2403342 (Refugee)

The applicant, a citizen of Fiji, sought a protection visa, claiming she feared serious physical and psychological harm from her husband if returned to Fiji. The dispute centred on whether the applicant faced a real risk of significant harm in Fiji, thereby engaging Australia's protection obligations. The decision was made by Melissa McAdam.

The legal issues before the court were whether the applicant met the criteria for a protection visa, specifically under section 36(2)(aa) of the Act, which concerns complementary protection. This required the court to determine if there were substantial grounds for believing that, as a necessary and foreseeable consequence of removal to Fiji, the applicant would suffer significant harm. The court also considered the meaning of "significant harm" and the circumstances under which a person would not be taken to face a real risk of such harm, as outlined in sections 36(2A) and (2B) of the Act.

The court considered the applicant's detailed statutory declaration and a letter from her sister, which corroborated her claims of extensive physical and sexual abuse, jealousy, and threats from her husband. The court noted that while Fiji has traditional dispute resolution mechanisms, such as "Bulubulu," which can involve reconciliation and are still used in some cases of gender-based violence, the evidence suggested these mechanisms were insufficient to provide adequate protection to the applicant. The applicant's attempts to report her husband to the police in Fiji had resulted in reconciliation orders rather than charges, and her husband, due to his occupation, appeared to have influence within the legal system. The court also considered country information regarding the role of traditional leaders and village councils in maintaining social order, but found that the applicant's specific circumstances, including her husband's persistent and escalating violence and his ability to locate her despite her attempts to flee, indicated a real risk of significant harm that state protection was unlikely to prevent.

The court found that the applicant had established a real risk of suffering significant harm if returned to Fiji. Consequently, the decision under review was remitted for reconsideration.