2403342 (Refugee)

[2024] AATA 4138

2403342 (Refugee) [2024] AATA 4138 (1 July 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Emily Pullen

CASE NUMBER:  2403342

COUNTRY OF REFERENCE:                   Fiji

MEMBER:Melissa McAdam

DATE:1 July 2024

PLACE OF DECISION:  Sydney

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 01 July 2024 at 3:14pm

CATCHWORDS

REFUGEE – protection visa – Fiji – particular social group – women – family violence – physical assault – sexual assault – fear of killing – state protection – decision under review remitted

LEGISLATION

Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES

Applicant A v MIEA (1997) 190 CLR 225
Chan v MIEA (1989) 169 CLR 379
Chen Shi Hai v MIMA (2000) 201 CLR 293
MIMA v Khawar (2002) 210 CLR 1
Minister for Immigration and Ethnic Affairs v Respondent A (1995) 57 FCR 309
Morato v MILGEA (1992) 39 FCR 401

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 February 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of Fiji, applied for the visa on 24 November 2023.

3. The applicant was represented in relation to the review.

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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.

8. 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

9. 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.

   Protection visa application

10. The following is a summary of the claims and information the applicant provided in her Protection visa application:

    a.She was born in Suva in Fiji in [specified year]. She submitted a copy of her Fijian passport.

    b.She married in 2003. She has a [child] born in [year], a [child] born in [year], and a [child] born in [year].  Her children are living in Fiji.

    c.Her mother, step-father, and [specified family members] are in Fiji.

    d.She completed a [qualification] in Fiji.

    e.She works as a cleaner in Australia.  In Fiji she worked [in several specified jobs].

    f.She was granted a subclass 403 visa and first arrived in Australia in December 2022. She last departed Fiji in October 2023 and arrived in Australia on the same day. 

    g.She is afraid of her husband who is a violent and abusive man.  She would run away from him back to her parents’ home but he would come there and drag her back. She is afraid he will continue to abuse her if she returns to Fiji.  There is no adequate protection for women in Fiji.  Her husband will be able to find her if she tries to live somewhere else in Fiji.

11. The applicant provided the following documents in support of her application:

    1.   A Statutory Declaration.

    2.   Her Fijian Birth Certificate.

    3.   Her Marriage Certificate dated [in] January 2003. Her husband’s year of birth is recorded as [year] and his occupation as ‘[occupation 1]’.

    4.   Employment Certificates.

    5.   Education Certificates.

12. In the applicant’s Statutory Declaration she writes:

    a.She was raised [in District 1].

    b.She currently lives with her boyfriend in Australia.

    c.She married her husband in 2003.  He is [an occupation 1]. He worked in the [Agency 1] during the coup. He had been previously married. He told the applicant he was cheated on and that he had one [child of that relationship].

    d.The applicant’s [child] was born before she met her husband.  [The child’s] father was a drunk. She was never married to [the] father. 

    e.Her husband seemed like a family man and he interacted nicely with the applicant’s [child]. After a few months they started going out together. He seemed very caring and attentive.  They started living together on the main island.

    f.The first time she saw her husband’s anger was when they went to Suva together.  The applicant met her [child's] father by accident at the bus station.  Her husband asked the applicant who he was and she told him it was her [child's] dad.  He started yelling and swearing at the applicant. He then just left her at the bus stop. She had no idea what to do and a man helped her catch the bus home.

    g.After this her husband’s jealousy would boil up. The applicant is a warm friendly person and would talk to people on the street. Her husband did not like this.  One day she called to a woman to come have breakfast with her. Her husband did not like this and hit her head with an iron rod.  When she ran outside her husband’s aunt was there and told the applicant to go back to her husband.

    h.Her husband would beat the applicant and tell her no one would love or care for her if she left him. He suggested she was worthless.

    i.The beatings happened for the first three years of their marriage. Her husband was excited when the applicant became pregnant with her second child. The applicant had severe morning sickness and her husband kept his distance. When she recovered the beatings started again. They married while she was pregnant.

    j.After their daughter was born the applicant had 4 more pregnancies but lost the baby each time.  She was beaten by her husband during the first two of these pregnancies.

    k.The applicant’s father passed away in 2003 and the applicant’s [child] went to live with the applicant and her husband in [Town 1] in Central Fiji.

    l.The applicant’s parents did not know that her husband beat her as much as he did.

    m.Her husband worked for [Agency 1] [between specified years].  He then had to do [an overseas project] with [another agency]. He was away for a year.  He did [this work] again in 2012 because the applicant reported him to the court about his violence and he was ‘bound over’ for three years. He was away from 2012 to 2013.  His last period of [this work] was 2018 to 2019.

    n.When her husband was away the applicant’s life was peaceful but he would talk to her on the phone. She would have to answer after one ring. If she answered after two rings he would accuse her of having an affair.  When he would return it would be the worst week of her life because of the beatings. He would shake her to wake her up to listen to every word he said.

    o.In 2002 she tried to report her husband to the police. She tried 4 or 5 times. The police would write it down but make her reconcile with her husband.  Just once they ended up in court. The magistrate tried to get them to reconcile.  Her husband was bound over, not to do anything wrong for three years or he would go to gaol.  The applicant does not have any documents about this. The police only keep records for ten years.

    p.The applicant came to Australia in December 2022. She has been back to Fiji twice, each time for her daughters.  Every time her husband swore at her over the phone she could hear him taking it out on her daughters. They would cry and tell the applicant he was beating them.

    q.She did not apply for protection earlier because she did not know about seeking asylum.  Lawyers cost thousands of dollars.  She saw an ad for RACS on Face Book.

    r.Her first return to Fiji, for around 10 days, was bad.  She returned for [a family event] to help her sister. She also wanted to see the waters. In Australia she received phone calls even at work pressuring her to “do this” “don’t do that”. After a few minutes of talking her husband would be swearing.

    s.When she went back to Fiji her children and family were very happy.

    t.The first night her husband was rushing the applicant to go home because he wanted to have sex. He raped her. She told him that she did not come back for him, she came for the family. She told him she had to get up and cook for the next day. He yelled at the applicant in front of everyone telling her “we have to go home”. The applicant was scared so she brought her two sisters with her. In front of them he swore at the applicant. She felt like she was being cut open and her insides torn out by the words he used.

    u.She went back and bought a car for him. She paid her daughter’s fees for college. She used the money she had earned in Australia.

    v.She and her two sisters ran away that night. Her husband was looking for her everywhere. She rang him and said “I’m not coming back because I’m scared”. She went with her [specified children] to her other sister’s house. Her husband was waiting for her there and telling her sister and mother she had run away from him. She was shocked to see him waiting for them. She went straight to her niece’s room and just lay down.

    w.Her husband started swearing throughout the house. He used his foot to kick her forehead three or four times. The applicant was very ashamed because her mother was there. The applicant didn’t make a sound. The applicant’s sister came in, grabbed her husband’s hand and told him to go out. The applicant’s brother-in-law came and yelled at him too.

    x.They reported her husband to the police. Because he was [an occupation 1] the applicant thinks he knows somebody there. They called the applicant to come and they “solved the problem” there. Her husband was released without charge. Nothing was written down. It was him just asking forgiveness and to go back home.

    y.When they went back home it started again.

    z.The applicant recently asked her mother to ask for a copy of a report, but they told her none was recorded.

    aa.The second time she went back to Fiji was from [September] 2023 to [October] 2023. She wasn’t working in Australia and her visa was about to expire. She didn’t know about visa extensions and didn’t have the money to pay any lawyers. When she reached home the first day she arrived was horrible. Her husband swore at her and was very angry. The applicant didn’t have money like the last time. He said “you come empty handed” and was angry that she didn’t have money for him.

    bb.The applicant started [specified work] during that week and she slept in the car.

    cc.One day she was in the kitchen and her husband went to the car and got the applicant’s purse so he could leave her without the means of going anywhere. The next day she saw her passport had been defaced.

    dd.The applicant was about to drive the car and her husband was yelling and screaming at her. She ignored him and he ran after her, locked the car doors and said he was going to kill her.  He climbed into the car through the boot and grabbed her neck. She started the engine and told him she would kill them both to let the children live in peace. He then went out and told her not to come back.

    ee.The applicant is afraid her husband will continue to abuse her physically and verbally in Fiji.

13. On 1 December 2023 the applicant submitted a handwritten letter from her sister, [Sister A], on behalf of herself, her mother and her stepfather.  [Sister A] writes the following:

    -    She is the applicant’s [sister].

    -    She, her mother and stepfather witnessed and heard of the applicant’s husband, [Husband A], being dangerously violent and abusive to the applicant.

    -    At first the family had no idea what the applicant was going through, until her recent visits to Fiji.

    -    The applicant called her family a few days after she arrived and told them things were escalating badly in her house.  Her husband had threatened to destroy her passport or kill her.

    -    [Husband A] went to [Sister A’s] house and played the victim.  At first [Sister A] and her family were confused because the applicant had kept this side of her marriage within her walls.  Later the applicant arrived with the children and was shocked to see [Husband A] there greeting them as though nothing had happened.  [Husband A] tried to maintain his calm but soon erupted swearing and cursing when the applicant explained everything. It turned into a huge scene so they had to call the police to calm the situation. As [an occupation 1] [Husband A] knows the law and how to act. That was a warning before they went home together.

    -    The applicant is loving and forgiving and always gives in when it comes to the benefit of her children.  The abuse did not stop. It happened again and the applicant had to be saved by [sisters] when she ran at night.

    -    On another day the applicant ran to [Sister A’s] house followed by her husband while [Sister A] was in the shower.  When [Sister A] came out the applicant was on the bed in [Sister A’s] daughter’s bedroom.  Their mother and stepfather were in the living room. [Husband A] barged in and stomped on the applicant’s head three or four times. [Sister A] yelled at him and pushed him out.  The applicant did not make a sound so as not to disturb the family.  All this happened within a week.  They convinced the applicant to go back to Australia for her safety.

    -    [Husband A] was confident that no one was going to stop him. From what the family witnessed [Husband A’s] goal was to hurt or kill the applicant.   He used fear to control her and the children.

    -    The applicant is very determined and hardworking. For her children’s future she applied for work in Australia. After about seven months she returned to Fiji [in July].  She had purchased everything that was needed for one her daughter’s university requirements including fees.  She paid off bills and bought a car for her husband.  She flew back to Australia before the week ended after a horrible five days of suffering.

    -    The applicant returned to Fiji again in September because she was without a job and needed to renew her visa.  She called [Sister A] when she arrived to tell her that [Husband A] was at the airport to pick her up.  He swore at her because she had brought nothing. The violence and abuse continued for weeks.

    -    The applicant drove to earn money and slept in the car at night. One day her husband opened the boot of the car and climbed in and tried to strangle her. She swerved the car and he fell out.

    -    Later in the night the applicant went to check on her children. In the morning after a heated encounter with her husband she fled on foot with her youngest son.  Her husband caught up with them and tried to run them over. They had to jump into a drain. 

    -    At night they had to return when her other daughter finished night shift. Her husband rounded them all up and punched the daughter on the breast so she was fighting for breath. He punched the son on the head. A crowd of people witnessed this including a dumb police officer who said he was off duty and to call the police station. Her sister called the police station and her home.  [Sister A’s] husband went to pick up the applicant and her children and took them to their home. The police took [Husband A] to the police station. He was not charged with anything and the applicant was told to forgive him.

    -    The following week the applicant’s purse went missing. Her passport was scribbled upon. Her husband admitted he had scribbled on it. The rest of the lost items were not found.

    -    The applicant’s life got worse not better. She was determined to return to Australia and was able to travel with the scribbled passport.

    -    The applicant needs help and protection in Australia.

    Delegate’s Decision

14. The applicant was not offered an interview. 

15. The delegate did not assess the credibility of the applicant’s claims. 

16. The delegate found that the applicant could access support and protection in Fiji so the delegate was not satisfied that the applicant had a well-founded fear of persecution in Fiji, or that she was owed complementary protection.

    Information to the Tribunal

    Pre-Hearing Submission

17. On 7 April 2024 the applicant submitted the following materials to the Tribunal:

    -     A written submission by the applicant’s representative.

    -     A further written statement by the applicant.

    -     A written statement by the applicant’ daughter [Daughter A].

    -     A written statement by the applicant’ daughter [Daughter B].

    -     141 pages listing hundreds of Whatsapp messages and calls by the applicant’s husband to the applicant during the period 27 November 2023 to 22 April 2024. Most of the messages are in the Fijian language.

18. In the applicant’s statement she writes:

    I continue to rely on my statement dated 1 December 2023. I want to provide a supplementary statement to share what has happened since December 2023.

    My husband, [Husband A], has continued to contact me and abuse me over WhatsApp and via phone calls. He contacts me.

    I can’t block him because of the children. I so badly never want to speak to him again and to let go of all the things he has done to me in the past – but I cannot for the sake of my children. Some of them live with him and I feel like he will abuse them if he can’t contact me anymore. I don’t want to think about what he would do – he has done it to me and I feared for my life with him. I would never forgive myself if he did something this awful to the kids because he was not able to contact me.

    Please see attached a sample of screenshots from my WhatsApp showing that he is still interested in me, contacting me regularly and verbally abusing me.

    I have also been going through a difficult time in Australia. My ex-boyfriend who lives in Australia, [named], has perpetrated domestic violence against me. I know it is an option for me to report this to the police. I am thinking about it although I have so much happening right now. I moved out of his house and am not in contact with him anymore and he is leaving me alone now.

    There is so much going on in my mind. When I lived in Western Australia, I saw a counsellor in [named town].

    I haven’t been able to afford a counsellor in NSW, however my RACS lawyer has told me that free counselling for asylum seekers like me is available through STARTTS. I have been referred to STARTTS and am looking forward to starting sessions with them soon.

    I want my mind to heal. I want my body to heal too. It has felt impossible for so many years to get my life back on track. I hope that I am granted permanent protection in Australia because it is time to look after myself.

    I follow a page on Facebook that provides updates on the situation in Fiji. Just last week they posted about another lady that was murdered by her partner. This is the reality in Fiji – these things happen every week because that is the culture in Fiji and there is no one who can provide real protection for women like me.

    I have also read the supporting statements that my daughters have provided. It was hard for me to read these statements as I know it difficult for them to talk about these times. They have mentioned events which happened to me in the past which I did not mention in my statement dated 1 December 2023, but it is true that they happened. It is not possible for me to have explained all the times where he abused me over the years in my statement dated 1 December 2023. I am sorry that I had not mentioned these stories which my daughters shared at an earlier time.

1. In the applicant’s daughter [Daughter B’s] statement she writes.

   I was born on [date] in Fiji. I am a Fijian national.

   This is very hard to talk about but I want to help my mum.

   Some of my earliest memories are about my dad abusing me and my mum. I was very young.

   Back when I was in primary school, I would be awoken in the middle of the night by my dad shouting at my mum.

   Sometimes I saw my dad punch my mum. I saw him pick up stuff from the house and throw it at her like the dishes and TV. Sometimes my mum would have to leave the house. My dad would wake us up and make us go get our mum and bring her home. Sometimes he would go himself and try look for her

   I remember one particular memory that was really bad. This was when my dad slammed my mum’s head into a door, the first door on the bedroom side in the living room that opens out onto the village. My [sister], [Daughter A], started screaming and crying which I think made my dad stop. I think that he would have kept hurting mum if it wasn’t for my sister’s scream. I remember running to my mum and hugging her head.

   My [sister] [Daughter A] was a softie - she would cry a lot when it happened. I didn’t know how to react – I would just watch. [Daughter A] would also try to distract me but I was aware of what was happening.

   Sometimes Mum would lock us in the house with her, and dad would be outside throwing rocks saying “open the door”.

   Sometimes, the police would come and check on us. I think it was the neighbors that would call the police, although sometimes my mum would call. The police were not helpful. They would only tell my dad to calm down, and sometimes tell me, my mum and sister to go stay somewhere else for the night. I couldn’t really tell what they were talking about because they would talk to my dad outside. Once we went to stay at neighbors and I asked why we are here and my sister said “dad keeps hitting mum”.

   The village headman and the pastor would come to our house sometimes as well. They would come to our house if they heard us because the pastor’s house is a few houses down from ours. Even though they interfered, my dad’s actions towards my mum didn’t change.

   In form 5 at school, my sister, my mum and I were staying with my mum’s relatives so we were close to school. Dad stayed back in our house which meant we lived far from my dad. In form 6 we rented a place in [Town 2] just for us, and dad came back. When my dad was working a lot and he was busy it was less bad. When he has spare time to overthink, that’s when the problems would start with my mum. He has a big problem with jealousy and is very possessive over mum.

   When I was younger, I didn’t really think that much about it – it was all I knew. But now that I am older, I look back and understand how bad it was. The first person I told about it was my best friend from high school and I only told her this year. I am so glad that my mum is safe in Australia now. She went through too much.

   Recently when mum was visiting for [a family event], I was in Suva but my sister told me dad tried to run mum over and scribbled in her passport to stop her from coming back to Australia. Since I am in Suva, I don’t witness much now. But my sister still lives with my dad and she finds it very hard. When my Mum went to Australia my sister would call me upset and say, “this is what mum had to go through everyday”.

   I am in Suva but I go home to see my sister once or twice a month.

   Right now, my dad is so suspicious with his phone but sometimes I check his messages when asks me to delete things on his phone. I see he threatens my mum. He says things like he will go to his relatives in Australia and try to get her deported. Sometimes he gets a bit crazy. The way he speaks about my mum is so possessive.

   The house I’m staying at in Suva, is with my aunty and uncle. They have a very respectful and loving relationship, it has made me look at my dad’s behavior to my mother very differently.

   My only hope is that my Mum stays in Australia. She is safe there and it is the first time in her life she is free, and no one is telling her what to do every moment of the day.

2. In the applicant’s daughter’s [Daughter A’s] statement she writes:

   I was born on [date] in Fiji. I am a Fijian national.

   I work full-time at the [business type].

   The first memory of the domestic abuse of my father to my mum was when I was in Kindergarten. Since then and for as long as I can remember, I have witnessed my dad punching, slapping and using objects like a hammer to hurt my mum. It would happen in the day and the night My dad would often accuse mum of doing something wrong and then hurt her.

   I remember once that my mum was taken to the hospital because my dad punched her really bad and used a metal pole during the night. My mum was covered in blood. The police were called. I don’t know who called them but the neighbors heard this noise and came over, so maybe them. My aunties took us home from the hospital and looked after us for a while.

   I remember a few times the police came, they would give him a warning, give him a paper and my dad would say something like “I will try my best”. My dad is an [occupation 1] so he knows the law. He sometimes stopped for a few weeks after the police came but would then start all over again.

   My dad would even yell and slap mum in public. He had no shame and it did not stop.

   This has happened my whole life.

   When my mum came back to Fiji last year, it was like nothing had changed. The abuse continued.

   I witnessed my dad nearly kill her with a car. My dad was punching mum so she went outside with my younger brother. My younger brother is biologically my cousin but has lives with us. My mum was walking on the road with my little brother and my dad got in the car and chased them down the road. My mum had to jump into the drain with my brother to get out of the way. My mum [suffered an injury].

   I went and tried to stop him but he got out of the car and was say some very bad stuff, swearing, and mentioning the past like “before you came into this family, you had a child, I had to look after this child, you are lucky I help you, you should thank me, you are good for nothing”. I went over to try stop him but he hit me and I got shortness of breath. I went to the hospital, the doctor said I have a breathing problem.

   I live with my dad at the moment – it is him, me and my [brother] in the house.

   I stay for my [brother] who is still in schooling, [grade].

   When my father is on the phone to my mother now, I hear him get angry, accusing her of having an affair. I overheard him two or three weeks ago he said to her, “if I see you, if you come again, you know what I would do you”. I am so scared about what he will do to mum – I have seen him hurt her before and I fear that one day he will kill her.

   It is better if my mum doesn’t come and stay here again.

   For me it has caused a lot of trauma. When I am sleeping, I have nightmares of those times and I have to wake up and remind myself that is not my mum’s reality now.

   Tribunal Hearing

3. The applicant appeared before the Tribunal on 15 May 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages. The following is a summary of the information provided by the applicant at the hearing:

   a.The applicant returned to Fiji in July 2023. From the airport she went to her sister [Sister A’s] place.  Her husband arrived while she was there.  He later left with the children in a hire car.

   b.The applicant clarified the information in her December 2023 Statutory Declaration. She confirmed that her husband had raped her in a vehicle on her first return to Fiji.  He had pressured her to leave her sister’s place and then raped her in the car. She then demanded he take her back to her sister’s place.

   c.The applicant decided to go to her home with her two sisters because her husband kept calling her.  When she arrived home he was angry and swearing so she sent her two sisters to the car. The applicant ran to the car and her husband followed. She and her two sisters were able to get away but her children remained at home.

   d.The applicant and her two sisters went to a friend’s place and then back to [Sister A’s] place. Her husband looked for her and went there. He hurt her at [Sister A’s] place.   He tried to drag the applicant out of the house. The others all yelled at him and he left in the car.

   e.The police did not arrive because they had no vehicle available. The police told the applicant and her family to report the incident at the police station.  She and her family went to the police station and then they brought her husband in to have a chat. The police didn’t write anything.

   f.The applicant stayed another week and a half in Fiji, at her sister’s place and in the car. Most nights she slept in the car.  The applicant had no more contact with her husband on that visit.

   g.On the applicant’s second trip to Fiji she only took a small suitcase. On her first visit she brought back 11 suitcases of things for people.  The applicant’s husband was angry at her for bringing back so little. They argued at a service station and he told the applicant to walk the rest of the way. It was about 100 kilometres. She started walking but eventually he drove back and picked her up.  She was crying and praying.

   h.They went home but nothing had changed. She mostly stayed in the car.  When her husband went to work the applicant went to her sisters’ places.

   i.After a week or so her husband came over and tried to drag the applicant and their daughters away. The applicant gave in and went home with him.  Her husband started yelling at her.  She took her nephew and started along the road. She told her husband she was going to her sister’s.  Her [Daughter A] heard the applicant’s husband yelling.  He got in a car and was chasing the applicant and her nephew.  She and her nephew had to jump into a drain to save themselves.

   j.When her husband returned home [Daughter A] yelled at him and he punched her. She lost breath and the applicant had to take her to [a named] hospital.  A doctor examined [Daughter A] and gave her a prescription for tablets.  The applicant does not know if the hospital would have a record of this.

   k.Later the applicant was packing her luggage and saw that her passport had been scribbled on. Her purse and ID were missing. She went to her sister’s place.  The next day the applicant went to the airport.

   l.There was a morning when her husband was yelling at the applicant while she was in the car and the neighbours heard.  Her husband ran up to her while she was reversing.  He opened the boot and crawled inside and held her by her neck and tried to strangle her. So the applicant accelerated and then stepped on the brakes and ran into a pole to stop him.

   m.While she was in Fiji the applicant bought a car for her children for her work. They all have to pretend the car is for her husband.

   n.The applicant responded to just a few of her husband’s Whatsapp messages.  Because she is in Australia she has freedom to talk back. He just kept swearing at her so she would swear back to make herself feel better.

   o.The applicant has no close family in Australia. She has some extended family who are a bit far from her but she does not have much contact with them in Australia.  None of her family have visited Australia while she has been here.

   p.The applicant lives alone in a share house with three gentlemen. They are from other countries. She has no relationship with them.  She works in a cleaning job, three to four hours a day.

   q.The most serious injury the applicant received from her husband was a time when he punched her in the face and she lost [teeth].  He also used an iron rod to whack her on the back of her head when she tried to run away from him.  This happened between about 2000 and 2003.  At the time he did not let her go to the hospital. It wasn’t until 2023 that she was able to get false teeth to replace the ones she lost. 

   r.The Tribunal put to the applicant that her bruising from her assaults would likely be visible to her family.  The applicant responded that her mother just cried and would treat her with hot and iced water and herbal medicines.  The applicant has difficulty even now and can still feel the pain in her head when it is cold.  Her sisters did not know about the abuse while the applicant was living in Fiji. Only her mother knew.  Her sisters lived far away back then.

   s.Her son is no longer staying at the family home.  There was a time when he did live there that he nearly punched her husband.  Her son is now living with the applicant’s sister. 

   t.Her husband was sometimes violent to their daughters when he could not catch the applicant. He would use a stick to hit their daughters to get the applicant’s attention to come back.

   u.The Tribunal asked the applicant why [Sister A’s] statement contained some difference from the applicant’s statement in their accounts of things that occurred. The applicant responded that [Sister A’s] statement was about things which occurred when she was present. She was frightened for their mother and other sisters. The applicant thinks [Sister A] is confused about which incidents occurred on which visit. On the first visit her husband dragged her out of [Sister A’s] house by her hair. On her second visit the applicant’s husband stomped on the applicant’s head and forced her out of [Sister A’s] house. The applicant thinks [Sister A] has confused the two incidents.

   v.The applicant’s husband punched her daughter in the chest on two occasions.  During the second incident the applicant’s husband punched the applicant and a crowd gathered because he was yelling.  A couple of days later the applicant returned home while her husband was at work. Her nephew, [Daughter A], and [Son A] were there. Her husband was supposed to work until night time but he returned home early. He saw them and started saying things. [Son A] stood up for the applicant and her husband tried to punch [Son A]. [Daughter A] tried to pull the applicant’s husband’s hand to stop him and he punched [Daughter A].  Her husband went to the car. There was a crowd outside. When the applicant went outside [Daughter A] ran out and wanted to throw rocks at the applicant’s husband but she couldn’t because of the crowd.  [Son A] called the applicant’s sister and her husband to pick them up.  Her husband even swore at the police there. He pulled the applicant’s bag and pointed at the applicant’s forehead and the children. The applicant’s brother-in-law tried to stop him.  They all got in her brother-in-law’s car and drove away to the applicant’s sister’s place.  Her husband followed them there.  At the applicant’s sister’s place her husband did the same thing. He went in and went to the room where the applicant was and stepped on her forehead. This incident occurred before the incident when he climbed into the boot of her car and tried to strangle her.

   w.The applicant told her previous representative that her husband was going to kill her. She has tried to move on here. She made a romantic friend.  Her husband must have overheard her conversation with her daughter telling her about him. Her daughter rang the applicant the next day very upset as the applicant’s husband had said he would take the applicant’s intestines out if she returns. 

   x.Once her husband came back from [work overseas] and brought a knife with him. He sat down and the children ran to greet him. He took out the knife from his bag and started filing it and told the applicant this is for you.  The applicant ran away.  Her parents were staying with her and were at a place down the road. Her husband found them and told them he had just been kidding. They took the knife from his bag and threw it in the sea. 

   y.The Tribunal asked the applicant about a photograph on her daughter’s FaceBook account which shows the applicant, her husband and their [specified children] at the airport in Fiji in October 2023.  The applicant responded that this was the last day she set foot in Fiji.   She and one of her daughters were going to the airport and were on their way to pick up her other daughter where she worked, just before their place. Her husband was waiting on the road as he knew she was going to the airport. He stopped them and he got into the car. The applicant asked him why he scribbled on her passport.  They had an argument and her daughter asked him not to create anything more because they were not going to see each other again.  They reached the airport and when the applicant was checking in her husband’s [child] by his previous marriage was there.  The applicant’s daughters didn’t want [that child] to know something happened and there was a problem in the family. So they organised the picture to be taken. That is why the four of them are in the photo together as though nothing happened.

   z.While the applicant was living in Western Australia her husband would call her.

   aa.The applicant showed the Tribunal her mobile phone opened to the WhatsApp pages of messages from her husband.  The applicant read out a few of the messages her husband had sent her on WhatsApp in the Fijian language which the interpreter then interpreted. One was a threat to have the applicant deported from Australia. Another was a threat to ‘gut’ and kill the applicant because she was trying to run away. The third was another threat to kill her. The messages also contained abusive, offensive and insulting words. 

   bb.The Tribunal asked the applicant why the printout she submitted contained no messages prior to 23 November 2023, the day before she lodged her Protection visa application. The applicant responded that she had been deleting the messages until her lawyer advised her to keep them as evidence.  She is not sure when she first contacted her lawyer.  A lot of the contact was by phone.

   cc.The Tribunal asked the applicant if the Pastor who intervened to speak to her and her husband in Fiji could give evidence to the Tribunal and she responded no he has passed away.

   dd.Near the end of the scheduled hearing time the Tribunal raised with the applicant and her representative that there was still some confusion and inconsistencies in the applicant’s and her witnesses’ evidence which there had not been time to address.  The Tribunal informed the applicant and her representative that a further hearing may be necessary and the Tribunal would invite the applicant’s children and sisters to give oral evidence. In the interim the Tribunal invited further submissions and written statements from the applicant and her representative to clarify the evidence presented.  The applicant also undertook to try to get more medical and police evidence to submit to the Tribunal.

   Post-Hearing Submission

4. On 29 May 2024 the applicant’s representative submitted the following materials to the Tribunal:

   -    A written submission by the representative.

   -    A further written statement by the applicant.

   -    A photograph of the applicant, her husband and their [specified children] at the airport in Fiji.

   -    A photograph of the applicant in which it can be seen that [some] of her top teeth are missing.

   -    An email message from a lawyer at RACS dated 16 November 2023 referring to an initial contact phone call earlier that day; and setting out information how to lodge a Protection visa application and what information to provide.

   -    A Certificate of Court Proceedings from the [Court 1], Fiji, dated [in] May 2024.  It contains an extract with of a Court Order made [in] February 2009 in a criminal proceeding against the applicant’s husband. The offence described is ‘Assault Occasioning Actual Bodily Harm’ with the Particulars that [in] January 2009 in [Town 3] the applicant’s husband assaulted the applicant occasioning her actual bodily harm.  The court’s order against the applicant’s husband was ‘Bound over in the sum of $[amount] to keep the peace for 12 months’.

1. The applicant’s representative’s submission addressed issues of memory and trauma; highlighted the Tribunal’s Guidelines on Vulnerable Persons; and noted the applicant’s personal difficulties with recall due to both memory loss and the domestic violence she had experienced over many years, making it hard to differentiate between occasions and events.

2. In the applicant’s written statement she sets out the following:

   I would like to clarify a number of matters which were discussed at my first hearing with the Administrative Appeals Tribunal.

   The night I was raped by my husband in July 2023 and details of my trip to Fiji [in] July 2023

   Paragraphs 67 to 69 of my statement dated 1 December 2023 say:

   67. When I went back my children were very happy. My family were very happy. The first night he was rushing me to go home. He wanted to have sex. I was raped. I didn’t come for you, I came for the family. I told him I had to get up and cook for the next day. He yelled at me in front of everyone. He yelled “we have to go home”. I was scared so I brought my two sisters with me. In front of my two sisters he swore at me. It was like I was being cut open and tearing my insides out the words he used.

   68. I went back and bought a car for him. I paid for my daughter’s fees for college. I used the money I had earned in Australia. We ran away that night. Me and my two sisters. He was looking for me everywhere. I rang him and said “I’m not coming back because I’m scared”. I didn’t go back home until morning. I went to my other sister’s house – the one whose son was having a birthday. He was waiting for me there and telling my sister and my mum I had run away from him. I brought my [specified children] with me.

   69. It was shocking to see him waiting for us. I went straight to the room to my neice’s room. I wanted to sleep. I just laid down. He started swearing throughout the house. He used his foot to kick my forehead three or four times. I was so ashamed, because my mum was there. I didn’t make a sound. My sister came in, grabbed his hand and told him to go out. My brother in law came and yelled at him.

   I would like to clarify more about this.

   I was in Australia from [December] 2022 until [July] 2023. I arrived in Fiji [in] July 2023.

   I hired a car at the airport and drove home. The kids came out yelling hi to me when they saw the car and [Husband A] came outside too. I dropped my luggage at home, then I went to my sister [Sister A’s]s place with my husband and children.

   On the Saturday which I arrived, I was at my sister [Sister A’s] place preparing for [the faily] party which was going to be the following night – on the Sunday.

   As I explained, my husband was there at [Sister A’s] with me. He spoke to me in a way that was shameful - insisting basically that he wanted to take me home right now to have sex with me and swearing at me in front of my family. I didn’t want everybody to know and wanted to keep him quiet.

   I was so ashamed and wanted to keep peace in front of the family, so I just followed him to the car.

   He drove the car with me in the passengers seat about 10 minutes down the road.

   He then raped me in the car on the side of the road – it was rape because I did not consent. It was near a bankrupt and empty shop where there was a place to stop out the front.

   When he was done, he told me we were going home, but I said that I wanted to go back to [Sister A’s] house to continue assisting with the party preparation. He took me back to [Sister A] house and was yelling at me.

   He was pissed off when he dropped me off. He took the kids with him and drove back home.

   While I was at [Sister A’s] place he kept calling my phone. I didn’t answer at the start but eventually I answered. I told him that we were still preparing for the party. He said that it was not my problem to help to prepare and asked me to come home.

   I asked my two sisters [Sister B] and [Sister C] to accompany me home because I was scared to go alone. I told my sisters that if I did not go home like he had asked, that I was worried he would do something to the children.

   My two sisters [Sister B] and [Sister C] accompanied me back home to make sure I was safe.

   It was a good thing they did because when we got there he woke up. He started all over again – yelling and swearing at me in front of my sisters.

   I told my sisters [Sister B] and [Sister C] to go to the car. I did not want them to see me like that.

   We decided to go back to [Sister A’s] place but we stopped on the way at a friend’s house. We were at the friends for a few hours. We did this because he would have known that we would have been going to [Sister A’s] house so we went to take a few hours there. This was in the early hours of the morning.
   While we were at my friend’s house, [Husband A] did make his way to [Sister A’s] place like we had suspected. [Husband A] had arrived there with the children. He was there by the time we arrived, which was really scary.

   The children had gone inside [Sister A’s] house and he was in the area. The kids told me that he had asked them to go into [Sister A’s] house to see if I had returned. He was waiting outside in the area to check when I had returned.

   I said in my statement dated 1 December 2023 that ‘I had taken my daughters with me’. I got confused – the children were there at the house which is what made it confusing and why I told [Representative A] from RACS who took my statement that they were there, but they had actually arrived with [Husband A].

   It was morning by the time [Sister B], [Sister C] and I returned. He was still hanging around outside. My two sisters tried to exchange words with him to keep the peace.

   I went inside the house at this time when he was talking to my sisters.

   I felt that I really needed to lie down – I was overwhelmed and hadn’t slept. I was inside lying down in my niece’s room for about 5 minutes before he came inside.

   He came and found me in the bedroom and started kicking my head and pulled my hair. He tried to drag me from inside the house and was stomping on my head.

   My mum, my step-father, my sisters and my children were there. They were all witnessing what happening and were very shocked. They were trying to say things to stop him but he wouldn’t listen. My brother in law called the police but there was no officer or car available to come.

   We are taught that if a husband is punching a wife in Fiji – you can’t stop them. The husband will say to anyone who tries to stop him to ‘mind their own business’ and that husbands have the right to discipline their wives. This is the way it is.

   For the rest of the trip I stayed mostly at my sisters’ place and in the car.

   My second trip to Fiji from [September] 2023 to [October] 2023

   Paragraph 60 of my statement says:

   60. I first came to Australia from [December] 2022 to [July] 2023. Then I came from [July] 2023 to [September] 2023. Then most recently I came [in] October 2023.

   Paragraphs 72 to 75 of my statement say:

   72. The second time I went back from [September] 2023 to [October] 2023. I wasn’t working in Australia and my visa was about to expire. I didn’t know about visa extension and I didn’t have the money to pay any lawyers. When I reached home the first day I arrived it was horrible. He swore at me and was very angry I didn’t have money like the last time. He said “you come empty handed” angry that I didn’t have money for him. I started [specified work] during that week and I slept in the car.

   73 One day during this trip I was in the kitchen and he went into the car and got my purse, not to get money out, but to leave me without any means of going anywhere. I think he didn’t want me to come back. The next day I saw my passport had been defaced.

   74. In Fiji they tell you if your passport has been altered with you’re not allowed to travel.

   75. I was about to drive the car and he was yelling at me, screaming at me. I ignored him and went to the car. He came running after me and locked the car doors. He said “I’m going to kill you I’m going to kill you”. He climbed inside the boot got into the car that way and grabbed my neck. I started the engine. He was scared. I said “if you’re going to kill me I’ll kill us both, let the children live in peace”. He went outside and he told me not to come back home.

   I again would like to clarify events that happened to me during my second return trip to Fiji. It is difficult for me to differentiate the exact events that happened on the second trip. There were a few incidents where he threatened and harmed me. I now realize that I am getting these a bit confused but I have now done my best to explain these to my lawyer and have set them out below. I felt that there was pressure on me in the hearing to say that I remember it all clearly - however I find that because of everything that I have experienced, sometimes I forget details because I want to take it out of my brain and sometimes I confuse a few events. Sometimes also the abuse comes back to me very clearly which is awful and is why I think that I am remembering everything clearly. It is very difficult to speak about these things but I have explained the incidents to my lawyer as set out below:

   My second trip to Fiji, [Husband A] picked me up from the airport. He was annoyed that I didn’t bring much with me as I had only brought a small suitcase during that trip. It was just him that picked me up from the airport – there were no kids with him.

   Because I had only brought a small suitcase, he started to say to me things that were critical of me such as “why am I wasting fuel and money for me to get you from the airport with 1 small suitcase?”

   We went to a service station where he filled the car with petrol at [a named] Service Station. We had been in the car for about 1 hour and 30 minutes by that point. The whole time he was complaining that I hadn’t brought much with me. I just listened to it and kept my mouth closed. If I replied I may as well have been digging my grave.

   At this point to make clear just how much he was displeased with me - he started saying things about my parents. It really bothered me when he talked badly about my family. I could switch off when he was talking about me, but when he talked about my family and when the car was stopped, I spoke back to him, so he told me to walk. I got out and started to walk.

   I said in my hearing with the tribunal that it was around 90 or 100 kms to home from there. I didn’t know the exact distance in the hearing – but I have thought about it more now and it would have been about 60kms. Regardless – it was a long way.

   I walked for about 20 minutes.

   He eventually drove past and stopped to pick me up – I was crying and praying.

   I got back in the car and we continued home.

   We reached home and nothing changed. He was still abusive and aggressive with me. So I wanted to spend most of the time in the car or sisters – anywhere where he was wasn’t was where I wanted to be. There is no peace when I am with him.

   Instead of staying at home, I took the kids in our family car and stayed with my sister [Sister A]. I slept inside [Sister A’s] house with the children the first night.

   The next morning (the morning after I arrived in Fiji) I dropped my nephew [named] at school, [Daughter A] at work and [Daughter B] where she works [casually] . That day I was still staying with my sister [Sister A] and returned to her house for the day.

   He was contacting me via phone, explaining that I should have been staying at home with him and the kids.

   I picked up my kids in the afternoon and we went back to our family house. [Husband A] was not there as he worked in the afternoon. I didn’t know if we should stay and see him to keep him happy or if I should take the kids to my sisters once we had finished dinner.

   [Husband A] was supposed to come home from work around 9pm but he was earlier that day – around 5 or 6pm. I was not expecting him to return that soon so I didn’t get to choose whether to see him or not that day – he was there.

   We started to fight again. He was accusing me of having another partner in Australia as he had heard rumors that people who were working in the farm were coming to Australia to get married. He was accusing me of this.

   I stormed outside to the car to get away. I said in the hearing that this happened in the morning – I was very stressed in the hearing and have thought about it more now. This would have been later in the day after [Husband A] got home from work. As soon as I got into the car, he climbed into the car through the boot. From behind me, he held my neck from the back of my seat and tried to smuggle me and strangle me. I drove and then slammed the brakes. He stopped and went inside. The kids were still inside. I drove away to go to my sister’s house – [Sister A’s] house. I stayed for a few hours and told [Sister A] I was leaving to check on the children. I can’t remember where I slept that night. I think that I ended up sleeping in my car that night because I was too fearful to return home.

   This is the incident which I referred to in my statement at paragraph 75:

   75. I was about to drive the car and he was yelling at me, screaming at me. I ignored him and went to the car. He came running after me and locked the car doors. He said “I’m going to kill you I’m going to kill you”. He climbed inside the boot got into the car that way and grabbed my neck. I started the engine. He was scared. I said “if you’re going to kill me I’ll kill us both, let the children live in peace”. He went outside and he told me not to come back home.

   The next morning I arrived home. We continued to argue – he was being physically aggressive too and throwing punches.

   I was so sick of being treated the way he treated me so I told him that I was going back to my sister’s and that I wanted to go for good.

   I walked outside and my [nephew]. I took his hand and we went along the road. My other daughter [Daughter A] was lying in the room as she was tired from work. She heard yelling from her dad and she came outside. Her dad was already in the car chasing us on the road. That day I thought I would die.

   He pressed on the speed and started driving towards us very quickly. We had to jump into the drain to save ourselves. This happened 4, 5 or 6 times – he was coming back and forth for us. I lost count as I was trying to save my life.

   I was crying as I hurt [myself] and was very scared about what was happening.

   He went back home. My daughter [Daughter A] was scared of him and telling him to stop. He then gave her a punch in the chest area. I took her to the hospital for shortness of breath that night. The doctor in [Town 3] examined [Daughter A] and said she had shortness of breath and gave her prescription to take to a pharmacy. Since my hearing, my family attempted to get medical documents but they confirmed that they do not keep these records.

   There was another time that trip where there was a big fight. I was at our house with the kids and he was there. It is a constant cycle of me leaving, me returning to see the kids and to please him, an argument where I feared for my life and then me leaving again.

   I discussed this incident in my hearing. I was with [Son A], [Daughter A], [Daughter B] and my [nephew]. I was having tea with my kids. He arrived home and all of us were having a good time and laughing. He started saying negative things to me.

   [Son A] interrupted and told him to stop speaking to me in that way. That made him very angry. [Daughter A] was also trying to stop him.

   Me and the kids started to walk outside. I was telling my kids to leave the house and leave him. He followed us outside and was punching [Son A] and [Daughter A].

   A crowd gathered outside because of the yelling – my landlord who lived close to me was having a gathering so there were a lot of people that came outside. One of the people there was an off duty police officer. [Husband A] didn’t care that a police officer was observing. The police officer said to call the station.

   [Son A] and I called [Sister A] and her husband (my brother in law) to come.

   My brother in law was close by so he arrived and tried to settle the situation. [Sister A] was not there but heard about the incident later.

   [Husband A] was still yelling.

   We got in my brother in laws car and he took us to his house ([Sister A’s] house).

   [Husband A] had no shame and followed me to [Sister A’s]. My brother in law and [Sister A] told him that they would call the police. My brother in law called the police.

   As [Husband A] was beginning to walk home, the police were arriving and took him to the station. I understand that at the station they didn’t do much. It was like they always do – they just tell the husband to treat the wife better and they let the man go.

   My friends paid for my ticket back to Australia because I told them what I was experiencing.

   The photos of us at the airport

   On the day the photos were taken - this was the last day I set foot in Fiji. We drove back to the airport. I was on the way to pick my daughter [Daughter A] up from where she worked in [Town 3]. So we back tracked to where she worked – it’s about a 10 minute drive from my place to [Town 3] where she worked, but it is in the opposite direction from the airport.

   I picked up [Daughter A] from [Town 3], and then went back to [Town 2] to get [Daughter B] and my [named child] who were waiting at the house.

   [Husband A] was waiting there because he knew it was the day I was leaving. I only went to pick up my kids but he got in the car. I didn’t want him to come but I couldn’t say no.

   Along the way I asked why he scribbled on my passport. He started to talk – and so along the way we had an argument. My daughters asked him not to create anything more because this was our last chance together.

   As we arrived at the airport, [Husband A’s] [child] from an earlier relationship [named] arrived. He came running and smiling because he had not seen me or his half siblings in a while. He asked to take photos. My daughters want to come across as a normal family without problems. My daughters also understand that in Fiji some marriages are very bad, but that is life, and a wife is to stay in that bad place. We agreed to pose for the photo which is set out below:

   I understand that there are other family photos on Facebook, and that I have liked and commented on the photos of [Husband A] and our children looking happy.

   In relation to this, and to the photo above I want to explain. Firstly – you really can’t believe everything you see on social media. Even though we are smiling in this photo, we are not a happy family. Even though we present positively on social media, [Husband A] is a violent man who gets angry and physically violent with them and especially with me.

   Other than the physical violence, I also want to explain that their dad pressures them to maintain positive posts about him. When I was in Fiji I also had this pressure.
   Now that I am in Australia the pressure is off me, but I do try to respond with love to my children and with nothing but love. This is especially the case now that I am so limited in what I can do for them from here. I want them to know that I love them.

   Every time I see my daughters on Facebook that’s the only reaction I can make to them – it’s love.

   I know that he is friends with them on Facebook. I know that he will see all the uploads. When I was in Fiji he would say “why didn’t you react, why didn’t you comment?”. My daughters told me he continues to behave like this. So I know now to do love hearts or pretend publicly - I do it for the kids.

   You have to look at their side – my children’s side. They think of me and I think of them. I often say to them “I’m sorry it’s very difficult” – referring to the fact that I have left them in Fiji and fled to another country because I am afraid of their Dad.

   If my children were not at home with him then I wouldn’t see him or like the posts – but the reason I am doing this is because they are in Fiji together. Their relationship with their Dad is complicated and what I can do for them from here is really so little.

   I also have the habit of doing what he demanded from me in terms of social media from when I was in Fiji. There you have to submit to your husband, even though he made me feel like I was nothing, you have to submit. It’s not like here where the wife can tell him to stop and be supported by the Australian culture that domestic violence is not right. In Fiji you can’t.

   Even when the pastors used to come see us they would say to me as his wife that you have to submit, this is what I have been doing for 20 years - ignoring the pain and acting happy.

   The messages which I have access to from my husband

   At my hearing it was put to me that it was unusual that I only have records of messages from around 27 November 2023 and not before.

   I would like to explain more about this.

   Firstly, when I was receiving these messages from him – and there were a lot – my strategy to cope with them was just to delete them.

   I saw a message, I deleted it. That was how I dealt with them.

   I didn’t want any record of them. Why would anyone want to have this abuse saved to their phone which they use daily?

   The messages damaged me emotionally so I deleted them to try to remove them from my life and my consciousness.

   I first spoke with a RACS lawyer [Representative B] on 16 November 2023 by phone after I sent RACS a long email asking for help. She told me how to get my application ready and talked with me about what the Department would be interested in and not interested in with reference to my experiences. The email I received from [Representative B] from RACS is below:

   I asked for more help from RACS.

   Then met with a RACS lawyer [Representative A] in person on 1st December 2023 and I told her about my experiences in Fiji. [She] told me about evidence and why it is important to keep. So from then onwards I stopped deleting the messages from him as I understood that they would be important to show the things he says to me.

   Evidence of my physical injuries and domestic violence
   I was asked at my hearing whether I got medical treatment for my injuries. I told the Tribunal that he didn’t like me to go to the hospital. Usually he would take me back home and I would do an ice bag or use herbal medicine. I don’t have evidence of medical records. I did seek medical treatment a few times but mostly just dealt with the injuries at home.

   One serious injury I received was when he punched me in the face and I lost my teeth. This was early in our marriage. Here is a photo showing that I had lost my teeth:

   Another serious injury I received was when he used an iron rod to my back. There was an iron rod at home for when our window was timber and you had to pull it out with a rod. He used this to whack me from behind sometimes.

   I only got false teeth when I went back to Fiji from Australia the first time in 2023.

   Since my last hearing my sister [Sister B] has gone to the court to try to find evidence of the time we went to the police and then to the court in 2009. The court was not able to provide many documents about the court case because in Fiji complete records are not kept. We were previously told that they were thrown out after 10 years. These events are not well documented in Fiji like they are in Australia.

   When [Sister B] went back to the court recently, an officer at the court was able to provide a Certificate of Court Proceedings which I attach below. All other documents from the court case were not kept. In the Certificate of Court Proceedings you can see that [Husband A] was just told to pay $[amount] and ‘keep peace for 12 months’. I think this is a very small punishment for what I went through. He did not keep the peace and the police didn’t care. They can’t do much to resolve the family matters in Fiji:

   My family’s knowledge of the domestic violence I experienced

   I had bruising from beatings from him which would have been visible to my family.

   Most of the time my mum cried when she saw them. My mum helped me with ice water and herbal medicine from time to time. My mum knew about what was happening because she saw and because I told her, but she couldn’t do much because I had to listen to [Husband A] because he is my husband.

   My sisters didn’t see the bruises as they all lived in different parts of Fiji for many years. [Sister A] only recently moved to [Town 3] in around 2020 or 2021. Before that she lived in Nadi and before that in [Location 1] in the other Island. The reason I was with all my sisters during the first return trip was because we had all travelled for [the family event].

   They saw it for themselves when I returned to Fiji in 2023.

   My sister [Sister A] wrote a letter in support of my application. The letter details:

   - how I tried to keep things from the family to myself, that I “kept this side of my marriage within my walls”;

   - that in Fiji she saw him swearing and cursing and creating huge scenes necessitating the police being called;

   - that as [an occupation 1], [Husband A] knows the law and how to act and that he was confident no one would stop him; - her view that his goal was to hurt or kill me, and that she saw him using fear to control me and the kids;

   - that in September 2023 [Husband A] used abusive words and cussing because I brought nothing back, that the violence and abuse continued and that I had to [work] for money during the day and often slept in the car at night.

   There are a couple of incidents she describes in this letter that I also want to clarify. My
   sister is not legally trained or educated. I feel that this has impacted her ability to write a
   clear letter and to explain the events clearly. She also witnessed and heard about a few
   different incidents from myself and her husband which she wrote about in her letter, but
   she wasn’t always there:

   One is me coming to her place followed by my husband when she was in the shower. She says when she came out of the shower I was on the bed in her daughter’s bedroom with our mum and stepdad in the living room. She saw my husband barge in, past our parents into the bedroom and stop on my head three or four times.

   This happened and this was the morning of [the family event] which I described above.

   She also describes the following from my second trip to Fiji, which is a combination of a few different events:

   - my husband opened the boot of the car and climbed in, in an attempt to strangle me;

   - that I told her that I needed to go back that night to check on the children;

   - in the morning after a heated encounter I fled on foot with my youngest son;

   - my husband caught up with us and tried to run us over;

   - we had to avoid the car;

   - he responded by punching our daughter on her breast which left her fighting for her breath, punched our son on the head and a crowd of people witnessed this including a police officer who responded he was off duty;

   - that my husband was not charged and I was encouraged to forgive him.

   My sister had heard a few of these details from myself and other family members as she wasn’t always there she got the events confused at times. However each of these things did happen during my return trip.

   Unfortunately there have been so many threats by him, so many incidents of physical abuse, so many times that he has involved our children in his violence towards me that it is hard to distinguish each time from another. I feel that it is clear from her letter that there was a lot of challenging times that happened to me and that [Husband A] has been violent towards me which my family have seen.

   Conclusion

   I understand that at my hearing it was put to me that the Tribunal may find that it is not credible that [Husband A] was not violent or that I fear him.

   I want to say very firmly, that this is simply not the case. I am afraid of him. I do continue to be very afraid of him.

   I know that he does not think twice before abusing me, threatening me, hurting me physically and emotionally.

   I know that he will continue to think of me as his property and something he is entitled to do what he likes with for as long as I live.

   If I am forced to return to Fiji, I know my husband will be angry with me and want to hurt me.

1. On 7 June 2024 the Tribunal informed the applicant’s representative that in light of the recent submissions the Tribunal had sufficient information to proceed to a decision so that a further hearing would not be necessary.

   Country Information

2. DFAT’s most recent ‘Country Information Report’ on Fiji, published in May 2022, contains the following:

   … Fiji is generally stable and secure. The most recent elections in 2018 were orderly and free from violence. 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. Some alcohol-related street violence occurs. Domestic violence is a serious problem. Accusations of police violence are commonly reported and regularly investigated.

   …

   Women

   Fiji is a traditionally male-dominated society and traditional gender roles are well-entrenched. According to World Bank figures, the participation rate for women is the lowest in the Pacific region at 35 per cent of the total labour force (by contrast, Australia’s rate is about 46 per cent of the total labour force). These figures are from 2019 and the impacts of the pandemic on the largely feminised tourism sector may have made the situation worse.

   The 2021 US Department of State Human Rights Report notes that there are no laws that prevent women from participation in political processes, but that traditional gender roles restrict that participation in practice for iTaukei women. Similarly, iTaukei women are entitled to inherit land equally to men, but in practice this does not occur and many women work on land that is owned by their male relatives.

   Violence against women and girls

   A study by the Fiji Women’s Crisis Centre (FWCC) from 2013 (the most recent study by the FWCC) found 64 per cent of women who had ever been in a relationship had experienced domestic violence. In October 2020 the then Minister for Women, Children and Poverty Alleviation, Mereseini Vuniwaqa, said that 72 per cent of women in Fiji might experience violence in their lifetime. Vuniwaqa said that violence in Fiji affected women from all socio-economic backgrounds. She also noted that in 2020 (to October) police had recorded 1,545 cases of violence against women. Elsewhere, Vuniwaqa has acknowledged that Fiji’s rate of violence against women and girls is among the highest in the world. The media reported 10 deaths from domestic violence in 2020.

   Reported cases of sexual assault are also high. According to media reports, 531 cases of rape were recorded against 240 victims, of whom 165 were minors, in 2020. The Fiji Women’s Rights Movement analysed rape cases in the High Court in 2020 and found a male perpetrator in all 81 cases and an average age of victims of 14 years. Spousal rape is illegal under Fijian law. In April 2021, a man who sexually assaulted his wife when she ‘refused intimacy’ was sentenced to a 6-year and 10-month prison term by the High Court in Lautoka.

   Police protection is available but not consistently. Some police stations do not have the equipment or transport to deal effectively with cases of gender-based violence. Women who seek help from advocates (for example, the FWCC Centre runs a hotline) may receive more assistance.

   A magistrate can issue restraining orders. These orders operate similarly to apprehended violence orders in Australia, with conditions that aim to protect a person from assault, threats, intimidation, ‘abusive, provocative or offensive’ behaviour or the procurement of those offences by another person. These orders are enforced by police and provide some protection.

   An audit by the Fiji Auditor General in 2019 found that there is ‘inconsistency’ in the application of legislation that prohibits violence against women. It notes ‘pressure on women to reconcile with their husbands/partners’ by police or society, as well as a lack of knowledge among women about their rights. Fiji Police have a ‘no drop’ policy for domestic violence. This means that cases cannot be dropped by police nor be withdrawn by victims; they must be investigated. This is to prevent victims from being pressured by family to drop the cases. In practice, the Auditor General found (and in-country sources confirmed to DFAT) that the policy was not implemented in all cases and that police did sometimes drop domestic violence cases or were unhelpful or even hostile to victims.

   NGOs provide some services to women and girls who are subject to violence. For example, the FWCC offers a 24-hour telephone crisis counselling service that can coordinate emergency assistance throughout the country. Lawyers and counsellors might also be available to victims. Women’s domestic violence services reported an uptick in demand during the COVID-19 pandemic. Cyclones, which cause people to shelter together in their homes, have had a similar effect of increased violence.

   Women experiencing violence in the outer islands or rural areas may have more difficulty escaping violence. Shelters are unlikely to exist in remote areas and a family member may be relied upon for protection. Conversely, family ties and loyalties and traditional hierarchies can protect perpetrators.  Relocation is not necessarily helpful; Fiji is relatively small and sometimes people can be tracked down through kinship networks. DFAT assesses that women who experience domestic violence are, by definition, at a high risk of violence, and a moderate risk of discrimination in the form of lack of access to protection.

   …

   Police

   The Fiji Police Force (FPF) is a national police force that covers the whole country. The US Department of State Overseas Security Advisory Service 2020 Crime and Safety Report assesses Fiji police as ‘professional’ and notes recent improvements in training and accountability. It notes that police may not be based in vehicles and may not arrive in time to disrupt crimes in progress but assesses that ‘victims of crime can expect fair treatment with dignity’.

   Police are generally well-resourced by the Government and receive funding and training from overseas aid partners. The police are, in general, disciplined (but see comments on violence below). Policing is conducted on a community policing model and police are generally actively engaged with the communities they serve.

   Corruption in the FPF is reported, but DFAT understands that it is not widespread. There are some allegations of corruption and DFAT is aware of pockets of corruption that have later been exposed and investigated. Complaints about the FPF are made to the Human Rights and Anti-Discrimination Commission.

   Policing in outer islands and more remote places is more difficult because of the greater influence that the chief-based hierarchy has in the outer regions. Police are generally not deployed to their home communities to avoid conflict with traditional hierarchies.

   The Fiji Police Force overall has the capacity to protect individuals from societal harassment, discrimination, and violence, and police are usually effective in carrying out their role in day-to-day crime detection, investigation and prevention.

   …

   Relocation

   There are no legal limits to relocation, but Fiji is geographically small and land is held tightly in kin groups, which limits internal relocation in practice. Even Suva, the largest city in Fiji, has only a small suburbia and few relocation options. Movement to another island is possible but in practice most relocation is to urban centres from other islands. Due to the COVID-19 pandemic and Fiji’s reliance on the tourism and agriculture sectors, relocation may not be practical to locations where no jobs exist. Successful relocation would depend on an individual’s skills and prospects in the place to which they are relocating.

3. Available sources indicate that Fiji has one of the highest rates of violence against women and girls in the world. A 2011 survey published by the Fiji Women’s Crisis[1] found that only about half of the women living with violence (53%) had ever told anyone about it. When they did tell someone, they usually turned first to family members or friends. 40% of women who experienced violence had left home temporarily at least once due to the violence, but many had not disclosed the true reason for leaving. Only 24% had ever gone to an agency or formal authority for help, and the police and health services were usually the first agencies that women go to. Almost three in five women (58%) believed that people outside the family should not intervene if a man mistreats his wife. It noted these entrenched community attitudes were a serious disincentive to women disclosing violence and taking steps to deal with it. When women did take the very difficult step of asking for help or leaving home, the evidence showed that the majority did so because the violence was extremely serious, they could not endure any more, or because they were badly injured.  In the survey, the most common situations mentioned by women where violence occurred included jealousy by their husband, the wife’s disobedience, and husband’s desire to show he was the boss, in addition to drunkenness. It found that the high rates of both partner and non-partner abuse showed that the use of violence as a form of punishment and discipline is accepted within many families and communities. Women themselves minimised the impact of the violence on their health and well-being; many saying that they had not sought help because the violence was ‘normal’.

   [1] 'Somebody's Life, Everybody's Business! National Research on Women's Health and Life Experiences in Fiji (2010/2011): A survey exploring the prevalence, incidence and attitudes to intimate partner violence in Fiji', Fiji Women's Crisis Centre (FWCC), 11 December 2013.  

4. More recent sources published in 2020 and 2021 indicate that the rates of violence against women remain high in Fiji, with gender-based violence (GBV) being deeply rooted in traditional behavioural norms of a patriarchal society.[2] A 2020 report stated that violence against women in Fiji was now a major national crisis with two out of three females in Fiji subjected to physical or sexual violence in their lifetime.47 In October 2020, the Fiji Police recorded 1545 cases of assault-related offences against women and 99 cases of sexual offences for that year.[3]

   [2] ‘EU Annual Report on Human Rights and Democracy in the World 2021 Country Updates: Fiji’, The European External Action Service (EEAS), 19 April 2022; 'Assessment Of Women’s Access To Justice In Fiji During Covid-19 Pandemic From January To May 2020', Fiji Women's Rights Movement (FWRM), 28 September 2020

   [3] N. Neimila, “Gender-Based Violence ‘A Global Pandemic’”, The Fijian Government, 16 October 2020.

5. NGOs have also reported that, where domestic violence cases are prosecuted (more often in instances where actual bodily harm has occurred), perpetrators only receive a sentence of 0.82 years on average. The Sentencing and Penalties Act 2009 provides an opportunity for judges to enhance punishment for domestic violence cases based on aggravating factors, but case law analysis on sentencing decisions shows that this Act has not had a tangible effect on the final sentences imposed.[4]

   [4] ‘Report of the Auditor-General of the Republic of Fiji. Coordination of Actions on Elimination of Violence against Women. Performance Audit' (Parliamentary Paper No. 129 of 2019)’, Office of the Auditor-General Republic of Fiji, Parliament of Fiji, 30 August 2019.

6. In the 2020 Sisters for Change report, it noted that, of the number of domestic violence sentencing decisions reviewed in Fiji between 2000 and 2018, 46.4% of sentences were fully or partially suspended. Custodial (prison) sentences were not given in 40.5% of cases and the average length of sentence was 2.3 years between 2000 to 2009, 1.34 years between 2010 to 2014, and 1.68 years between 2015 to 2018. [5]

   [5] J. K. Singh, H. Singh, E. Thomas & N. Druce, ‘Comparative legal review of the impact of gender stereotyping on judicial decisions in violence against women cases across the Pacific Island Region’, Sisters for Change (UK), 2020.

7. In 2013 the FWCC noted there was much pressure on women to reconcile with their husbands/partners following incidents of domestic violence, rather than seek access to justice and such pressure, in part, came from the police, the Family Court and other Courts.[6]   In 2017, FWRM interviewed 49 women identified as having had a family law issue or having experienced violence and had approached the police or courts. 60% said the police told them to resolve the issue within the family or village or the police did not take them seriously.[7]

   [6] FWCC Report 2013, p.17.

   [7] FWRM Report 2017, p.77.

8. A 2019 paper by the UN Development Programme noted that traditional and informal dispute resolution is firmly embedded in the social and legal culture of Fiji. Maintaining law and order, harmonious and peaceful living in the community as well as ensuring that traditional leadership is upheld and respected are key objectives of the iTaukei Affairs Act. Section 83 of the iTaukei Affairs Act stipulates that ‘For the purposes of peaceful co-existence, traditional reconciliation shall be encouraged at all times, however, this shall not distract the due process of law where necessary’. Traditional justice mechanisms in Fiji takes different forms. In minor disputes, an apology – o soro – is sought in order to settle the issue informally within or between families. Other dispute resolution processes follow more structured procedures with assembly of the disputing parties and a neutral person or persons who decide the matter on behalf of the community. An example is the Bulubulu ritual of reconciliation. Bulubulu means ‘to bury the past and make peace for the future’. The ceremonial procedure usually involves the presentation of traditional items of wealth or status such as tabua (whale’s tooth) and yaqona (kava). An admission of wrongdoing is followed by a request for forgiveness. The offended party is obliged by custom to reciprocate in an equally conciliatory manner. Traditional leaders, elders (qase), parents, and the church play an important role in the prevention of crime and conflict in the village and village Councils and their subcommittees have an important role in the maintenance of the social order. Urban communities have shifted to more modern forms of dispute resolution, with the traditional dispute resolution mechanisms still applied in rural communities but even these communities have seen a decrease in the role and importance of traditional justice. Nonetheless, the paper noted that Bulubulu, although decreasingly, is still used as a substitute for criminal prosecution and punishment of cases of GBV.[8]

   [8] Justice Needs and Satisfaction in Fiji’, United Nations Development Programme (UNDP), October 2019.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The applicant submitted her Fijian passport. On the basis of this document and the applicant’s oral evidence the Tribunal is satisfied she is a citizen of Fiji. The Tribunal assesses her claims against Fiji as her country of nationality and receiving country.

10. The applicant claims to fear serious physical and psychological harm from her husband in Fiji.

    Credibility

11. The applicant presented her protection claims to the Department in a Statutory Declaration and a letter written by the applicant’s sister on behalf of herself, her mother and her stepfather. The applicant was not interviewed by the delegate. 

12. The applicant’s Statutory Declaration was very detailed.  Regarding the years of her life in Fiji prior to her first departure to Australia it is reasonably coherent despite some confusion caused by sentences left hanging and being placed somewhat out of context.

13. The parts of the applicant’s Statutory Declaration regarding her experiences during her two return trips to Fiji were less coherent and it was difficult to understand what happened and when, as well as the relevance of some of the information. This confusion was compounded by inconsistent information and some unclear context in the letter written by the applicant’s sister. 

14. The applicant then provided a further written statement to the Tribunal as well as written statements from her two daughters.  Despite the apparent confusion in the applicant’s original Statutory Declaration the applicant’s further written statement did not address or attempt to clarify her original information but provided information relevant mostly to her experiences in Australia.  The statements from her two daughters also did not clarify the information but added a further layer of some inconsistency.

15. At hearing the Tribunal tried to clarify with the applicant the information from her Statutory Declaration that remained unclear regarding her two return visits to Fiji. The applicant was very cooperative and made efforts to provide clarifying information as to what happened and the sequence of events. However it was apparent that in her efforts she became further confused so that the information she provided sometimes muddled things further. The Tribunal did not get the impression that the applicant was fabricating evidence or that she was not speaking from genuine personal experience. The Tribunal did however feel that the pressure of her first hearing and its relatively short time frame, together with the need to put issues of concern to the applicant, was not a particularly conducive environment for the applicant to readily unravel several layers of confusion about her numerous past experiences. The Tribunal was of the view that the further information required from the applicant and her witnesses should be obtained by way of further submissions and/or a second hearing.

16. The applicant’s subsequent written statement to the Tribunal is highly detailed. More significantly it presents a comprehensible account of the applicant’s lengthy abuse history. It further contains reasonable explanations for any current or past confusion by the applicant and by her family members who had also provided written evidence. The statement also addresses concerns raised by the Tribunal and provides both reasonable explanations and relevant additional contextual information, in a highly personalised account.

17. The evidence the applicant has provided is supportive or her claims. Her witness statements, despite some inconsistencies, are detailed and compelling; the sustained and mostly abusive Whatsapp messages to the applicant in Australia from her husband appear genuine and, given their volume, would be very difficult to fabricate; and the 2009 Court order against the applicant’s husband for assault occasioning bodily harm carries significant weight.

18. In assessing the applicant’s evidence as a whole the Tribunal is satisfied that her claims of past serious physical and psychological abuse by her husband over many years, are credible.

    Fear of Harm in Fiji

19. For a person’s fear of persecution to be well-founded, there must be a real chance that, if the person returned to the receiving country, the person would be persecuted. The concept of ‘real chance’, as relevant to the assessment of well-founded fear under Article 1A(2) of the Refugees Convention, was explained by the High Court in Chan v MIEA (1989) 169 CLR 379 as a substantial chance, as distinct from a remote or far-fetched possibility; however, it may be well below a 50 per cent chance.

20. It is clear from the Explanatory Memorandum to the Bill introducing s 5J, that Parliament intended that this same threshold be used to assess claims under s 5J of the Act.[9]

    [9] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), p.171.

21. The applicant’s husband’s behaviour since the applicant first came to Australia shows he continues to abuse and threaten the applicant, and that he maintains a high level of interest in her and how she behaves.  He has continued to demonstrate a wish to control her behaviour in a coercive, threatening and violent way.

1. The Tribunal accepts that if the applicant returns to Fiji she will be readily exposed to contact from her husband.  In a small country of close-knit communities the applicant’s husband will inevitably become aware of her return.  She also has no home in Fiji apart from the home where her husband lives.  The applicant will therefore be exposed to further coercion, control, threats of violence, and actual violence by her husband.

2. In assessing the chance of harm to the applicant on return to Fiji, the Tribunal also takes into consideration available information regarding the culture and attitudes towards women and the prevalence of family violence in Fiji.  As DFAT stated in its 2022 assessment “Fiji is a traditionally male-dominated society and traditional gender roles are well-entrenched.”[10] The United Nations Development Program has referred to violence against women in Fiji as at ‘near epidemic’ levels.[11]

   [10] Department of Foreign Affairs and Trade, ‘DFAT Country Information Report Fiji’, 20 May 2022.

   [11] United Nations Development Program, ‘Fiji Security Sector Governance’, January 2019.

3. Based on all the above the Tribunal is satisfied there is a real chance that the applicant will again be subjected to serious physical harm, psychological abuse, threats, intimidation, and controlling behaviour by her husband if she returns to Fiji.

   Reasons for the harm feared

4. To be persecution within the Act the essential and significant reason(s) for the harm must be attributable to the applicant’s race, religion, nationality, membership of a particular social group or political opinion.[12]

   [12] Section 5J.

5. Australian courts have consistently found that ‘particular social group’ should be interpreted broadly[13] and the courts on the whole have accepted that women, or a subgroup of women, can comprise a social group.[14]  

   [13] Morato (1992) 39 FCR 401 (Lockhart J); Minister for Immigration and Ethnic Affairs v Respondent A (1995) 57 FCR 309; Chen Shi Hai v MIMA (2000) 201 CLR 293.

   [14] MIMA v Khawar (2002) 210 CLR 1.

6. The Tribunal is satisfied that ‘women in Fiji’ comprise a particular social group as defined in the Act[15] in that they share a characteristic, their gender, which is not a fear of persecution.

   [15] Section 5L.

7. In Applicant A v MIEA (1997) 190 CLR 225, Gummow J said that the phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution and the objectives sought to be attained by it. As further stated by the High Court in Chen Shi Hai v MIMA decision-makers must evaluate the postulated connection between the asserted fear of persecution and the ground, keeping in mind the policy of the Refugees Convention, and the fact that human conduct is rarely, if ever, unidimensional.[16]   

   [16] Chen Shi Hai v MIMA (2000) 201 CLR 293, (Gleeson CJ, Gaudron, Gummow and Hayne JJ),

8. In relation to what is now understood as common motivation for family and domestic violence, the ‘Our Watch’ submission to the 2021 Commonwealth government inquiry stated:

   ‘[they had] surveyed all of the nationally and internationally available literature on the drivers of violence against women. … What we found is that the key drivers of violence are gendered. They are about attitudes to gender. They are about structural gender relations and structural relations of power between men and women. These play out in many different ways.’[17]

   [17] Dr E Partridge, Our Watch, Submission to the Commonwealth government ‘Inquiry into family, domestic and sexual violence’, March 2021.

9. The UN Declaration on the Elimination of Violence against Women also identifies intimate partner violence as the product of historically unequal power relations between men and women and a primary manifestation of discrimination against women.[18]

   [18] Declaration on the Elimination of Violence against Women, GA Res 48/104, UN Doc

10. The applicant’s husband has demonstrated gendered behaviour in his ideas and actions to dominate and control the applicant.  His use of violence to force the applicant to do as he wants indicates he considers the applicant inferior and subject to his control. 

11. On the basis of the applicant’s personal circumstances, her husband’s behaviour, available country information about the entrenched dominant male culture in Fiji, and the available expert literature regarding the nature of intimate partner violence, the Tribunal is satisfied that an essential and significant reason for the serious harm the applicant is at risk of from her husband is her membership of the particular social group of women in Fiji. 

12. The Tribunal is also satisfied that the harm the applicant is at risk of involves systematic and discriminatory conduct in that it would be done to her selectively and intentionally.

    Available Effective Protection

13. A person is taken not to have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s 5J(2) of the Act. A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s 5LA(2).

14. DFAT states in its 2022 report that while protection for women is available it is not consistent.  Some police stations lack equipment or transport to deal effectively with cases of gender-based violence.[19] The available country information also indicates that the police may at times be reluctant to intervene in matters of family violence and that reconciliation may be promoted over protection. 

    [19] DFAT Country Information Report Fiji, 20 May 2022

15. There is also information that the police do sometimes act and the courts do prosecute. The applicant has given evidence of the police taking some action against her husband on occasion.  However their intervention and the court’s penalty were markedly light and despite them the applicant’s husband continued to be physically abusive and controlling of the applicant.   

16. The available country information supports a finding that state protection is potentially available however not reliably or consistently so. The information also highlights the concern that state resources are not effective in protecting women from incidents of family violence.  If the resources are utilised it is to make arrests and prosecute after acts of violence.   

17. In view of the applicant’s personal experiences and the available country information regarding both the uncertainty of state responses and the high level of family violence occurring in Fiji, the Tribunal is not satisfied that there is effective protection available to the applicant in Fiji.

    Area of risk

18. Under s 5J(1)(c) of the Act, the real chance of persecution must relate to all areas of the relevant receiving country.

19. The Tribunal is satisfied that there is a real chance of harm to the applicant in her home area, [Town 3], in Fiji.  Given the small geographical size of Fiji, together with the close-knit community culture there, the Tribunal considers that if the applicant tried to live elsewhere in Fiji her husband could and would readily find her, within the reasonably foreseeable future. 

20. The 2022 DFAT Report on Fiji states that for women fearing family violence “relocation is not necessarily helpful; Fiji is relatively small and sometimes people can be tracked down through kinship networks.” The report also adds that “Fiji is geographically small and land is held tightly in kin groups, which limits internal relocation in practice.”

21. Considering these observations about Fiji together with the applicant’s personal situation the Tribunal is satisfied that the real chance of serious harm to the applicant relates to all areas of the country, as the applicant’s husband can readily locate her and harm her in other parts of the country.

22. On the basis of the above reasoning the Tribunal is satisfied the applicant has a well-founded fear of persecution in Fiji as defined by s 5J of the Act.

    Section 36(3)

23. Subsection 36(3) of the Act has the effect that where a non-citizen in Australia has a right to enter and reside in a third country, Australia will not have protection obligations in respect of that person if he or she has not availed himself or herself of that right unless the conditions prescribed in either s 36(4), (5) or (5A) are satisfied, in which case the s 36(3) exclusion will not apply.  The conditions prescribed in s 36(4), (5) or (5A) will be met where a person has a well-founded fear of being persecuted or faces a real risk of significant harm in that country, or has a well-founded fear of refoulement from that country to a place where they face such treatment.

24. There is no indication before the Tribunal that the applicant has a right to enter and reside in any third country. The Tribunal therefore finds that the applicant has no such rights and is not excluded from Australia’s protection obligations by s 36(3) of the Act.

    Conclusion

25. 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

26. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

    Melissa McAdam
    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.

    …

    
    

A/RES/48/104 (23 February 1994) art 4(c) (‘DEVAW’).