2403268 (Refugee)

2403268 (Refugee) [2024] AATA 3110 (2 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2403268
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Rachelle Johnston
DATE:2 May 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 02 May 2024 at 3:17pm
CATCHWORDS
REFUGEE – Protection Visa – Fiji – experienced domestic violence from her mother-in-law – economic situation in Fiji – fear of verbal abuse from the Fijian community – victim of a sexual assault – mental health concerns – not satisfied the applicant has a real chance of suffering serious or significant harm in Fiji – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, 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 dependant.
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 29 January 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 Fiji, applied for the visa on 4 October 2023. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations.
CLAIMS AND EVIDENCE
Claims and evidence before the Department
Protection visa application
In her protection application submitted on 4 October 2023 the applicant provided the following, among other things:
·     She was born in [year] in [City 1].
·     She is married. She has one son from a prior relationship who was born in [year].
·     She has two brothers and one sister in Fiji. Her parents are Fijian.
·     For work in Fiji, she was a [occupation] and a [occupation].
·     She speaks, reads, and writes Fijian and English.
·     Prior to travelling to Australia, she travelled to [Country 1] on multiple occasions across 2015 and 2016.
The applicant makes the following claims in her protection visa application form:
·     She left Fiji due to threats from her in-laws. She faces and experienced domestic violence from her mother-in-law because she married her son. Because she has a child her mother-in-law despised her even more.
·     She experienced verbal and physical abuse from her brothers for simply being a single mother and not having a job. They tried to marry her off to older men, but she ran away many times. She believed marrying her husband would ease off some of the abuse, but she felt like she just left one situation and walked into another.
·     Before marrying her husband when they were still courting, she would run away to other extended family members and hide there. Some family members would not believe her when she shared what she was enduring so they would turn her away. She would also seek help from friends or churches and anyone who would help her. She would seek shelter, food, clothes, and money for herself and her son and even do odd jobs here and there.
·     She tried to move to extended family members but did not stay long as many of her family were living on crops and had one income earner. Finance was always the biggest issue in nearly every house she went to. She and her son were unable to be away for too long as her husband and her weren’t married at the time. They were not allowed to leave together.
·     She does not have a house of her own with her husband and she has to live in the same house with her mother-in-law as her husband cares for her. Her son stays with church members who are considered family, but their home is overcrowded. She has not spoken to her brothers in years as they have both said they never wanted to speak to her or see her or her child again. Even though they lived in the same country they never saw each other as she does not want a repeat of history that was too traumatic for her.
·     If she returns to Fiji she will be mistreated and harmed. She will experience more verbal and physical abuse. Her own brothers will be angry as she is in a country where every voice is heard, and she is not depending on anyone financially. That will make her brothers angrier as they know she does not need their opinions as she is earning her own money and caring for her son and husband. The minute she arrived in Australia her brothers visited her husband regarding why they were not told she came to Australia. For the sake of her mental health, she had to block them on social media. It is every Fijian woman’s worst nightmare trying to make a better life but family with their high demands and verbal abuse was something she did not want to return to.
·     When the abuse first started, she tried to confide in a cousin of hers about possibly going to the police, but she advised it would only make things harder for her. Her family could try to twist her words and get her son taken away from her as they despised him. Her son struggled in school, so she tried her best to keep him in school, but they were always moving around. With the new government she has no clue if the authorities would protect her.
·     If she relocates in Fiji she will be mistreated and harmed. She will experience more verbal and physical abuse.
In a statutory declaration dated 16 August 2023 the applicant made the following claims:
·     She met her husband on Christmas day in 2015 when she was a single mother, and her son was [age] years of age. Her son’s biological father had disowned her and him from when she was pregnant.
·     When she met her husband, she was hesitant to start a relationship, but he was a kind and gentle man and he had love and patience towards herself and her son. They started dating and taking their time getting to know each other.
·     For most of her first year dating her now husband she was in [Country 1] working as a [Occupation 1]. Her husband dropped off her son at school and gave him money. Her son would also stay with her husband and her mother-in-law.
·     Her husband lived with his mother on their family’s land.
·     Before she started dating her husband she had been verbally and physically abused by her own brothers and father because they wanted to marry her off to other people. She endured this for years. She would run away to other friends and family, but they would find her and physically abuse her. She made the decision to go and be a [Occupation 1] where they could not touch her.
·     Being a single parent was a big taboo in the Fijian community.
·     Whilst she was away, she would cry to her husband fearing for her child’s life. He was staying with a church member. Her family knew her son would be her weakness and would threaten her that they would continue to physically abuse him if she did not marry.
·     Her husband treated her son as if he was his biological father. She agreed to move into his house with him and his mother.
·     Two or three years into their relationship they started talking about marriage. She was doubtful based on her past history of abuse.
·     In 2018 to 2019 she started to experience verbal abuse from her mother-in-law. At first her mother-in-law made remarks she was useless and could not carry a child for her son. Then her mother-in-law would state she could not provide for the family financially as she already had a child and the money her son made was going towards her child and not her. Her mother-in-law wanted to make it clear that whatever money her son made was to be shared amongst her husband’s brother, herself and three other family members.
·     Her mother-in-law then started demanding she do all the housework and when she would finish, she would make her do it again. If she did not do it, she would tell her husband she did not want to do anything. Her mother-in-law was verbally abusive whenever her husband was not around. She would bang pots and pans if she did not like what was cooked or if she did not like how she had cleaned the house or if she did not wash the clothing before the sun came up, she would have her carry the clothes on her back down to the river to wash them by hand.
·     Her mother-in-law would ask her to walk an hour to the shops to buy things for the kitchen and say vulgar things to her when she would suggest her husband could pick things up after work.
·     These things happened for a few months, and she cried so much her mental and emotional stress was just too much, and she started thinking of ending her life, but she thought of her son. She started to shut everyone off.
·     There was a time she could not handle the abuse and embarrassment. Her niece suggested she come to Australia as a tourist. Her mother-in-law overheard this conversation on the phone and yelled at her to clean the house and do laundry and cook dinner and called her names. Her mother-in-law came into her bedroom and yelled at her, calling her a lazy and useless girl and a snake, and stated she will never marry or be good enough for her son or find work. Her mother-in-law threw bags at her face, swore at her, and told her to leave, saying that she would never marry her son, and she and her son were only there to take their money. The neighbours came running and saw her and she felt ashamed.
·     She left as her mother-in-law maintained her verbal abuse and kept throwing bags at her. Her husband heard what had happened to her and came and found her by the river. She said she would do what her mother-in-law asked her to do. She packed hers and her sons’ bags and took a trip to visit her extended family. Her husband’s family in the west who she met would not even look at her let alone say hello. Wherever she went people talked behind her back. After a few weeks her husband came to ask for forgiveness on behalf of his mother and stated he would leave home to stay with her. She could not let him do that and she told him about her niece’s offer and her husband told her to come to Australia and to leave her son with him. Her son was happy to stay with her husband.
·     She returned to her husband’s home with her son and her husband. She apologised to her mother-in-law even though she had done nothing wrong. A few months later her ticket to Australia was paid. Once her husband left for work her mother-in-law still targeted her.
·     She was scared and wanted to leave as soon as possible. She told her son to go and stay with a church member who is more like a sister. She planned to tell her husband her son wanted to be around other children his age.
·     She married her husband in 2020 but even after getting married she was still very reserved with her mother-in-law. She returned to Australia in 2020 and has chosen to remain in Australia due to the mere fact that she fears physical and verbal abuse from her mother-in-law.
·     She experienced physical abuse from her brothers.
·     There is financial stress on her family as even though her husband works, he must share the money with his brothers and mother and three other cousins. All she wants is a bright future for her son and the life she did not have.
·     She has remained in Australia due to Covid-19, but she has come to be very independent with the help of friends, family and church members encouraging her that Australia is a country of opportunity and women here are very independent.
·     She has earned so much money that she now helps her family and empowers a lot of single mothers back home. In Fiji this would not have been possible.
The applicant provided the following supporting documents to the Department, which the Tribunal has considered:
·     A certificate of marriage confirming the applicant married her husband in Fiji on 9 January 2020.
·     A Statutory Declaration from her niece in Australia dated 16 August 2023.
·     A Statutory Declaration from her niece in Fiji dated 2 August 2023.
Interview with the delegate
The applicant attended an interview with a delegate of the Department on 12 December 2023 via videoconference. In the interview, the applicant responded to questions and elaborated on her claims. The Tribunal has listened to a recording of the interview. Where relevant, the applicant’s oral evidence at the interview is referred to in the Tribunal’s analysis below.
The delegate’s decision
On 29 January 2024, a delegate of the Minister refused the applicant’s protection visa application. The delegate did not find the applicant to be a credible witness. The delegate was not satisfied that the applicant is a refugee, as defined by s 5H(1) of the Act or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Fiji, there is a real risk that she will suffer significant harm as defined in s36(2)(aa) of the Act.
Claims and evidence before the Tribunal
Review application
On 24 February 2024, the applicant applied for a review of the delegate’s decision. She provided the Tribunal with a copy of the delegate’s decision.
The hearing
The applicant appeared before the Tribunal on 26 April 2024 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Fijian and English languages. The Tribunal confirmed with the applicant she was able to understand the interpreter. The applicant speaks English and elected not to use the services of the interpreter, however the interpreter remained present throughout the hearing in the event their services were required. The applicant was able to answer questions without hesitation and her answers demonstrated an understanding of the questions being put to her.
The applicant discussed mental health issues throughout the hearing and detailed past instances of abuse. The Tribunal indicated to the applicant she could take her time giving evidence and request breaks if needed. The Tribunal regularly checked with the applicant if she would like a break whilst she was giving her evidence. The applicant has not undertaken any mental health treatment and did not have any medical evidence to produce to the Tribunal in relation to her mental health condition and symptoms. After discussing a few matters with the applicant, the Tribunal was satisfied the applicant was able to give evidence, answer questions, and participate effectively in the hearing. The Tribunal considered relevant Guidelines in conducting the hearing[1].
[1] Migration and Refugee Division Guidelines on Vulnerable Persons.
The Tribunal is satisfied that the applicant had a meaningful and genuine opportunity to be heard, present their case, and participate fully in the hearing. Where relevant, the applicant’s oral evidence to the Tribunal is referred to in the analysis below.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Nationality
The applicant claims to be a citizen of Fiji and provided an uncertified copy of her Fijian passport and Birth Certificate to the Department. The delegate was satisfied that the applicant is using her own identity and that she is a citizen of Fiji. In the absence of evidence to the contrary, the Tribunal accepts this and finds the applicant is a citizen of Fiji and Fiji is her receiving country for the purposes of assessing her claims for protection.
Analysis, reasons and findings
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
In the hearing, the Tribunal discussed the applicant’s protection claims, what she claims occurred in Fiji, why she fears returning to Fiji, and her work, family, education, travel, and residential history. The applicant described the past harm she experienced in Fiji from members of her community, her family as a young woman, her mother-in-law, and disclosed a sexual assault that occurred when she was younger. The Tribunal does not share the delegate’s credibility concerns and found the applicant’s evidence across her written application, departmental interview, supporting documents, and oral evidence at hearing to be largely consistent. Whilst the applicant’s evidence at hearing was not always given in a sequential way and her answers to questions at times referenced other claims to those being discussed at the time, the Tribunal finds this is to be expected in the context of her past abuse and the nature of her claims.
The Tribunal discussed with the applicant why she travelled to Australia in late January 2020 and why she fears returning to Fiji. She explained she saw Australia as an opportunity to work, support her family, change the way people perceived her in Fiji, and for her to flourish and get something better in life.

When asked why she fears returning to Fiji and what she believes would happen to her if she returned there, she explained she would have difficulty finding work and relying on her husband or someone else to get things done for her. She also indicated she fears harm from her community, in the form of verbal words and judgemental comments. The applicant stated she wants to learn and do more in Australia and in time she may decide to go back to Fiji and stand on her own two feet and raise up a generation in the way Australia has helped her.
Given her written claims, the Tribunal asked the applicant if she fears harm on return to Fiji from her brothers or mother-in-law. In relation to her brothers, she stated she doesn’t really know and because of everything in her past she is generally in fear of her surroundings. The applicant stated in respect of her mother-in-law that she doesn’t really know if her mother-in-law would be harmful towards her if she returned to Fiji. Given the applicant did not resile from these claims at hearing, the Tribunal has considered them in addition to her economic concerns and fear of verbal abuse from the Fijian community.
In relation to the historic sexual assault the applicant experienced, the applicant confirmed she did not fear harm from the perpetrator but because of this incident she has a general fear of harm in Fiji because of what happened to her. Throughout the hearing the applicant also raised concerns about crime in Fiji, such as thefts. These concerns are also considered below.
Claims relating to harm from her mother-in-law
At hearing the applicant explained the circumstances of her marriage to her husband and the contact she had with her husband and mother-in-law in Fiji.
The applicant explained whilst living in Fiji she did a lot of [Occupation 1] work, which included travelling to [Country 1]. Whilst she was in [Country 1] her husband, who she was not yet married to, but whom she knew through a friend, cared for her family, including her son and cousin. Even though he is not her son’s biological father, her husband provided support to her son whilst she was on missions. The applicant explained before she flew home from [Country 1], she discovered her son was living with her now husband, as they had bonded. Whilst she did not initially want to live with her husband and get married, after seeing how he had cared for her son, she decided to marry him in January 2020.
The Tribunal asked the applicant whether she regarded herself as still being married to her husband and she stated yes, although she explained they do not have much contact. The applicant explained she had a verbal argument with her husband a few months ago that hurt her. Given the nature of her written claims and for the avoidance of doubt, the Tribunal asked the applicant if her husband had ever been violent towards her in the past. She stated no, only his mother had been. The applicant explained she and her husband have had verbal arguments where she has raised her voice and he has spoken back to her, and she’s walked away. The applicant did not raise any claims of domestic violence at hearing or in her written evidence in respect of her husband.
In terms of her mother-in-law, the applicant explained her mother-in-law didn’t know who she was as a person when she came back from [Country 1] to live with her and her husband. On return from [Country 1], she was tired from her [Occupation 1] work and needed to rest, and her mother-in-law berated her and verbally abused her. The applicant described similar instances of verbal abuse to those detailed in her statutory declaration of 16 August 2023.
The Tribunal queried with the applicant what her mother-in-law was like towards her once she married her husband. She stated her mother-in-law cooled it off at that time. She explained before that she was just going to [Country 1] and back and to other parts of Fiji and she was leaving her husband and mother-in-law for a few days and months at a time.
When asked why she fears returning to Fiji, the applicant did not mention her mother-in-law, although expressed a fear of unkind words, such as being told she is nothing or useless. When asked whether she still fears any harm from her mother-in-law she stated because of what she went through she has determined in her heart she won’t live with her, as she doesn’t want those words spoken again. She doesn’t want to live with someone who is angry for such little things. The applicant confirmed her son, husband, and mother-in-law all have a strong relationship and are currently living together in [Town 1], Fiji.
The Tribunal asked the applicant whether, given the passage of time, the circumstances of her son now living with her mother-in-law and husband, and her marriage, her mother-in-law would harm her if she were to return to Fiji. She stated she doesn’t really know.
The Tribunal asked the applicant what she would do if she had to return to Fiji. She stated she may withdraw her superannuation and find a way to start a business or continue to do her volunteer work in [Country 1] or work with the NDIS and mental health issues. In relation to her husband and mother-in-law, at hearing the applicant stated she hardly stayed with them for long in Fiji as she was attending volunteer work and when she thinks about it, she does not want to stay with a man who won’t accept her for who she is. When asked if she would stay married, the applicant stated she is still married but she hardly talks with her husband and if she had to return to Fiji, she would put the focus on herself first and she may return to the Western side of Fiji.
The applicant’s oral evidence at hearing in relation to her marriage to her husband and circumstances with her mother-in-law was largely consistent with her written evidence. The Tribunal accepts the applicant married her husband on 9 January 2020, that her mother-in-law was abusive towards her whilst she was living with her and that once the applicant married her husband her mother-in-law ceased her abuse of the applicant. The Tribunal accepts the applicant still has contact with her husband and considers herself to be married. The Tribunal accepts if the applicant were to return to Fiji she would not live with her mother-in-law.
The Tribunal raised with the applicant at hearing that on the evidence before it, it may not find she faces a real chance of serious or significant harm from her mother-in-law if she were to return to Fiji and that she does not fear serious or significant harm from her mother-in-law if she were to return to Fiji in the reasonably foreseeable future. The applicant responded by stating that is right and they might have changed, and she may not fight it. She explained the fear for her is that she has attempted suicide a few times, in 2011 or 2012, in relation to comments that were being made about her in the community and at church. The Tribunal acknowledged the difficult past the applicant has experienced. The Tribunal has separately considered the applicant’s mental health claims, below. The applicant provided no further comment in relation to the Tribunal’s concern it may not find she faces a real chance of serious or significant harm from her mother-in-law on return to Fiji.
Claims relating to harm from her brothers
At hearing the applicant provided a family history for herself and detailed how she was the only one of her siblings to disobey her parents and want to do things her way. She explained to the Tribunal that her mother and father have both passed away now and her two brothers and sister remain living in Fiji.
In discussing her brothers, the applicant provided details of her childhood, including her family’s attempts when she was in her late teenage years and early twenties to force her to marry. She explained her uncle brought the whale’s tooth[2] to the family home and potential men to marry and she had to forcefully say no to them, which led her to be placed in a sack and whipped by her family. The applicant explained how she ran away on the third attempt to get her to forcibly marry someone and how she went for missions and ultimately got pregnant. She determined she would find work and not rely on anyone else to care for herself and her son.
[2] In Fijian culture sperm whale teeth, known as ‘tabua’, are a symbol of great respect and are often given ahead of an engagement or at weddings, funerals and births. They are often given by a groom and his family to a woman’s father when a couple are proposed to be betrothed. ‘In Fiji, Nothing Says ‘”I Love You” Like a Sperm Whale Tooth’, The New York Times, 11 April 2017.
In discussing her more recent contact with her brothers the applicant explained she has had some contact with her brothers since arriving in Australia, in relation to her nephew’s desire to obtain a student visa. Her brothers have not made any threats of harm towards her in their contact with her. When asked when the last time was that her brothers were angry or aggressive towards her, she stated she can’t even remember when it was. The Tribunal asked the applicant if she had reason to believe her brothers would harm her if she returned to Fiji in the reasonably foreseeable future and if she feared harm on return to Fiji in relation to her brothers. The applicant stated she doesn’t really know at the moment and because of all that happened in the past, she is generally in fear of her surroundings, of people being angry with her, and she chooses the people that she talks to and communicates with.
The Tribunal accepts the applicant experienced past harm from her father and brothers when she was younger and that she was whipped when she refused to marry potential suitors. The Tribunal accepts the applicant has some contact with her brothers, in relation to family matters. The Tribunal accepts her brothers have not made any threats towards her throughout any of their contacts whilst she has been in Australia.
The Tribunal explained to the applicant given she is now an adult married woman, has not experienced any recent harm or threats from her brothers, and has some contact with them, it may not find she faces a real chance of serious or significant harm from her brothers in the reasonably foreseeable future if she were to return to Fiji, or that she genuinely fears harm from them. In response the applicant stated she believes the only fear she has now is that she will harm herself. The Tribunal acknowledged the applicant’s circumstances and difficulties and has addressed her claims related to her mental health below. The applicant did not provide any further comment in relation to the Tribunal’s concerns in respect of the harm she claims she faces from her brothers on return to Fiji.
Claims relating to harm from the community and general fear of harm
The applicant explained at hearing she experienced verbal abuse and traumatic comments throughout her life in Fiji. This included from her family, within the community, and from within her church. She described instances where church members perceived her as living with a man and made negative comments about her, and circumstances where the church pastor and his wife spoke low of her. She also stated in her family she was seen as an outlaw and as nothing. The applicant described her pain on return to Fiji of having to potentially face people who have judged her and treated her badly in the past and stated she doesn’t want to go back to Fiji and hear people say she is nothing, useless, and that she’ll go back to missions.
The applicant also described at hearing a general fear of harm and an inability to trust people in Fiji, related to her history of abuse and general violence in the Fijian community. The applicant explained in Fiji there is a lot of stealing nowadays and provided an example of her son’s bank card being stolen by a Fijian policeman and separately his phone being stolen and later sold. The applicant explained whilst the perpetrator of her sexual assault was arrested and she was not subsequently harmed or threatened, she has lived in general fear of harm due to what happened and when she goes anywhere, she doesn’t want anyone to touch her, and it triggers her. She explained she is always questioning if someone is safe and if they are trustworthy.
The Tribunal accepts the applicant experienced past verbal abuse in Fiji from members of the community, her family, and members of her church. The Tribunal accepts the applicant was the victim of a sexual assault when she was younger. The Tribunal accepts the applicant finds it difficult to trust people due to her past abuse. The Tribunal accepts petty theft and crime occurs in Fiji and that her son has been the victim of two thefts.
In relation to the applicant’s general fear of harm and her trust concerns, the Tribunal asked the applicant if she has that fear in Australia. The applicant stated she hardly goes out in Australia, other than to work or church, and she is always conscious about locking up. When asked what the difference is for the applicant between Australia and Fiji in relation to her general fears and trust concerns, she stated in Australia people mind their own business and don’t talk and can find work, live, have their own house, and survive. She stated people go to work and that’s it, and on their day off they sit and relax.
The Tribunal acknowledged the applicant’s trust concerns, general fear of harm in Fiji in relation to her history of trauma and concerns she would experience harmful words from people in the community. The Tribunal raised it may not find these concerns amount to serious or significant harm as required by the Act. The Tribunal discussed these definitions with the applicant at hearing and invited her to comment on its concern. The applicant explained in Fiji they may not use a gun like other countries going through wars, but words are the sharpest instrument anyone can use, and she has to live with them every day and they are a dangerous thing.
The Tribunal explored with the applicant further what words she believed would cause her harm and she explained on return to Fiji people would say, ‘she’s back’ and ‘let’s see where she’ll end up’. The applicant explained people would question what good would come out of her. The applicant explained those words are killing her slowly in terms of her mental health. The Tribunal explored the applicant’s mental health concerns on return to Fiji further, as discussed below.
In relation to the applicant’s concerns about general violence in Fiji, the Tribunal discussed with the applicant country information that provides Fiji is generally stable and secure. Crime rates, especially for violent and organised crime, are generally low. The risk of terrorism is low. Organised crime exists in Fiji, but it is not large-scale and is unlikely to affect people’s day-to-day lives[3]. The Tribunal explained DFAT report the Fiji Police Force overall has the capacity to protect individuals from societal harassment, discrimination, and violence, and the police are usually effective in carrying out their role in day-to-day crime detection, investigation and prevention[4]. It explained this information indicates crime rates are generally low, the police would be available to the applicant if anyone threatened or caused her harm on return to Fiji and she could seek police protection.
[3] Department of Foreign Affairs and Trade, Country Information Report Fiji, 20 May 2022, 2.34, 10.
[4] Department of Foreign Affairs and Trade, Country Information Report Fiji, 20 May 2022, 5.10, 23.
The Tribunal explained the country information may lead it to find she does not face a real chance of serious or significant harm in Fiji in the reasonably foreseeable future in relation to her general fear of harm. In response the applicant stated everyone tries to be on the good books, but the police can’t arrive within five minutes or ten minutes to save her, they continue to make excuses, and she’d be risking her own life. Whilst the Tribunal acknowledges the applicant has a past history of trauma in Fiji, it did not find her response addressed its concern in relation to the risk of harm she specifically would face in the reasonably foreseeable future if she were to return to Fiji in light of the country information.
Mental health concerns and self-harm
The applicant disclosed to the Tribunal throughout the hearing that she has mental health concerns on return to Fiji and that she had attempted to take her life in the past in Fiji, in around 2011 or 2012. The applicant explained she fears the verbal comments on return to Fiji will mentally destroy her and she may end up in a mental institute. She explained in Australia she knows she can survive and get help for therapy and healing. During the hearing at times when the Tribunal raised with the applicant aspects of her evidence that it had concerns with in respect of the criteria for a protection visa or relevant country information that did not support her claims, the applicant responded that she feared she would end her life in Fiji.
The Tribunal accepts the applicant has attempted to take her life in Fiji in the past in 2011 or 2012 and that she struggles with her mental health.
The Tribunal asked the applicant if she has seen a counsellor or psychologist to work through her feelings. She explained she has not done that, and she will sit with her niece and talk and cry with her. The applicant confirmed she has not accessed counselling in Fiji in the past or any mental health services in Australia. In discussing her mental health concerns the applicant explained she knows she has to get help.
The Tribunal queried with the applicant what it was about Fiji that caused her to be concerned for her mental health, as distinct from Australia. The applicant explained in Australia there are lots of organisations and back in Fiji when you tell someone what you are going through, they don’t take it seriously. In Australia, the applicant explained, she can deal with trauma, and she can get help. The Tribunal acknowledged what the applicant had been through in her past and explained it was struggling to understand what was different for the applicant in Fiji as opposed to Australia when the applicant had not accessed mental health services in either location. The applicant stated she hasn’t spoken to anyone who has said to her that she needs help. She stated she needs someone to advise her it will help her, and she has hardly shared in the past, even with her closest niece, but she knows she needs to go get help.
Country information before the Tribunal indicates the law in Fiji provides for public mental healthcare but in practice it may not be available. Some support is available in nursing stations, health centres, general practitioners, and hospitals. A public psychiatric hospital is located in Suva. Telephone counselling and mental health CSOs also provide services and online resources from Australia and New Zealand can be used in Fiji. Drug and alcohol services are available in Suva. The country information provides there is some societal stigma around mental health in Fiji[5].
[5] Department of Foreign Affairs and Trade, Country Information Report Fiji, 20 May 2022, 2.13-15, 7-8.
The Tribunal discussed the country information with the applicant at hearing. It explained the country information may lead it to find there are mental health services available to her in Fiji if she wanted to obtain professional assistance, she also has some family support in the form of her son and relatives, and that this may lead the Tribunal to find she would not face a real chance of serious or significant harm in Fiji in the reasonably foreseeable future for reasons related to her mental health. The applicant responded she wasn’t aware of this and had recently understood a woman was attending Fijian schools talking to girls about sexual abuse and mental health. She stated being raised in a settlement community no one took it seriously that things like her past would lead to mental health issues.
Economic concerns

At hearing when asked why the applicant feared returning to Fiji, she responded that it would be difficult to find work and the rate in Fiji is maybe just $2. The applicant stated she has fears of relying on her husband or someone else to get things done for her. In her written claims the applicant stated her husband needs to share his finances with his brother, mother, and three other cousins.
The Tribunal raised with the applicant at hearing that it may not find her economic concerns arise for a refugee reason, in that they do not arise for reasons of her race, ethnicity, religion, political opinion, or membership of a particular social group, as required by the Act. Additionally, the Tribunal explained financial concerns of this nature would not ordinarily amount to serious harm under the Act in that her capacity to subsist and survive on a day-to-day basis in Fiji is not threatened. The applicant responded by indicating Australia is the first place she has worked to earn money and back in Fiji she worked as a [volunteer]. She stated she has to deal with her mental health issues if she returns to Fiji and expressed concerns to the Tribunal of ending her life.
The Tribunal queried if the applicant could rely on support services and her family on return to Fiji. The applicant stated if she can attend services for her mental health she will. She explained her safe place is when she serves people and looks after the community. When asked what work she would be interested in doing if she had to return to Fiji, she stated in the past with her son they would team up and visit old people and help them. Her son is [age] now and assisting on her husband’s farm.
The Tribunal also discussed country information with the applicant related to the economic position of Fiji and the hourly wage. The Tribunal explained DFAT report that the World Bank defines Fiji as an upper-middle income country and that Fiji is one of the largest economies in the Pacific region[6]. DFAT report that Fiji's labour force participation rate in 2016, the most recent statistics available, was about 58% and more than 70% of men and 40% of women participate in the labour force. The official unemployment rate was 4.8% in 2020[7]. The Tribunal outlined there has been significant economic growth across 2022-23, the job market has improved in Fiji, demand for labour has persisted, job advertisements have risen, and labour loss in Fiji is reported as a domestic risk[8]. In 2023 the minimum wage increased to FJD $4/hour[9].
[6] Department of Foreign Affairs and Trade, Country Information Report Fiji, 20 May 2022, 2.7-2.10, 7.
[7] Department of Foreign Affairs and Trade, Country Information Report Fiji, 20 May 2022, 2.21, 8.
[8] Reserve Bank of Fiji, Press Release No 09, GDP Growth for 2022 and 2023 Revised Upward, 26 May 2023; The World Bank, Pacific Economic growth Slowing After Post-Pandemic Rebound, 5 March 2024; Reserve Bank of Fiji, RBF May Economic Glance Review: at a glance; Reserve Bank of Fiji, RBF February Economic Review: at a glance.
[9] '$4 Minimum Wage in Place', FijiLive, 4 January 2023.
The Tribunal explained to the applicant the country information indicates the economy in Fiji is stable and employment is available. It outlined this information, in combination with the applicant’s recent work history in Australia may lead it to conclude she would not face a real chance of serious or significant harm in the reasonably foreseeable future on return to Fiji in terms of her ability to subsist. The applicant commented that she knows people working in the government in Fiji who are still asking for money, someone recently took her son’s bank card and his money and took his phone and sold it, and there are a lot of workers from Fiji in Australia. She explained people in Fiji can’t attend family occasions dressed up as they don’t have a lot of money. Whilst the Tribunal acknowledges the level of wealth in Fiji differs to that in Australia, it did not find the applicant’s response addressed its concern as to whether she would face a real chance of serious or significant harm on return to Fiji in terms of her ability to subsist given her recent work history in Australia and the overall availability of work in Fiji.
The Tribunal also explained its concern to the applicant that it may not find her financial concerns amount to significant harm, which is exhaustively defined in the Act. The Tribunal discussed that definition with the applicant at hearing and explained it concerns intentional or deliberate acts to cause a person harm. The applicant responded by indicating she hasn’t always worried about finances, and she worries about her mental health. The applicant discussed her mental health concerns and indicated she must face she needs to get help.
Findings
The Tribunal has considered the applicant’s evidence at hearing and the written evidence in support of her claims, and for the reasons set out above finds as follows.
The Tribunal accepts the applicant married her husband on 9 January 2020.
The Tribunal accepts the applicant’s mother-in-law was abusive towards her whilst she was living with her and that once the applicant married her husband her mother-in-law ceased her abuse of the applicant.
The Tribunal accepts the applicant still has contact with her husband and considers herself to be married. The Tribunal accepts her son, husband, and mother-in-law all currently reside together in [Town 1], Fiji. The Tribunal accepts if the applicant were to return to Fiji she would not live with her mother-in-law.
The Tribunal accepts the applicant experienced past harm from her father and brothers when she was younger and that she was whipped when she refused to marry potential suitors.
The Tribunal accepts the applicant has some contact with her brothers, in relation to family matters. The Tribunal accepts her brothers have not made any threats towards her throughout any of their contacts whilst she has been in Australia.
The Tribunal accepts the applicant experienced past verbal abuse in Fiji from members of the community, her family, and members of her church.
The Tribunal accepts the applicant was the victim of a sexual assault when she was younger. The Tribunal accepts the applicant finds it difficult to trust people due to her past abuse. The Tribunal accepts petty theft and crime occurs in Fiji and that her son has been the victim of two thefts.
The Tribunal accepts the applicant has attempted to take her life in Fiji in the past in 2011 or 2012 and that she is struggling with her mental health.
Does the applicant meet the refugee criterion?
The applicant claims if she were to return to Fiji, she would have difficulty finding work and relying on her husband and others to get things done for her, and that she fears harm from the Fijian community in the form of general violence, verbal words, and judgemental comments. The applicant raised concerned at hearing related to her mental health on return to Fiji and her general mistrust and fear of people, and stated she is not sure if her mother-in-law and brothers would harm her if she returned to Fiji.
The Tribunal, for the reasons set out above, has accepted the applicant married her husband on 9 January 2020, they are still in contact and married, and that her mother-in-law was abusive towards her whilst she was living with her. The Tribunal has accepted once the applicant married her husband, her mother-in-law ceased her abuse of the applicant. The Tribunal has accepted if the applicant were to return to Fiji she would not live with her mother-in-law. The Tribunal has accepted the applicant experienced past harm from her father and brothers when she was younger, that she maintains some contact with her brothers, and her brothers have not made any threats towards her throughout any of their contacts whilst she has been in Australia. The Tribunal has also accepted the applicant experienced past verbal abuse in Fiji from members of the community, her family, and members of her church and that she was the victim of a sexual assault when she was younger. The Tribunal has accepted the applicant finds it difficult to trust people due to her past abuse, that she attempted to take her life in Fiji in 2011 or 2012 and that she struggles with her mental health.
For the following reasons, and having regard to the findings above, whilst the Tribunal is sympathetic to the applicant’s circumstances, the Tribunal is not satisfied there is a real chance that she will suffer serious harm upon return to Fiji in the reasonably foreseeable future.
To meet the refugee criterion, a person must have a well-founded fear of persecution for one or more of the reasons mentioned in s 5J(1)(a), namely race, religion, nationality, membership of a particular social group or political opinion.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, whilst s 5J(1)(b) imposes an objective standard, that there must be a real chance of that fear being realised and the person being persecuted.
At hearing the applicant stated she didn’t know if her mother-in-law or brothers would harm her on return to Fiji. In relation to her mother-in-law, after her marriage to her husband in January 2020 the applicant stated her mother-in-law ‘cooled off’ her abuse. Her son remains living with her mother-in-law and has a good relationship with the applicant’s mother-in-law and husband. The applicant has stated if she were to return to Fiji, even though she considers herself still married, she would not live with her mother-in-law. There is no evidence before the Tribunal the applicant’s mother-in-law has targeted the applicant outside the family home and in the Fijian community on any occasion or that she has threatened the applicant or harmed her in any way since her marriage. In circumstances where her mother-in-law has not abused her since her marriage, even whilst she was residing in Fiji, the Tribunal finds the applicant’s mother-in-law does not have any genuine continuing interest in targeting the applicant in any way. The Tribunal does not find there is a real chance the applicant’s mother-in-law would seek to harm her on return to Fiji in circumstances where the applicant has indicated she would not live with her mother-in-law, the domestic contact between the applicant and her mother-in-law would be limited, the applicant’s son and her mother-in-law have a good relationship, and her mother-in-law has not threatened her or attempted to harm her in over four years.
When the applicant was asked at hearing why she feared returning to Fiji she did not mention her mother-in-law. When asked why she wanted to travel to Australia she explained she saw Australia as an opportunity to work, support her family, change the way people perceived her in Fiji, and get something better in life. The Tribunal asked the applicant if she feared harm from her mother-in-law and she stated she didn’t know. The Tribunal does not find in these circumstances that the applicant has a genuine fear of harm from her mother-in-law if she were to return to Fiji in the reasonably foreseeable future.
In relation to her brothers, the applicant explained at hearing she has some ongoing contact with them in respect of family matters. She stated she has not received any threats of harm from them during their contacts, and she cannot remember the last time they were angry or aggressive towards her. Whilst the Tribunal has accepted the applicant’s brothers were abusive towards her when she was younger, the Tribunal does not accept on the evidence before it that the applicant’s brothers will seek to target or harm her in any way and for any reason in the reasonably foreseeable future if she were to return to Fiji.
The applicant is now an adult married woman with an adult son. There has been no recent abuse from her brothers during any of their contacts whilst she has been in Australia. Her brothers have sought her out to seek her advice in respect of visa options for her nephew. When the Tribunal queried with the applicant if she had reason to believe her brothers would harm her if she returned to Fiji, she stated she doesn’t really know because of the past and her general fear of her surroundings. The applicant did not outline any specific fear of harm from her brothers, including that they would be verbally or physically abusive in relation to her employment or relationship status or for any other reason. Whilst the Tribunal accepts the applicant had a difficult family upbringing and was previously harmed by her brothers, the Tribunal does not find in circumstances where the applicant has some ongoing contact with her brothers, is now married, cannot remember when her brothers were last angry or aggressive towards her, and her brothers have sought her out for advice about her nephew obtaining a student visa in Australia, that there is a real chance her brothers will harm her for any reason if she were to return to Fiji.
Considering all the evidence before the Tribunal, the Tribunal finds there is no real chance the applicant’s mother-in-law or brothers will harm her if she returns to Fiji and that the applicant does not genuinely fear that she will be subject to serious harm from her mother-in-law or brothers if she returns to Fiji in the reasonably foreseeable future.
In relation to the applicant’s concerns she could not obtain work in Fiji, would need to rely on her husband, and that her husband needs to share his income with his family, the Tribunal accepts the applicant is worried about her financial circumstances and ability to provide for herself independent of anyone else, but it is not satisfied such conditions involve serious harm to the applicant amounting to persecution in accordance with s 5J(4)(b). The applicant has been able to work in Australia and send money back to Fiji despite her mental health symptoms and without accessing any mental health support services. The Tribunal finds the applicant has skills she has developed in Australia, a proven capacity to provide for herself and secure work, and a work history she could draw on to obtain an income in Fiji such that she would be able to subsist and re-establish herself independently.
At hearing the Tribunal raised concerns of general harm from the community in Fiji, including verbal abuse and comments, and a general fear of violence and an inability to trust anyone. The Tribunal acknowledges the applicant has had a traumatic past in Fiji, a difficult upbringing, and has encountered negative comments within the community of Fiji. As raised with the applicant at hearing, the Tribunal does not find the verbal comments she fears she will encounter on return to Fiji, including in relation to the applicant’s financial circumstances, her child being born out of wedlock, and work in missions, amounts to serious harm in accordance with s 5J(4)(b) of the Act.
In relation to the applicant’s general fear of harm, the Tribunal appreciates as a victim of sexual assault in Fiji she is concerned for her safety and has ongoing trust issues within her community. The Tribunal discussed country information with the applicant at hearing, as outlined above, which indicates Fiji is generally stable and secure. Whilst the applicant is understandably cautious and finds it difficult to trust others, the applicant is not the target of harm from any specific person or group in Fiji, including in relation to her past sexual assault. The applicant stated she is fearful of her surroundings in Australia, as she would be in Fiji, and when pushed to explain what was different about her general fears in Fiji her answers centred on concerns about community discussion, as well as employment and work and life opportunities. Whilst the Tribunal accepts crimes such as petty theft occur in Fiji, including at times from people in positions of power such as the police officer who took her son’s bank card, the Tribunal does not find such circumstances, or her general fear of violence and distrust of people in the community, gives rise to a real chance the applicant faces serious harm for any reason and from anyone on return to Fiji in the reasonably foreseeable future.
The applicant explained to the Tribunal at hearing that her concern on return to Fiji is that she would not cope mentally and that she would consider ending her life. She disclosed she had attempted to take her life in Fiji in the past. The Tribunal acknowledged these distressing events with the applicant and appreciates they were distressing for the applicant to discuss at hearing. The Tribunal accepts the applicant has mental health concerns and that she has combatted these concerns in the past in Fiji.
The Tribunal appreciates returning to Fiji is likely to bring up difficult emotions for the applicant. The applicant has not discussed her mental health concerns outside of her family and has not obtained professional help in the past. The applicant stated at hearing she needs to obtain professional assistance and face her mental health issues and obtain help.
At hearing the Tribunal raised with the applicant country information, as outlined above, that provides mental health services are available in Fiji, including in in nursing stations, health centres, general practitioners, and hospitals and that there is a psychiatric hospital in Suva. Telephone counselling also exists. Whilst these services are not as abundant as those accessible to the applicant in Australia, they would be available to the applicant if she wished to obtain professional assistance in Fiji. The applicant would be returning to Fiji to her son and a husband, and whilst she has stated she would not live with her mother-in-law, where her husband and son currently reside, she has family members she can draw on for emotional support as she seeks professional assistance to assist her with her mental health if she wishes to do so.
The Tribunal finds there are mental health services available in Fiji to the applicant to assist her to process her feelings on return to Fiji, combat negative thought processes, assist her in relation to her past trauma, and respond to any initial financial stress she may encounter whilst re-establishing her life in Fiji. Having considered these factors individually and cumulatively, the Tribunal does not find any mental health issues the applicant may face retuning to Malaysia, including to an area where she was previously sexually assaulted and experienced past negative comments within her community, amounts to serious harm within the meaning of s 5J(5).
The applicant did not claim, and there is nothing in the material to suggest, that she fears persecution for any other reason in Fiji. At hearing the applicant mentioned she and her husband had a verbal argument a few months ago. Given this statement and the nature of the applicant’s written claims, the Tribunal queried with the applicant whether her husband has ever been abusive towards her. The applicant stated her husband has not been violent towards her, although they have had some verbal arguments. The Tribunal does not find on the evidence before it that the applicant is a victim of domestic violence from her husband or that she fears harm from her husband on return to Fiji.
For the reasons given above, and having considered the applicant’s claims individually and cumulatively, the Tribunal is not satisfied that if the applicant returns to Fiji now or in the reasonably foreseeable future that she faces a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution, the applicant does not meet the definition of refugee in s 5H(1) and does not satisfy the criterion set out in s 36(2)(a).
Does the applicant meet the complementary protection criterion?

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s 36(2)(aa).
The Tribunal has considered whether on the evidence before it, there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Fiji.
For the reasons set out above, the Tribunal has found that there is not a real chance that the applicant will experience harm from her mother-in-law or brothers if she returns to Fiji. The ‘real risk’ test under the complimentary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion[10]. This applies equally to the assessment of ‘well-founded fear’ for the purposes of s 5J. It follows the Tribunal finds that the applicant does not face a real risk of significant harm from her mother-in-law or brothers.
[10] MIAC v SZQRB [2013] FCAFC 33.
As discussed above, the applicant has stated she fears general harm on return to Fiji, including from within the community in terms of verbal abuse and negative comments, and due to thefts that are occurring in Fiji generally. The applicant also fears harm generally and does not trust people on account of her past abuse. The Tribunal acknowledges the applicant’s past traumatic history and the impact this has had on her adult relationships and experiences within her community. Whilst the Tribunal acknowledges the applicant’s wellbeing and self-worth has been affected by past verbal comments made about her life choices and financial circumstances and her trauma, as raised with the applicant at hearing, the Tribunal does not find the applicant’s general fear of harm in Fiji and the verbal comments that may be made about her amounts to significant harm in accordance with s 36(2A) of the Act. The types of harm that will amount to ‘significant harm’ are exhaustively defined by s 36(2A). Under this provision, a person will suffer significant harm if he or she will be arbitrarily deprived of his or her life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. The Tribunal appreciates the applicant finds it difficult to trust and generally fears people and is distressed by the verbal comments made in her community about her, including in relation to her child, financial circumstances, and life choices, but does not find these concerns amounts to significant harm in accordance with the Act.
In relation to the applicant’s general fear of harm in Fiji, including in relation to thefts, as discussed with the applicant at hearing and raised above, the country information provides Fiji is general stable and secure and crime rates, especially for violent and organised crime, are generally low. When the Tribunal raised with the applicant at hearing that it may not find she faces a real chance of significant harm on return to Fiji in relation to her general fear of violence, the applicant referred to the response time of the police and risks to her life without any specificity as to who it was that she feared harm from. Whilst the Tribunal has accepted petty thefts and crime occurs at times in Fiji and that her son was the victim of two thefts, there is no persuasive evidence before the Tribunal that there is a real risk the applicant will be a target of any theft, crime, or harm on return to Fiji. There is no evidence before the Tribunal that the applicant was a target of any thefts or crimes of a similar nature in the past in Fiji or that she is the target of anyone who would conduct such crimes in the future if she were to return to Fiji. The Tribunal finds on the evidence before it that there is not a real risk the applicant will face significant harm on return to Fiji in relation to her general fear of harm, crime, or thefts.
At hearing the applicant stated she did not think she would be able to find work on return to Fiji, the wage in Fiji is low, and she fears she will have to rely on her husband and others to do things for her. In her written claims she indicates her husband has to share his income with his family. At hearing the applicant explained she has been working in health care [and] that she has been able to send money back to Fiji, including to her son, husband, cousin, and church pastors. The Tribunal finds the applicant has developed skills in Australia that she would be able to utilise on return to Fiji. The applicant has been able to travel to a foreign country and find paid work and look after herself. The applicant has been able to work in Australia despite her mental health symptoms and without obtaining any mental health support services. The country information, referred to above and discussed with the applicant at hearing, indicates there are job opportunities in Fiji and the Fijian economy is stable and the hourly rate has increased to FJD $4/hour.
Whilst the Tribunal acknowledges the wages in Fiji are not as substantial as those in Australia, and the job opportunities may not be as plentiful, the Tribunal finds the applicant has a work history in Australia that would assist her to secure employment in Fiji and she has family in Fiji, including her [age]-year-old son and cousin, who could assist her whilst she re-establishes herself, obtains employment, and engages in mental health treatment if she wishes to do so. The applicant has illustrated in her establishment of work and personal connections in Australia that she has the skills and resources to provide for herself. Given the applicant’s work history in Australia and ability to send funds overseas to family members and pastors in Fiji, the Tribunal finds the applicant has skills that will equip her to find work in Fiji and supports in place that will enable her to obtain an income and re-establish herself in Fiji without relying on her husband or others for financial or other assistance. The Tribunal does not find on the evidence before it that the applicant’s economic concerns amount to significant harm in accordance with s 36(2A) of the Act. The Tribunal finds any economic hardship the applicant may experience on return to Fiji, including whilst she finds work or connects with mental health supports, would not be the result of any intentional or deliberate act to cause the applicant harm.
The applicant explained during the hearing she did not want to go back to Fiji, and she was worried about her mental health, to the extent she feared she would take her life in Fiji if she returned there. The applicant explained she had attempted to take her life in Fiji in 2011 or 2012 and was able to combat those thoughts. Whilst the Tribunal accepts the applicant prefers her life in Australia, has found work and purpose in Australia, and understands that she does not want to return to Fiji and face people that have previously judged her and made negative comments about her, the Tribunal finds there are mental health services available to the applicant in Fiji to assist her to combat her negative feelings and self-perception and enhance her mental health. In these circumstances the Tribunal finds in respect of the applicant’s mental health concerns on return to Fiji, there is not an actual subjective intention to cause the applicant pain, suffering, or humiliation or an intentional act or omission resulting in the deprivation of her life. The Tribunal finds the definition of significant harm in s 36(2A) does not encompass self-harm or harm arising from mental illness[11].
[11] CHB16 v MIBP [2019] FCA 1089; EZC18 v MHA [2019] FCA 2143.
On the evidence before it, whilst the Tribunal is sympathetic to the applicant’s circumstances, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that she will suffer significant harm. That is, the Tribunal is not satisfied that there is a real risk in being removed from Australia to Fiji that she will be arbitrarily deprived of her life or suffer the death penalty; or subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment.
The Tribunal is therefore not satisfied the applicant is a person in respect of whom Australia has protection obligations under s36(2)(aa).
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

100. Having concluded that the applicant does not meet the refugee criterion in s36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s36(2)(aa).
101. There is no suggestion that the applicant satisfies s36(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 applicant does not satisfy the criteria in s 36(2).
DECISION
102. The Tribunal affirms the decision not to grant the applicant a protection visa.
Rachelle Johnston
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 3110

2 May 2024

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