to priestly behaviour. She responded that they want the family to follow the Hindu religion. I put that there are Fijian Christians in Fiji and she has the protection of the police if they attempt to harm her. She responded that she does not know about Christian communities but her family are strict and cannot accept her changing and some of family members are known to police and are in good with them.
I discussed independent evidence with her that the police are generally well-resourced by the government and they receive funding and training from overseas aid partners. The police are, in general, disciplined. Policing is conducted on a community policing model and police are generally actively engaged with the communities they serve. She responded that she knows her family and they will harm her because she feuded with them as Hindu over Christianity. She said the police will not be with her all the time.
I explained that the Fiji Police Force overall has the capacity to protect individuals from societal harassment, discrimination, and violence, and police are usually effective in carrying out their role in day-to-day crime detection, investigation and prevention. She said that there has been violence in Fiji and other illegal activities and her family is going through something similar.
I put to her that a magistrate can issue restraining orders. These orders operate similarly to apprehended violence orders in Australia, with conditions that aim to protect a person from assault, threats, intimidation, ‘abusive, provocative or offensive’ behaviour or the procurement of those offences by another person. These orders are enforced by police and provide some protection. She responded that they will certainly harm her. She is fighting for herself, to protect herself.
Her son finished school in Fiji, he came when he was [Age] years of age. Initially he was allowed to study but he did not. He is involved in the church and trying to get over his depression. I put that Healthcare is generally available for those who need it in Fiji. I put that her church has a branch in Fiji. She said that she is going through depression. She is [Age] and does not want to go back there. She feels good now going to the church. She has found peace in Christianity and has really found happiness there and comfort.
I asked what she fears about returning to Fiji and she said that her biggest fear is that they will find her and kill her because of being humiliated. They will do a lot of harm. She cannot accept all that. She fears harm by her family.
The applicant’s representative submitted that the applicant attended 10 counselling/medical sessions in 2018 and she did not need to go back after that. She has not been getting medical assistance for depression. She does not have access to health professionals. She has diabetes and blood pressure and relies on God. I asked the applicant how she knows she has these illnesses she said that it was there from before. She has been to an ASA doctor. But lately they have stopped the access as they cannot see everyone. I put to the applicant that medication availability in Fiji varies and the range of medications available in Fiji is less than in Australia. Health care free but available to all Fijians. She said she cannot go there. If she goes back she cannot bear the horrible conditions and cannot live in fear.
I put that she can go back to [Town 1]. She said the Hindu community and her family will not accept her. She knows there is harm for her. She has challenged their faith. They think she is challenging their religion.
I put to that applicant that her church has been helping her in Australia and they have branches in Suva and Lautoka and they are able to assist her on her return in the same way as they do in Australia. She responded that the churches will be harmed as well. She gets more assistance here from other organisations.
The applicant said that there a high murder rate in Fiji. She is single mother with 4 kids, it is not easy and she knows fear and does not want to go through all this. She has been married at [Age] and divorced at [Age] and not having a good time ever since.
She explained there is fear there and she has depression she cannot go back. She cannot face this thing again. She is [Age] years of age and has brought up 4 children and she does not want to go into depression.
She is requesting to get a chance to prove to her kids that she is a good mother and to give a chance so that her son can have decent schooling.
INDEPENDENT EVIDENCE
By way of background[3] about a third of Fiji’s 330 islands are inhabited. According to the CIA World Factbook, the population is about 940,000. The two main islands are Viti Levu, where the capital Suva and tourist city of Nadi are located, and Vanua Levu. Half the population lives on Viti Levu and 57% of the population lives in cities. Cities are relatively small; Suva, the largest city and capital, has fewer than 200,000 residents. The population is relatively young, more than 80% of people are under 54 years of age.
[3][3] DFAT Country Report Fiji 20 May 2022

The World Bank defines Fiji as an upper-middle income country. Fiji is one of the largest economies in the Pacific region, but about a quarter of the size of the next largest, Papua New Guinea. Its per capita gross domestic product (GDP) is much higher than most Pacific neighbours’.
Since the applicant’s arrival in Australia on 28 December 2013, the Fijian government has changed. Following the December 2022 Fijian general election[4], no political party won a clear majority of seats in Parliament to form Government. After ten days of inter-party negotiations, a coalition of three parties (The People’s Alliance, National Federation Party and Social Democratic Liberal Party), led by Prime Minister Sitiveni Rabuka, formed government. The change of government ended the prime ministership of Josaia “Frank” Bainimarama who assumed leadership in Fiji following a coup in 2006. Since the formation of the new government, there has been no significant political unrest or deterioration of government functions. The political situation in Fiji remains stable.
[4] A New Era in Fijian Politics (csis.org)
According to DFAT Country Reports Fiji 2022
Corruption is not a significant problem. A 2021 Transparency International study found 62 per cent of Fijians believe politicians are corrupt and 61 per cent believe businesses obtain government contracts through corruption. However, only 5 per cent of Fijians reported paying a bribe to obtain a service in the past year, the lowest by far of the Pacific countries studied. An anti-corruption commission exists and corruption prevention is covered as part of the school curriculum. Overall, the day-to-day risk of corruption is low.
Healthcare is generally available for those who need it. Quality is better in urban areas and may be basic in rural areas, especially the outer islands. Smaller communities might have access to basic healthcare facilities known as ‘nursing stations’ or ‘health centres’, the latter staffed by a doctor. Specialist healthcare is generally available, including cardiology, oncology, radiology and maternal health, particularly in large hospitals. Medication availability varies and the range of medications available in Fiji is less than in Australia. Equipment or specialist treatment facilities, for example for chemotherapy, are sometimes lacking. Some facilities are old and not well-maintained, and staff-to-patient ratios can be poor.
Healthcare is free to the patient but an increasing number of people are taking out private health insurance that allows them access to elective surgeries and cosmetic surgery available outside the public system or overseas.
School education is compulsory until age 15. The Government provides free education but costs such as uniforms are usually not covered.
Tertiary education and vocational education are also available. Many students receive scholarships to attend university. Having to move to another island may present a practical barrier to higher education. The range of vocational skills taught in Fiji is smaller than that available in Australia.
Indo-Fijians are mostly Hindus, but Sikh, Christian and Muslim communities also exist. They are diverse in their economic activity and social interests.
Police are generally well-resourced by the Government and receive funding and training from overseas aid partners. The police are, in general, disciplined (but see comments on violence below). Policing is conducted on a community policing model and police are generally actively engaged with the communities they serve.
Corruption in the FPF is reported, but DFAT understands that it is not widespread. There are some allegations of corruption and DFAT is aware of pockets of corruption that have later been exposed and investigated. Complaints about the FPF are made to the Human Rights and Anti-Discrimination Commission.
Policing in outer islands and more remote places is more difficult because of the greater influence that the chief-based hierarchy has in the outer regions. Police are generally not deployed to their home communities to avoid conflict with traditional hierarchies.
The Fiji Police Force overall has the capacity to protect individuals from societal harassment, discrimination, and violence, and police are usually effective in carrying out their role in day-to-day crime detection, investigation and prevention.
Courts include the Supreme Court, Court of Appeal, High Court and Magistrates’ Court. Most matters that affect the day-to-day lives of Fijians are heard in the Magistrates’ Court. Criminal proceedings are instituted by the independent Office of the Director of Public Prosecutions (ODPP); the ODPP also appoints police officers as prosecutors in courts. Criminal defendants generally get a fair trial. Judicial standards familiar in Australia, such as presumption of innocence, right to be present at trial and the right to be informed of details of charges, also exist in Fiji. ‘Assessors’, which were comparable to juries, were abolished in 2021.
The 2021 US Department of State Human Rights Report notes that the appeal courts may be slow to hear cases. In-country sources told DFAT that long delays are common but that civil cases, which may take several years, are usually much slower than criminal matters.
Judicial independence is disputed. Many judges are appointed on three-year contracts. Critics posit that the limited contracts affect independence because judges who are critical of the Government will not have their terms renewed. Some high-profile court cases have gone against the prosecution in recent years; for example, the 2018 acquittal of former Prime Minister and opposition leader Sitiveni Rabuka on corruption charges. Sources told DFAT that if corruption exists in the courts it is not common.
REASONS AND FINDINGS
On the basis of their Fijian passports, I accept that the applicants are nationals of Fiji and not a nationals or citizens of any other country. I accept that they do not have a right to enter and reside in any country other than Fiji. Therefore, I find that the applicants are not excluded from Australia's protection by subsection 36(3) of the Act. I also find that Fiji is the applicants’ “receiving country” for the purposes of s.36(2)(aa).
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
The applicant, who is now [Age], is a single mother of 4 children. She divorced her first spouse in [Year], worked in a [factory] until 2013 and came to Australia to visit her family and attend a family function. Her son, the second applicant, subsequently joined her. The applicant married her second husband, [Mr A] in Australia, in [Year]. She applied for and was unsuccessful obtaining a spouse visa. She divorced him in November 2023.
The applicant claims that Hindu Fijian Indians live in closely knit families they have very narrow and a fanatic approach towards their respective religions. The applicant claims she feuded with her family as a Hindu over Christianity when she was a teenager. She fears her family will harm her. Whilst I accept that the applicant may have been rebellious when a teenager and expressed her views about religion, she does not claim that she continued to do so when she was an adult or when she was bringing up her children as a single mother. I do not accept that her family will harm her because she was a rebellious teenager, as they did not do so when she became as adult.
I accept that the applicant struggled in Fiji, as a single mother, raising her children on her own. I am also satisfied that struggling as a single parent in bringing up children alone does not amount to serious harm. The applicant does not claim that she suffered domestic violence when she was married to her first husband. She does not claim that she and/or the second applicant suffered any serious harm from family members, non-state agents or the state when they lived in Fiji. She told the Tribunal, at hearing, she came to Australia to visit family.
I am satisfied the applicants did not suffer harm when they resided in Fiji prior to their arrival in Australia.
I therefore find that the applicants did not suffer serious harm for reasons of their race, religion, nationality, membership of a particular social group or political opinion in Fiji. I am satisfied the applicants came to Australia, as visitors.
I am required to assess whether the applicants will suffer serious harm, for a refugee reason, on their return to Fiji, within a reasonably foreseeable future.
The applicant is an ethnic Indian. She was of the Hindu faith when she lived in Fiji. I accept that she is now a Christian. She is divorced from her Muslim second husband.
The applicant claims to fear harm on her return to Fiji from her family, her relatives and the extremist Hindu community. She claims that she comes from an esteemed Hindu family, she had a strict upbringing, discipline and was taught extremist Hindu religious teaching by her brothers and parents. Her [brothers] are Hindu priests who are in high positions in the Hindu community and have links with high echelons of society, political circles, the establishment and the political forces in Fiji.
I accept that the applicant suffered depression and stress in 2018 and attended sessions of counselling services, as detailed by Angela Parasher’s Psychological Report dated 30 November 2018 . This medical report indicated that the applicant attended a number of counselling sessions and was recommended for a further 6-12 month treatment. No further reports were provided and the Psychological Report does not suggest the applicant’s anxiety and depression would continue indefinitely.
Nor does the Psychologist’s report suggest that the applicant has limited communications skills both verbal and written as submitted by the applicant’s representative. I observed the applicant, at the Tribunal hearing, and she was able to verbally communicate easily without hesitation during the hearing. Therefore I am of the view this claim of limited communications skills, both verbal and written, has been created in order to explain the lack of any corroborating evidence about the applicant’s family.
The applicant claims she has a number of other illness, such as depression, diabetes and blood pressure, and the second applicant has depression. Whilst I accept the applicant has suffered depression and stress and attended sessions of counselling services in 2018, there is no other medical report provided to the Tribunal that suggests that the applicant now suffers from depression and stress or that she will suffer depression and stress on her return to Fiji or that the second applicant has multiple medical conditions and now suffers from depression and will suffer depression on his return to Fiji.
Even were the applicant and her son to suffer from health issues on their return, there is free health care in Fiji[5] and whilst not all medications are available, and the range of medication is less than in Australia, nevertheless medical health services and medications are available to all Fijian residents. Therefore, I do not accept that there is a real chance the applicants will suffer serious harm in regard to the provision of health care services in Fiji, for any illnesses, within a reasonably foreseeable future.
[5] DFAT Country Report Fiji 20 May 2022
I accept that the applicant’s family do not approve of her and her son embracing Christianity or her son’s evangelism. I accept that the applicants will practise Christianity on their return to Fiji. Christianity is the predominant religion of Fiji and DFAT states that Indo-Fijians are mostly Hindus, but Sikh, Christian and Muslim communities also exist. Fiji’s 2013 Constitution contains a Bill of Rights. The Constitution specifically protects freedom of religious belief. I find that there is not a real chance the applicants, within a reasonably foreseeable future, will suffer serious harm in Fiji for practising their religion.
The applicant claims she will be boycotted by the Hindu Fijian Community because she converted to Christianity. The applicant provided photographs to the Tribunal showing the applicant with others attending church functions. She is supported by her pastor. I accept that since 2018, both applicants started attending church regularly and become part of the church community and attend [Church] in [Suburb]. Whilst the Hindu Fijian community in Australia have socially boycotted the applicants there is no independent evidence before me to suggest that the Australian Hindu Fijian community have a network that is able to socially boycott Australian converted Fijian Indian nationals on their return to Fiji. I am of the view were it the situation it would be known to independent sources such as DFAT, UK Home Office reports, Amnesty International and US State Department Reports. Further, even were the applicants to be socially boycotted by the Fijian Hindu community in Fiji, I do not accept that being socially boycotted amounts to serious harm, as required by s.5J(5) of the Act.
As for the Hindu community and her family not accepting the applicants because they think she is challenging their religion and that she and her church would be harmed, I do not accept that the applicant’s church would be harmed because she is now a practising Christian. There is no evidence before me to suggest that Christian churches or converts are harmed in Fiji because they have converted and practise Christianity. I am of the view were it the situation it would be known to independent sources.
I accept that the applicant’s family did not approve of her marriage to a Muslim. The applicant is no longer married to a Muslim. The applicant claims that her Hindu priest brothers fanaticism for their faith and their position/connections in Hindu society would result in them harming her and/or influencing others in the community to harm her. Even giving the applicant the benefit of the doubt and accepting that her brothers are Hindu priests, I am not persuaded that her brothers and/or her family have made death threats or that they have threatened her by phone until 2017 or through her friends around 2017 or that they are so influential they are able to act with impunity.
The applicant advised the Tribunal that she did not keep any records of messages and is unable to provide any evidence which support her claims. Her representative claimed that she has limited communications skills both verbal and written, coupled with depression, that caused her not to have any evidence. As stated above I do not accept this explanation. I would have expected that the applicant would have kept some records of messages or provided some evidence from her friends about the threats. Further, when put to her that she is no longer married to her Muslim husband [Mr A], she responded that she and her son are now challenging the family’s religion because of her conversion. When I asked her for further details about when they threatened her, she just repeated her claim that they said she is challenging their religion. I am of the view that had the applicant’s brothers threatened to kill and harm the applicants over a former Muslim marriage or conversion to Christianity and/or the second applicant being an evangelist, the applicant would have been able to provide the Tribunal with some details at the hearing and not just respond that she is challenging their religion. Therefore, I am not satisfied that the applicant’s family do not accept the applicants’ conversion, have threatened the applicant, do not speak to her or seek to harm the applicant/and or the second applicant for the applicant’s former marriage to a Muslim and/or their Christianity or their imputed religion. I am of the view the applicant has created these claims, that her Hindu priest brothers are threatening to kill and harm them and they are able to act with impunity due to their connections, in order to obtain the visas sought. Therefore, as I do not accept the applicant’s family threatened the applicants, I do not accept that Hindu extremists, due to the influence of the Hindu priest brothers, would seek to harm them.
Furthermore, the applicant arrived in Australia in December 2013 and did not apply for a protection visa until some 6 years later, and about 8 months after court proceedings in the Federal Circuit Court were finalised for a spouse visa refusal in 2018. She told the Tribunal that she did not apply for this visa until 2019 because she had no other visa to apply for. I am satisfied that the delay in applying for a PV indicates a lack of a subjective fear of harm, especially as she claims she developed a fear to go back to Fiji, 3 months after her marriage to a Muslim in 2014, over 4 years prior to her PV application.
Therefore, I find there is not a real chance that the applicants will suffer serious harm, on their return to Fiji within a reasonably foreseeable future for their religion or their imputed religion from their family and/or non-state agents.
I have considered whether I am wrong and the applicant’s brothers have threatened her and will attempt to harm them on the applicants’ return. DFAT’s advice[6] is that there is no evidence of official discrimination against Indo-Fijians, I do not accept the applicants would not receive protection from the police or the government were anyone to attempt to harm them.
[6] DFAT Country Report Fiji 20 May 2022
I accept the independent evidence, cited above, that the police are generally well-resourced by the government and they receive funding and training from overseas aid partners. The police are, in general, disciplined. Policing is conducted on a community policing model and police are generally actively engaged with the communities they serve. I accept the independent evidence, cited above, that the Fiji Police Force overall has the capacity to protect individuals from societal harassment, discrimination, and violence, and police are usually effective in carrying out their role in day-to-day crime detection, investigation and prevention. Fiji has an Anti-Corruption Commission. Whilst judicial independence is disputed, DFAT states that if corruption exists in the courts it is not common. I am satisfied that Indo-Fijians can access protection, it is durable and consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
I am satisfied that the applicants can access protection, it is durable and consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
The applicant also claims to fear harm because there is a high murder rate in Fiji. The Fiji Police Force has reported in September 2023[7] an 11 percent decrease in overall crime for the past month, with 1,348 reports, down from 1,507 in 2022. Serious crimes are also down by eight percent, while crimes against women decreased by 11 percent, and crimes against children dropped by 46 percent. DFAT does not suggest in its report there is a high murder rate in Fiji. I do not accept that there is real chance that the applicants will be murdered, within a reasonably foreseeable future on return to Fiji.
[7] Fiji crime rate drops by 11 percent – FBC News
I have considered [Organisation 1] Support letter 3 November 2023 stating that the applicant has been discussing her immigration status and the impact it has on her son, her fears of returning to Fiji, fear of persecution for her religious beliefs and that her son will not have good study and employment opportunities in Fiji. This claim of study and employment opportunities is not a claim she made to the Tribunal. This letter is of little probative value as it merely recounts the claims she has made to the author. I place little weight on this report.

As for a letter from [Organisation 3] dated 26 October 2023 stating the applicant sought help from [Organisation 3] for domestic violence she experienced, the applicant did not claim to the Tribunal she suffered domestic violence. I place little weight on this report.
I have considered all of the applicants’ claims and evidence singularly and cumulatively. I am not satisfied that there is a real chance the applicants will suffer serious harm for a refugee reason, if the applicants return to Fiji, within a reasonably foreseeable future.
Therefore, the applicants do not satisfy the criterion set out in s.36(2)(a).
I am required to assess whether the applicants will suffer significant harm on their return to Fiji within a reasonably foreseeable future.
The applicants are ethnic Fijian Indians who have converted to the Christian faith. The applicant was a single mother in Fiji, she worked and brought up 4 children. She came to Australia and remained in Australia since 2013.
The applicants claim that they suffer from health issues including depression. As stated above, health care services and medications are available in Fiji albeit not at the same level as available in Australia. Country information indicates that any failure in health care treatment or support will be due to the Fijian economy rather than any intentional act or omission and the risk of harm due to inadequate heath care services in Fiji is one faced by the population of Fiji generally. I find that the any inadequacies of the Fiji health care system does not amount to significant harm as defined. It does not constitute the carrying out of the death penalty, the arbitrary deprivation of life, cruel or inhuman treatment or punishment or degrading treatment or punishment.
I accept that the applicant does not wish to return to Fiji and that her son, who has spent a large period of time in Australia, considers Australia his home. He is involved in the Christian church and is an evangelist There is no suggestion that the second applicant would not be able to continue his evangelist work if the applicants return to Fiji now or in the foreseeable future.
Having considered all of the first and second applicants’ claims, individually and cumulatively, and all the evidence and submissions, I am not satisfied that any of the applicants will be arbitrarily deprived of life, the death penalty will be carried out on any of them, any of them will be subjected to torture or cruel or inhuman treatment or punishment or any of them will be subjected to degrading treatment or punishment if they return to Fiji now or in the reasonably foreseeable future.
Therefore, the applicants do not satisfy the criterion set out in s.36(2)(aa).
Ministerial Request
The applicant has provided a letter to the Tribunal dated 22 August 2023 requesting Permanent Stay in Australia. I have considered this letter.
Having regard to the circumstances of the applicants and having considered the Ministerial guidelines relating to the Minister's discretionary power under section 417 set out in PAM3 "Minister's guidelines on Ministerial powers (sections 345, 351, 417 and 501J)" I have no evidence before me to suggest that the circumstances of these applicants meet Ministerial Guidelines therefore I do not consider this case should be referred to the Department to be brought to the Minister's attention.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicants satisfy s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicants do not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Lilly Mojsin
Member

ANNEXURE A
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.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 1224

9 January 2024

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