2402622 (Refugee)

2402622 (Refugee) [2024] AATA 4146 (4 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2402622

COUNTRY OF REFERENCE: Kiribati
MEMBER:Rosa Gagliardi
DATE:4 July 2024
PLACE OF DECISION: Australian Capital Territory
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.

Statement made on 04 July 2024 at 4:12pm
CATCHWORDS
REFUGEE – protection visa – Kiribati – particular social group – women – Christian single mother – physical assault – abandonment of children – forced abortion – coercive control – state protection – decision under review remitted
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 56, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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 16 February 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Kiribati (a matter the Tribunal accepts) applied for the visa on 14 October 2023.
The delegate refused to grant the visa on the basis that they were not satisfied that the applicant was a refugee as defined by s.5H of the Act and was therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations as outlined in s.36(2). The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Kiribati there is a real risk she will suffer significant harm as defined in s.36(2)(aa) of the Act.
The applicant appeared before the Tribunal on 31 May 2024 to give evidence and present arguments.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant has a well-founded fear of persecution for reasons set out in s.5J of the Act, and there is a real chance that if the applicant returned to Kiribati now or in the reasonably foreseeable future, she would be persecuted for one of those reasons and whether she would suffer serious harm. Alternatively, the Tribunal must assess whether the applicant meets the complementary criteria.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
The applicant’s claims at the time of application
The applicant stated that she initially left her country to work as a PALM Scheme Worker in Brisbane, Queensland. She stated she needed to work as she had a family to feed in her home country and that it had been a difficult decision to leave her family behind. After her arrival the applicant found that her husband (now ex) had abandoned the family home and was living with someone else, leaving the children behind without any support for their daily needs. When she confronted her husband about it, she was threatened by him.
The applicant stated that she had experienced harm as “part of a Kiribati’s woman’s life in a family living. My ex-spouse is the one responsible for the bodily harm that I have experienced”. She wrote that she did not try to seek help within the country because they will say it is a family matter and should be dealt with privately. But I felt so demoralised considering the harm that I have experienced”.
The applicant also wrote that she did not try to move from one place to another for her safety, “because it will never help. I am living in a country which is a very small one. Moving to another place will only aggravate and will likely experience more bodily harm as you can easily be found”. Further, she wrote “If I will be returned to my home country I will surely experience emotional and bodily harm”.
The applicant expressed the view that she would be harmed or mistreated if she returned to her home country as, “I have experienced bodily harm before during our marriage and specially now that I have found out of my husband’s affair. I feel pity for my little children back home”. She wrote that she did not think the authorities of her home country would protect her as, “The authorities can never help me in my situation because they will treat it as a personal matter. However, I do not want to die in his hands because of non-sense issues which involve his affairs with other women”. She stated that relocation would be impossible as her home country is too small to hide or relocate.
Evidence at hearing with the Tribunal
The applicant confirmed she had been born in transit in [Country 1] and she had no rights to enter and reside in that country. Her parents were nationals of Kiribati as well. Her father had worked in earlier years in public [agencies] in Kiribati and her mother was not working. The applicant stated she was one of [number] and that her siblings all lived in Kiribati.
The applicant went to school up until [grade] as her father could not work so she had responsibility to support her family. She worked [for a business 1] for 3 years as [an occupation 1]. The applicant stated that when her contract finished, she trained at [a specialist] training centre as she wanted to work overseas, and it was hard to find work in the tourism industry in Kiribati. She met the father of her children at that training centre. He was not working and was struggling, and she was pregnant shortly thereafter. It was difficult but they survived on seafood, and she did some gardening to survive. Ultimately, she had two children with her former husband.
The applicant then found work in a small [business 2] in Kiribati due to her experience [at the business 1]. The applicant stated that it was part of her work to be friendly and socialise with the [customers], but her former husband became angry and jealous about that. She stated that she had to be personable and display humour. Her manager, a female, noticed that when work finished, she was not able to stay longer to mingle with the [customers] and she could not join any activities such as helping staff at functions. The applicant stated that she could not stay and had to return home. Her manager knew she had skills and tried to develop her through training. As her former husband was not working, he cared for their children as she worked.
The applicant narrated that her former manager at the [business 2] noticed that something was amiss and asked the applicant to confide in her to help her. The applicant attempted to explain that she would be in trouble if she did not return home at a certain hour. Asked what trouble she would face she stated that she did not want him coming to her workplace to hit her in front of others. This would have been humiliating to her.
On one occasion she had to stay back late because a function was being held and she, together with her colleagues, had many tasks to undertake and when she returned to where her motorbike had been parked her ex-husband was there. They went home together but he refused to speak to her, and she could tell he was not happy. He stopped the motorbike and was throwing it in fury, and she was bleeding. The applicant stated she did not go to the doctor because “it was normal for us. Women should listen to the husband”. The applicant stated she felt shame and kept it to herself. The next day her manager invited the applicant’s ex-husband to come to the [business 2] after work to see that his wife was only working, and he hung around when she was on duty. The applicant stated that he saw her laughing with [customers] and he said that now he realised why she stayed back at work at night to enjoy herself with the [customers]. She told him no, it was simply part of the job to be sociable and hospitable, but he would not listen. The applicant stated she could tell by his body language that he was enraged. He warned her that there would be consequences if she did not stop her conduct.
The applicant stated that she tried to work behind the scenes rather in roles at the bar or front of house and her manager made sure she was protected in housekeeping. During that time her husband was less angry.
The applicant tried to identify educational opportunities to gain further skills and she had the opportunity to come to Australia to work at the [venue] she was working in. The applicant stated that she was so happy because it was so hard to find work without skills in Kiribati and she wanted to be able to support her children. Her manager was very supportive. The applicant stated that she did not tell her husband because she knew he would never let her go. She pleaded with her mother not to inform her ex-husband either. The applicant stated she was successful in obtaining work here and the successful candidates’ names were published in the newspapers. People started talking and at that time she had moved to her mother’s home with the children. This was particularly so, as her ex-husband kept going to the [business 2] to monitor her, leaving the children to be looked after by her mother.
When her former husband found out she had applied for a job in Australia he did not accept it and was shocked she had not told him about it. The applicant stated she hid everything including her passport and documents and kept them in a safe place at work. She was concerned he would destroy the travel documents. She conducted all the negotiations regarding the position in Australia from her work phone. At that stage the applicant had decided she was going anyway. The applicant stated that he had hurt her a lot and was regularly drunk and was concerned that the applicant would leave their marriage. She told him she was going for the sake of their children. She stated that sometimes they could not afford what her children needed for school.
Asked whether her former husband had hit her at any point the applicant stated he hit her regularly but for her it was important not to tell her family and she tried to conceal the reasons for the bruising on her face. They were wondering and questioning her what had happened to her, but she did not want to argue with him in front of the children. She tried to hide the tension in her marriage for the sake of their children.
The applicant stated that her former husband did not know the date she would be leaving. When he found out he was very upset and angry.
The applicant had approached her manager in Australia to see if she could get the father of her children to work in Australia. The applicant arranged for the applicant to attend an interview in Kiribati where the interviews were being held. The Tribunal noted that her former husband had been abusive towards her so it appeared incongruent that she would want him to be in Australia with her. The applicant stated it was for the sake of her children – she did not want to have a “separated” status. She added she was raised in a Christian tradition and even if your marriage is abusive, you don’t abandon it. In her culture a woman would be blamed because she had chosen such a man. She was keen to keep the family together. And she wanted her husband to have a job to assist financially with the family as the responsibility was all on her shoulders.
The applicant stated that her husband had been registered to attend an interview in [Country 1] for work at the [venue] in Australia, but he did not show up and the applicant could not get a hold of him. She was very upset as he had undertaken to attend. He just disappeared. She had tried hard to get him to Australia so he could have a job. She lost face with her employer and took the blame for his actions.
She then stopped engaging with her former husband. Eventually the applicant found the strength to tell her former husband to go his own way and they separated in 2019. And in that year her former husband had left the house and the children were looking for their father. He took the children with him and when they returned to the applicant’s mother’s home, they told their grandmother that their father was living with another lady who was pregnant, and the applicant stated that then she feared he would not look after the children.
The applicant stated she felt upset but was also relieved to be free of him and her mother undertook to take care of their children. They separated in 2019.
Then the applicant met someone in Australia. He was not an Australian citizen and she fell pregnant. The father of the child has not taken responsibility for that child. She was four months pregnant and returned on her own to Kiribati during her leave for two weeks. Her former husband was aware she was going back, and she was frightened but she thought there would not be too much of a problem because now they could both move on. However, her former husband told her that she needed to get rid of the child or he would kill her. The Tribunal noted that his girlfriend was pregnant so why was he concerned that she was pregnant. She stated that men could do that – women could not.
The applicant stated that she wanted to keep the child as abortion is forbidden in her culture – it was considered a curse.
The applicant stated that he returned to his place and then came back the following day to check to see whether she had found someone to perform the abortion. She tried to appease him and asked him to give her some time to get advice. The applicant stated that he wanted her to have the abortion in Kiribati to ensure he had control over the process. The applicant stated that her former husband thought he had found someone who knew how to massage the baby to provoke an abortion and during the consultation the applicant’s former husband remained outside.
The woman thought the applicant was going to have a customary massage of the baby prior to birth. The applicant then told the woman that she had come for an abortion. The woman found out about the applicant’s circumstances and told her she would not perform an abortion because it would bring a curse upon her. The child was too far advanced in the pregnancy.
The applicant told her former husband she wanted to keep the child, and in the end, she ran out of time to have an abortion, returned to Australia, and was determined never return to Kiribati. He would not accept the baby and she had concerns that he would do something to harm her and her unborn child. Even though the applicant’s former husband was in her position, men in Kiribati, explained the applicant, were not accountable. The applicant stated that currently her baby was in [Country 1] as it was too expensive to give birth in Australia, and she preferred to go to [Country 1] rather than Kiribati because she was concerned her baby would be abused by her former husband. The applicant’s mother’s friend undertook to care for the child in [Country 1]. She needed to keep working to support her children in Kiribati and her newborn.
The Tribunal noted that the applicant was no longer pregnant, and her child was safe in [Country 1] so what did she fear currently in Kiribati. The applicant stated that her former husband would not accept the child and she would suffer serious harm at his hands.
The applicant stated that her former husband would harm her again even if she did not take her third child with her. She stated she could not start her life again in another area in Kiribati because it was a small place and in Australia, she was safe. She stated she thought he would want to punish her for not having aborted her child conceived with another man. The applicant stated she could not cope with everything she had been through. The applicant stated that her husband continued to see her [children] in Kiribati at her mother’s house. He never went in and just stayed outside so he did not speak to her mother.
The Tribunal noted that the applicant came to Australia in 2016 but waited until 2021 to lodge her protection application. The applicant stated that her working visa expired in 2023, so she thought she was covered. The Tribunal explained that this might indicate that her fear was neither immediate nor deep or she would have applied prior to lodging her protection visa application.
The Tribunal asked the applicant to provide any third part testimony of the events she claimed happened to her in Kiribati.
Letter from the applicant’s mother in Kiribati

The letter submitted by the applicant’s mother confirms and provides greater detail about the applicant’s responsibility in looking after the family once her father was diagnosed with kidney cancer. The applicant’s mother stated that after the applicant moved in with her former partner, she started to notice that “my daughter’s usual outgoing personality was replaced by a subdued individual who was always sad, and fearful and no longer socialised with her family and immediate friends. This behaviour continued for the next five years and kept getting worse until I noticed visible bruises on my daughter’s face and any part of my daughter’s body. Each time I confronted my daughter about the bruises she would tell me that it wasn’t serious and requested that I just let it go since she feared for her safety if her husband knew that she had told me anything. She was also worried that the children would experience a broken home”.
Further, the applicant’s mother wrote:
In our culture, domestic disputes are not to be interfered with since it’s an internal affair between couples so I honoured her wishes. Sometimes towards the beginning of 2015, I received a call from my daughter, who said she was in the hospital. I rushed to see her and I was shocked to see that she was in bruises. I pleaded with her to tell me what happened, then she shared with me that her partner had been doing to her for the last few years. She shared that most of the days before she knocked off work, her husband was already waiting for her outside. If there was a slight delay, he would come and demand for her to leave immediately. On their way home, he assaulted her, and demand that she leaves work on time. My daughter pleaded that I never share this with anyone because she didn’t want a broken family for her children. I told her that she had to leave her husband immediately or leave the country.
About 2 months later my daughter informed me that there was an opening for a job in Australia via the labour scheme in Australia. I encouraged my daughter to apply for it. She then applied for it with her assistance from her employer xxx who was her manager and owner of the [named business 2]. I told my daughter, not to disclose her plans to her husband for her safety…
Three years after leaving for Australia, my daughter, took her leave to visit her family in Kiribati. She told me that she was carrying a child and was four months pregnant. At this point, her husband returned to our family home and told my daughter that he was willing to go back to her if she aborted her child. He kept pressuring her and, in the end, she managed to quietly fly back to Australia, without saying goodbye for fear of what her husband might do to her. Her husband then came to me and said to tell my daughter not to return to Kiribati or he might kill her. Towards the end of 2019, my daughter went to [Country 1] to give birth and flew back to Australia to resume work. My daughter never went back to Kiribati from 2019 until today (5 years) for fear of her life.
Letter from the applicant’s former employer, Manager, [the named business 2]
The letter confirms the applicant had worked at the [business 2] between 2011 and 2015 and that she began as [a nominated role], helping out in [specified operations]. Her shift started at 2.30 pm and ended at 10.00pm. The [business 2] proved quite busy and there were opportunities for over-time to deal with [special] events, “However, She had to decline to take overtime because She was afraid that her husband would be upset if she was late. She always request time off when events are scheduled”.
Moreover, her employer wrote:
I noticed her reluctance to work late, and after observing some bruises on her cheek, I asked her to my office to discuss the situation. In my office, she didn’t say a word; she just cried. She told me everything that happen – that her husband wanted her back home on time after work.

She explained about the bruise on her cheek; She couldn’t take the bus home and arrived late, and was then assaulted. She asked me not to tell anyone because she was trying to keep her family together. They have two [children] and she doesn’t want them to lose their father. In response, I arranged for a transport service, one of my vans, to pick her up and drop her off at home. I also invited her husband to spend time at the workplace while she was working. However, things got worse’ She felt uncomfortable as she interacted with male customers and male staff. The situation at home was bad too; her husband was physically abusive, and she ended up calling in sick for a couple of days due to the injuries.
I called her again and said that her repeated absenteeism was becoming a problem. I noticed that she wasn’t focused on her job and that she was isolating herself, especially from male customers and male staff. I also noticed that her husband presented himself as very nice and caring when others were around but he was abusive in private. In 2012, she reached a breaking point; she had to quit her job because she couldn’t handle it anymore.
She had independence, her husband was controlling her and her job, and she asked me if she could resign. I was upset and angry at her decision. I told her that she have a family to look after – her kids, parents, and her siblings. She explained that she couldn’t stay with her husband. But I wanted to keep her in my company. I moved her to a job behind the scenes, hoping that it would help her avoid interacting with men. I asked her why she was still staying with her abusive husband, and she told me that it was because she wanted to keep the family together for the sake of her kids and didn’t want them to be fatherless.
He applicant’s employer also explained that the applicant had been transferred to housekeeping in 2015 and asked her to assist with applying for a job in Australia. The applicant’s employer states that the applicant had to do all the paperwork in secret because her husband would strongly object. The employer notes that the applicant wanted to move far away “from the trauma and suffering she had endured, which I knew about and supported her through. She used my company phone for her contact details and encouraged her to pursue the opportunity so that she could be free from the pain and suffering she had experienced while being with her husband”.
FINDINGS AND REASONING
In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70).
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need for and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all their claims.
On the other hand, the Tribunal is not required to accept uncritically any, or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
Credibility
The Tribunal notes that in the Departmental decision written on 16 February 2024, the Department had reached out to the applicant via a s.56 letter, inviting her to provide her claims in more details as the claims, as they were written in her application, were vague. The applicant at that time did not respond. It is unclear whether she had neglected to give the Department updated contact details or was simply unable to respond. The Tribunal notes that the applicant was unrepresented.
Usually, the Tribunal would take an applicant’s level of engagement with a s.56 invitation letter and response to it, as being an indicator of the applicant’s genuineness in terms of upholding their claims. Clearly, an applicant who has a well-founded fear of persecution is more likely to be highly motivated to put forward their claims in a convincing manner. Nonetheless, the Tribunal considers it is not always the case that where applicants do not respond it is reflective of a lack of motivation. The circumstance of each case must be assessed on its merits.
In this case, it was evident that the applicant’s education level was low and that she found the review process exhausting and distressing as she remained tearful throughout the hearing. She seemed to have few resources in Australia and the inaccessibility to medical benefits meant she has not been able to seek assistance for the effects of having lived in an abusive relationship for a lengthy period. Furthermore, the Tribunal found that the applicant was not altogether aware of the effects of that abuse on her as she has remained focussed on working to subsist and maintain her mother and three children.
The Tribunal does not place adverse weight on the applicant finding it difficult to speak about her experiences in [Country 1] and that sometimes she did not go into specific detail. None of the shortcomings in terms of coherence in the hearing detract from the applicant’s credibility which was reinforced by her demeanour and spontaneity in providing her answers without artifice. The letters supporting the applicant’s claims are powerful corroboration of the applicant’s claims and also go beyond what the applicant was able to say at hearing.
Country information – family/gendered violence in Kiribati
A report published by the Secretariat of the Pacific Community Noumea, New Caledonia, in 2010 while now outdated, provides historical insight into cultural difficulties facing women who experience family violence in Kiribati.[1] In that report Dr Jimmie Rodgers, the then Director-General, Secretariat of the Pacific Community, pertinently wrote, “In many cases of violence against women, ‘culture’ has been used by perpetrators as the main reason for beating or punishing women”.[2] He also comments that prior to conducting the study relating to family violence in 2008, “it had been an accepted fact that violence against women and children occurs in Kiribati, just as it does in many other countries of the region…The finding in the study that 68% of women (2 in 3) between the ages of 15 and 49 years who have ever entered into a relationship have reported experiencing physical or sexual violence, or both, by an intimate partner, is a very serious case for concern. This prevalence is among the highest in the world”.[3]
[1] ‘Kiribati Family Health and Support Study: A study on violence against women and children’ Report prepared the Secretariat of the Pacific Community for Internal and Social Affairs, Statistics Division, Ministry of Finance and Economic Development, Tarawa, Kiribati, Kiribati Family Health and Support Study - A study on violence against women and children (unfpa.org).
[2] Ibid.
[3] Ibid.
The research also revealed that almost all (90%) of ever-partnered women aged 15-49 reported experiencing at least one form of controlling behaviour by an intimate partner and that, “This high percentage indicates that controlling behaviours are a normalised part of many intimate relationships in Kiribati”.[4] Relevantly, many women who took part in the study stated that the reason they returned to abusive partners was “For the sake of the children”.[5]
[4] Ibid.
[5] Ibid.
The in-depth study also refers to who women turned to about the violence they experienced, and some of the comments that were provided are set out below:
‘I haven’t told anybody about my problems because it’s not anybody’s business. It’s our own. There’s no point in sharing it with others’;
‘I was ashamed for what I had experienced and I did not go anywhere else during that time as I did not want to be teased by other people. I thought they knew’;
‘They asked me to be obedient to him. What he asks I must do. My friends and family advised me to do that’; and
‘I never reported anything to the police because I’m afraid of my husband’.[6]
[6] Ibid.
The South Pacific report in 2010 exposed significant issues about the nature of family violence in all its forms in Kiribati. The Tribunal would have expected, therefore, that significant reforms would have been made over the next ten years or so. Instead, the Tribunal’s research shows that a study conducted between February and April 2019 (sample of 629 selected women and 556 men, aged 15 to 49 years) found that 57% of men in the south of Kiribati’s main island reported physically or sexually abusing their wife or female partner in the past year.[7] However, conversely, the study showed that 38% of women stated they had experienced family violence but it was considered that this difference may have reflected the normalisation of violence against women and the shame experienced which discourages disclosure.[8]
[7] ‘New Kiribati study highlights prevalence of domestic violence’, 3 August 2020, RNZ, New Kiribati study highlights prevalence of domestic violence | RNZ News.
[8] Ibid.
The United States (US) Department of State report for Kiribati reported in 2023:
Domestic violence, often exacerbated by chronic alcohol abuse, continued to be a serious problem. Cultural taboos on reporting rape and domestic abuse, and police attitudes encouraging reconciliation rather than prosecution, existed.[9]
[9] ‘Kiribati’, US Department of State, 2023, Kiribati - United States Department of State.
In terms of corruption the US Department of state reported that:
According to Transparency International’s Global Corruption Barometer: Pacific 2021, nepotism and favouritism based on tribal and church ties were prevalent. The anti-corruption unit within the Public Service Office investigated complaints against senior officials but did not enforce the law effectively.[10]

Did the applicant experience family violence?
[10] Ibid.

Given the compelling evidence provided by the applicant herself, her mother and her former manager, the Tribunal accepts that the applicant:
·experienced emotional and physical abuse at the hands of her former partner; and
·was threatened to have an abortion by her former partner against her will.
The Tribunal accepts that the actions of the applicant’s former husband amounted to serious family violence and indeed criminal conduct.
The applicant described in addition to the physical abuse of her ex-husband that she experienced: monitoring; following; coercive control; reproductive abuse (forced abortion) and emotional and psychological abuse. The Tribunal also considers that the applicant was subject to economic and financial abuse as she was required to be the home maker as well as the bread earner for the family. The National Domestic and Family Violence Bench Book describes the insidious nature of such controlling behaviour which is always an underpinning dynamic of family violence.[11]
[11] ‘National Domestic and Family Violence Bench Book’, The Australasian Institute of Judicial Administration Inc, 2023, National Domestic and Family Violence Bench Book - Australasian Institute of Judicial Administration - Australasian Institute of Judicial Administration (aija.org.au).
The fact the applicant continued to want to keep her family together as a Christian who did not want the stigma of divorce does not detract from the seriousness of the family violence experienced by the applicant. As the National Domestic and Family Violence Bench Book notes there are many misconceptions that a victim of family violence is able to leave the abusive relationship and that, for example, the family violence will stop when the victim and perpetrator separate, and that mothers who experience family violence have a duty to keep the family together and to protect the children from violence.[12] In a devout Christian context the Tribunal notes that these beliefs would have been enhanced.
Is the violence experienced by the applicant captured by s.5J?
[12] Ibid.
It can be argued that “women” as a group do not constitute a particular social group as it is too general, and the group does not have a distinguishing feature about it. The Tribunal considers, however, that as the applicant stated at hearing, she is a devout Christian who did not want to break up her family for the sake of the children and continued to persist in the marriage until her former husband went beyond what she could withstand in terms of demanding an abortion which went against her belief system. The Tribunal considers that the applicant has characteristics that elevate her beyond a hypothetical woman in Kiribati and finds that the applicant is a member of the following particular social groups:
·Christian single mother; and
·Christian single mother forced to suffer serious family violence and threatened to have an abortion against her will.
Is there a real chance the applicant will suffer serious harm on return to Kiribati now or in the reasonably foreseeable future?
The applicant’s former husband has exerted controlling, coercive and jealous behaviours over the applicant. The Tribunal finds the fact the applicant defied her former husband in continuing to have the child of another man in circumstances where he had ordered her to have an abortion, means there is a real chance (it is not fanciful) that the applicant continues to be of interest to her former husband who may, were the applicant to return to Kiribati now or in the reasonably foreseeable future, continue to perpetuate family violence towards the applicant. The fact she refused to return to her home country to give birth to her child demonstrates the strength of her fear which is not subjective, but which on the basis of country information, is also objective. This is particularly so as the authorities in Kiribati see family violence as a private matter.
For the reasons given above, the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(a) of the Migration Act.
Rosa Gagliardi
Member

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 4146

4 July 2024

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