2403472 (Refugee)

2403472 (Refugee) [2024] AATA 2746 (9 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Miss Saemeh Ghasemi
CASE NUMBER:  2403472
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Adrienne Anderson
DATE:9 May 2024
PLACE OF DECISION:  Melbourne
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 09 May 2024 at 11:15am
CATCHWORDS
REFUGEE – Protection Visa – Fiji – religion – Muslim faith – race – Indo-Fijian ethnicity – lesbian – history of family violence – gender – the combined factors of her age, gender, and her sexual orientation heightens her risk – gender-based violence – membership of the particular social groups ‘women’ and ‘lesbians’ – applicant has a well-founded fear of persecution – decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 February 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Fiji, applied for the visa on 25 August 2023. The delegate refused to grant the visa on the basis that they could not be satisfied of the credibility of the applicant’s claims.
The applicant appeared before the Tribunal on 1 May 2024 to give evidence and present arguments. The Tribunal also received oral evidence from [name] (the applicant’s uncle) and [name] (the applicant’s aunt), who, because of the applicant’s young age and sensitive nature of the proceedings, were also present throughout the hearing as support for the applicant.[1] The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi (Fiji) and English languages.
[1] The Tribunal had regard to, and conducted the hearing in accordance with, its relevant guidelines: Administrative Appeals Tribunal, Guidelines on Vulnerable Persons (November 2018).
The applicant was represented in relation to the review. The representative attended the Tribunal hearing.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, they are either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), they may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CLAIMS AND EVIDENCE
The applicant’s background
The applicant is a [age]-year-old from [a town], Fiji. She is of Muslim faith and Indo-Fijian ethnicity. Her parents, a farmer and homemaker, reside in [a town], Fiji. The applicant has [brothers], also residing in Fiji.
The applicant had completed [a grade] of secondary school in Fiji prior to travelling to Australia. She has not been attending school while in Australia.
The applicant travelled to Australia on [date] December 2022. She returned to Fiji on [date] March 2023, before returning to Australia on[date] March 2023. The reasons for and circumstances of this travel are described below. The applicant applied for a protection visa on 25 August 2023.
The Tribunal accepts the above matters to be true.
The applicant’s claims for protection
Before the Department
In her protection visa application form, the applicant stated that she was scared to go to Fiii because she will be forced to get married at a young age due to her family’s poverty and family problems. She stated that both of her parents have health issues and as a result her father is currently unable to work. She was supported by her uncle to attend school.
In response to a question asking what she feared on return to Fiji, the applicant stated that due to the change in government she feared she will be forced to marry at the age of [age] or be raped or killed in her house. She also feared being sold after being kidnapped.
On 19 December 2023, a delegate of the department wrote to the applicant under s 56 of the Act, inviting the applicant to provide further information in respect of her claims. The delegate stated that the claims lacked detail and asked for more information, among other things, about whether she had received any threats in relation to her fear of forced marriage, and if so, for the dates and details of these threats, and whether family members would be involved in forcing her to marry.
On 11 January 2024, the applicant’s uncle, as the applicant’s authorised contact, responded to the request for information. The response provided more information about the applicant’s family’s financial situation and stated that the deterioration of this situation would lead to the applicant being ‘married off’. The response stated that the applicant’s extended family members hold the cultural notion that girls are better off being married soon after poverty and would be unwilling to protect her. It was also stated that when the applicant travelled to school alone that she would be at risk of being abused or kidnapped. Multiple documents were provided in support, including country information on child marriage, child abuse and sexual violence in Fiji, and country information on gender norms in India which, it was argued, have been transmitted to Fiji.
The applicant was not invited to attend an interview with the Department and no further material was provided by the applicant in support of her claims. The delegate refused the applicant’s protection visa application on 15 February 2024 on the basis that the applicant’s response to the s 56 request did not respond to the questions and that this failure to comment and provide substantiating detail raised doubt as to the genuineness of her claims. The delegate was not satisfied that there is a real chance that the applicant will face serious harm, or that there is a real risk that she would suffer significant harm.
The applicant appealed the Department’s decision to the Tribunal on 27 February 2024.
Before the Tribunal
On 24 April 2024, with the assistance of her representative, the applicant provided to the Tribunal a signed statutory declaration elaborating on her claims. Statutory declarations from the applicant’s aunt and uncle as well as legal submissions were also provided.
The applicant’s claims, contained in her statement, can be summarised as follows:
a.The applicant came to Australia in December 2022 to visit a new place and spend time with her aunt and uncle. [In] March 2023, her aunt took her back to Fiji to live with her family again;
b.The applicant’s mother immediately told her she would have to get married now she was back in Fiji. The applicant called her aunt, who came back to get her and subsequently took her back to Australia with her. The applicant was informed by her aunt that the applicant’s mother had plans for the applicant to marry a relative from an area far from the applicant’s hometown;
c.The applicant had been neglected in her childhood. She had been prevented from attending school for two weeks of every month because she was expected to carry out domestic duties at home. Her brothers were not treated this way;
d.Prior to the applicant’s first trip to Australia, her parents had told her they expected her to marry soon. When she refused, saying she wanted to study, they beat her and locked in her room for two days;
e.The applicant now knows that she is attracted to girls and she now identifies as lesbian. She had a crush on a girl called [Ms A] in Fiji;
f.When she told her mother of these feelings at age [age], her mother beat her and told her not to tell anyone;
g.The applicant told her aunt and uncle about her sexuality in March 2023 after the applicant’s mother had told them of the plans for the applicant’s marriage;
h.The applicant was too scared to declare her sexual orientation in her previous application because it is not accepted in her religion, she is a shy person, and was afraid of being judged;
i.The applicant fears being harmed by her family throughout Fiji because she has nowhere to stay and they will find her anywhere. She fears the pressure to marry will not go away because of climate and government change in Fiji which affect the soil and for which there is no support in Fiji. Her cousin [was] forced to marry at 18;
j.The applicant also fears being raped by strange men because her home is surrounded by sugar farms where men work. They drink alcohol and the applicant fears they will break into her home and rape or harm her.
The applicant’s aunt and uncle’s statements provided corroborative testimony in relation to the applicant’s coming out to them and in the case of the applicant’s aunt, of the events and conversations on the March 2023 trip to Fiji.
At hearing, the applicant gave evidence consistent with the claims in her statutory declaration. She elaborated on the treatment she had experienced at the hands of her family, stating that her family and the community around her had traditional concepts about women. Girls are not encouraged to go out a lot, and if they do go out, they face heavy scrutiny. Everyone looks at girls with a critical eye, wondering what they are doing and who they are going out with. The applicant’s family never took her anywhere or allowed her to go out, she was housebound and often when they had visitors she was not allowed to engage with them or otherwise socialise. She was responsible for cooking for and serving her family and that is what was expected of her. She was too afraid to ever tell them no, but if she was unable to do something they wanted or went out for fresh air she was scolded and beaten. She stated that she had beaten by her parents many times, including when she told them she did not want to get married and by her mother when she told her she was lesbian. She stated that, with the exception of her aunt and uncle in Australia, all of her relatives living in Fiji were not supportive of her and had the same beliefs as her parents. The applicant does not often contact her parents directly. She has only recently spoken to them to enquire after their health, but she otherwise does not speak to them and they do not know anything about her situation in Australia.
The Tribunal also received oral testimony from the applicant’s aunt and uncle and was assisted by the written and oral submissions of the applicant’s representative. The applicant’s aunt [is] married to the brother of the applicant’s father. She gave evidence that when the applicant first got to Australia she was terrified of her uncle and could not trust anyone. Eventually they have been able to provide her with love and support that allowed for the applicant to open up to them. [The aunt] gave evidence that the applicant’s parents do not show a great deal of interest in the applicant and that they believe she is studying in Australia and will return when she has finished her studies.
The applicant’s uncle [gave] evidence of the traditional beliefs in his family and how the women are treated. Every day they have to cook and clean and cannot buy special things for themselves. When women get married, they must depend on their husbands. Whatever they are given and whatever is taken from them is all up to the husband. His sister is a victim of domestic violence but is expected to put up with it.
FINDINGS AND REASONS
Country of nationality
The applicant travelled to Australia on an apparently genuine Fijian passport, a copy of which was provided to the Department and Tribunal. She has consistently stated that she is a citizen of Fiji and the Tribunal finds that she is a Fijian citizen. The Tribunal has assessed her claims against Fiji as the country of nationality and the receiving country.
Credibility and findings of fact
As outlined above, the applicant’s claims relating to her history of family violence and her sexuality, as well as new evidence in relation to her claims of forced marriage, were raised for the first time in submissions to the Tribunal prior to the hearing. Section 423A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence. If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence not presented before the primary decision was made.
At hearing, the Tribunal asked whether there was a reason the applicant had not provided details about her parents’ plans for her to marry in her protection visa application form or to the delegate in response to the s 56 request. The Tribunal discussed with the applicant that she applied for the visa and responded to the request after she had returned to Fiji and been told of the specific plans in motion. The applicant responded that she was terrified. She stated that she just did not want to tell anyone and she wanted to keep it all to herself. When the applicant’s aunt and uncle were asked about this, the applicant’s aunt explained that she decided not to put in what she knew about the applicant’s sexuality and the details of the proposed marriage because the applicant pleaded with her not to. She stated that because the trust between them was so new and so important to both of them the applicant’s aunt stated that she could not break her trust by revealing those details.
The Tribunal accepts that the applicant is a young woman who is still only [age] years old and that at the time she lodged her protection application, as a [age] year old with a still developing sense of self and mental abilities, she was not in a position to disclose information about her sexual identity or the nature of her parents’ abuse and their plans for her marriage because she was ashamed and scared.
The Tribunal accepts her explanation for not having included all aspects of her claims, noting that she is a minor, and that while she was assisted by her aunt and uncle, they did not have legal advice or representation at that time. The applicant set out her claims at the earliest opportunity once she had engaged representation. The Tribunal also notes that she was not interviewed by a delegate in respect of her claims and therefore did not have an opportunity to provide further relevant information in person before her application was refused.
The Tribunal found the applicant’s evidence at hearing to be convincing and compelling. The applicant gave detailed evidence about the harm she had experienced at the hands of her family and her emotional distress about this treatment was evident. In relation to her sexuality, the applicant was able to speak convincingly about what she liked about [Ms A], about her experience telling her mother, the hope she had that her mother would support her, and the fear she still feels when she thinks about it. The applicant also spoke compellingly of her aversion to marriage because she does not like men at all and because she has future plans to study and learn to drive. The ability of the Tribunal to take evidence on any past experiences or future wishes for romantic relationships was limited by the applicant’s young age but the Tribunal considers the applicant gave evidence appropriate to her age and life circumstances and is satisfied of the credibility of her claims in this regard.
The applicant’s aunt and uncle also provided spontaneous and convincing detail of the conversations they have had with the applicant about her past experiences with her family and her sexuality.
Based on the applicant’s evidence, the Tribunal accepts that the applicant is a young woman from a traditional Muslim family who have controlled her, prevented her from attending school and beaten her in the past. The Tribunal accepts that she is lesbian and that her mother does not accept this. The Tribunal accepts her mother physically abused the applicant when she revealed her sexuality and that the applicant fears that she and other members of her family would react with violence if she was open about her sexuality in Fiji.
The Tribunal also accepts that the applicant’s family have plans for her to marry a distant relative upon return to Fiji and that they used violence in the past when the applicant refused the suggestion she should marry at a young age. The Tribunal accepts that the applicant fears they will again use violence against her to attempt to force her to marry a man.
The issue in this case is whether the applicant has a well-founded fear of persecution on return to Fiji or whether there is a real risk of significant harm if the applicant is removed from Australia to Fiji. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Country information
Treatment of LGBTIQ+ people

While Fiji is one of the few countries to have constitutional protections against LGBTIQ+ discrimination,[2] same-sex marriage is illegal and legal gender recognition is not available.[3]
[2] Department of Foreign Affairs and Trade (DFAT), Country Information Report Fiji (May 2022) [3.58].
[3] US Department of State, Country Reports on Human Rights Practices for 2022 – Fiji (20 March 2023).
Information in the DFAT report indicates that due to homophobic attitudes amongst Fijian society, many LGBTIQ+ Fijians hide their identity.[4] It is not common for LGBTIQ+ people to come out to their families, and when they do, they are often not accepted.[5] However, LGBTIQ+ people may find more acceptance in Suva, particularly in wealthier circles.[6]
[4] DFAT, Country Information Report Fiji (May 2022) [3.65].
[5] Ibid [3.60].
[6] Ibid.
According to DFAT, because LGBTIQ+ issues are not generally discussed in Fijian society and there is a lack of data, it is difficult to ascertain the prevalence and nature of discrimination against this community.[7] Employment relations law prohibits discrimination based on sexual orientation. Nevertheless, LGBTIQ+ people experience discrimination in employment and in other areas, including accessing healthcare and housing.[8]
[7] Ibid [3.62].
[8] Freedom House, Freedom in the World 2023 – Fiji (31 August 2023); US Department of State, Country Reports on Human Rights Practices for 2022 – Fiji (20 March 2023) 21.
Research conducted by local LGBTIQ+ rights NGO, Diverse Voices for Equality (DIVA) found that most LGBTIQ+ people live in poverty due to unemployment. According to the research, 62 per cent of LGBTIQ+ people are unemployed or involved in precarious casual work.[9] The Fiji Human Rights and Anti-Discrimination Commission (HRADC) has reported complaints of discrimination against LGBTIQ+ persons in such areas as employment, housing or access to healthcare.[10] In-country sources report that LGBTIQ+ individuals can experience societal discrimination when accessing goods and services.[11]
[9] US Department of State, Country Reports on Human Rights Practices for 2022 – Fiji (20 March 2023) 21.
[10] Ibid; Freedom House, Freedom in the World 2023 – Fiji (31 August 2023).
[11] DFAT, Country Information Report Fiji (May 2022) [3.62].
DFAT also reports that LGBTIQ+ people face a moderate risk of violence.[12] Official statistics on violent crimes against LGBTIQ+ people are not available[13] but during 2022, NGOs reported that violence against LGBTIQ+ people was common.[14]
[12] Ibid [3.65].
[13] ‘Why the fight for marriage equality in Fiji divides LGBTQ+ activists’, The Guardian (13 April 2023) < US Department of State, Country Reports on Human Rights Practices for 2022 – Fiji (20 March 2023) 20; DFAT, Country Information Report Fiji (May 2022) [3.64].
Additionally, violence against LGBTIQ+ people in Fiji may be underreported and police protection is not always available.[15] LGBTIQ+ people are often discouraged from reporting crimes to the authorities for fear of further violence or harassment.[16] LGBTIQ+ communities have been subject to discrimination and punitive treatment by Fijian police.[17] Research conducted by DIVA in 2018 found that 76 per cent of surveyed LGBTIQ+ people did not feel safe going to the police. Numerous respondents stated they had been beaten by the police due to their sexual orientation or gender identity.[18] There are also taboos around reporting violence against LGBTIQ+ people.[19]
Gender norms in the Indo-Fijian context
[15] DFAT, Country Information Report Fiji (May 2022) [3.61].
[16] US Department of State, Country Reports on Human Rights Practices for 2022 – Fiji (20 March 2023) 20.
[17] J Rowe, C Sullivan, and C Vaughan, United Nations Population Fund (UNFPA) and the University of Melbourne, Sexual and reproductive health and gender-based violence in Fiji: A review of policy and legislation (26 October 2022) 61.
[18] ‘DIVA for Equality concerned about the treatment of LGBTQI people by some police officers’ Fiji Village (13 September 2020) < DFAT, Country Information Report Fiji (May 2022) [3.65].
One of the few studies on Indo-Fijian women’s domestic lives studied women from different class backgrounds, both Hindu and Muslim.[20] It notes that Indo-Fijian gender relations and the status of women cannot be understood without reference to the ideology of purdah and other characteristics of North Indian families:
• male dominance and female subordination
• males as the economic providers with females as the economic dependents
• spatial and social confinement of women
• male inheritance of family property
• the treatment of females as reproducers of the male lineage and repositories of family honour (izzat).
[20] Shireen Lateef, ‘Rule by the Danda; Domestic Violence among Indo-Fijian’ (1990) 13(3) Pacific Studies.
According to this ideology, women should be quiet, demure, unobtrusive, and obedient. They should dress modestly and generally attempt to be physically and socially inconspicuous. Interaction with unrelated males should be avoided and spatial movements outside the home should be minimised. Women must not talk too much or too loudly or be argumentative, especially in the presence of males or older females. Women are perceived as both sexually vulnerable and sexually impulsive and thus in need of protection and control since they are the repositories of family honour.[21]
[21] Ibid.
The study also observes that the North Indian/Indo-Fijian ideology of family stresses that ultimate authority should be vested in the father. This idea of male supremacy is reflected in the greater importance of male children over female children. Male children are more desirable and viewed as assets since they will become the future economic providers and will ensure the continuance of the patriline. Female children are less desirable and viewed as economic and social liabilities until husbands are found for them since they are economically dependent and pose a potential threat to the reputation of the family. Only through marriage can a woman achieve and perform her true function of wife and mother.
In another paper published in 1999, the same author noted that since marriage is a civil contract in Islam, divorce is permissible. However, Muslim women need the consent of husbands to obtain a divorce, whereas men need no such consent from their wives. Divorce is discouraged amongst Muslims in Fiji.[22]
[22] Shireen Lateef, ‘Wife Abuse among Indo-Fijians’, in D.A. Counts, J.K. Brown & J. Campbell (eds), To Have and to Hit: Cultural Perspectives on Wife Beating (University of Illinois Press, 1999) 217-220.
A paper published in 2020 by Sisters of Change noted that these values remain within the Indo-Fijian community. That is, girls are considered an economic liability and a financial burden on their families. Furthermore, men tend to make the most important decisions for the family, such as arranging the marriages of their daughters, and women are expected to be deferential and subordinate to their husbands. It noted that violating the rules placed on them comes with grave consequences, with women being ostracised by society and family, disowned by their parents, or facing violence or even death at the hands of family members.[23]
[23] 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) 14.
Arranged marriages are an enduring part of traditional Indo-Fijian culture.[24] While the legal age of marriage in Fiji is 18 years old, the most recent United States Department of State report notes that local NGOs report that girls often married before 18, especially in rural areas, preventing them from completing their secondary school education.[25]
Gender-based violence against women and girls
[24] Oranga Tamariki Ministry of Children (New Zealand) Practice Centre, ‘Fijian and Fijian-Indian’ (undated) 7- 8.
[25] US Department of State, 2023 Country Reports on Human Rights Practices: Fiji (22 April 2024).
Reliable sources indicate that Fiji has one of the highest rates of violence against women and girls in the world. A survey from 2011 published by the Fiji Women’s Crisis Centre found that almost two-thirds of the country's women experienced domestic or sexual violence during their lifetime.[26] It also found high rates of non-partner violence against women and girls: overall, 31% were subjected to physical and/or sexual assault since the age of 15 by someone other than their husbands and partners. The majority of perpetrators were people known to their victims.[27]
[26] Fiji Women's Crisis Centre (FWCC), 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 (11 December 2013).
[27] Ibid.
More recent sources published in 2020 and 2021 indicate that the rates of violence against women remain high in Fiji, with gender-based violence being deeply rooted in traditional behavioural norms of a patriarchal society.[28] A 2020 report stated that violence against women in Fiji was now a major national crisis with two out of three women or girls in Fiji subjected to physical or sexual violence in their lifetime.[29] In October 2020, the Fiji Police recorded 1545 cases of assault-related offences against women and 99 cases of sexual offences for that year.[30]
[28] European External Action Service (EEAS), EU Annual Report on Human Rights and Democracy in the World 2021 Country Updates: Fiji (19 April 2022) 231; Fiji Women's Rights Movement (FWRM), Assessment of Women’s Access to Justice in Fiji During Covid-19 Pandemic From January To May 2020 (28 September 2020) 6.
[29] K Vacala, 'Violence against women a national crisis' FBC News (14 January 2020) < 20200220105534>.
[30] N Neimila, “Gender-Based Violence ‘A Global Pandemic’”, The Fijian Government, 16 October 2020, <
Other than the patriarchal culture, sources also point to the impact of climate change and disasters. In 2016 Fiji was devastated by the strongest cyclone ever to hit the Southern Hemisphere. It destroyed or damaged more than 30,000 homes, displaced more than 150,000 people and affected 350,000 people. In the disaster zone and in evacuation centres, women faced more violence and harassment. In 2017, the Coordinator of the FWCC, Shamina Ali, stated that, as Fiji faced a future full of climate change catastrophes, including rising sea levels and increasingly intense storms, women were at greater risk of domestic violence and harassment.[31] Research suggests that early and forced marriage increase following disasters, and that the risk is particularly high for adolescent girls.[32]
[31] S Narang, ‘Climate Change Drives Domestic Violence in Fiji’ HuffPost (1 June 2017) < Gabrielle Simm, ‘Gender, disasters and international law’ in Susan Harris Rimmer and Kate Ogg (eds) Research Handbook on Feminist Engagement with International Law (Edward Elgar, 2019) 118, citing the examples of the 2004 Indian Ocean tsunami and the 2015 Nepal earthquake at 124.
Despite legal provisions addressing domestic violence, patriarchal attitudes remain and implementation is inconsistent. A number of institutional barriers to accessing protection for domestic violence victims exist, including:
·Low sentences;[33]
·Gender-stereotyping in judicial decisions;[34]
·Court delays;[35]
·Police inaction;[36]
·Cultural and economic factors in accessing state protection.[37]
[33] Office of the Auditor-General Republic of Fiji, Parliament of Fiji, Report of the Auditor-General of the Republic of Fiji: Coordination of Actions on Elimination of Violence against Women – Performance Audit (30 August 2019) 110.
[34] FWCC, 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 (11 December 2013) 17; 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) 44.
[35] FWCC, 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 (11 December 2013) 18.
[36] Office of the Auditor-General Republic of Fiji, Parliament of Fiji, Report of the Auditor-General of the Republic of Fiji: Coordination of Actions on Elimination of Violence against Women – Performance Audit (30 August 2019); DFAT, Country Information Report Fiji (May 2022) [3.53]-[3.57].
[37] UN Women Pacific, ‘Ending Violence against Women and Girls: Evidence, Data and Knowledge in Pacific Island Countries, Literature Review and Annotated Bibliography’(July 2011, 2nd Edition) 31.
In relation to police inaction, the DFAT report states that police protection is not available consistently. Some police stations do not have the equipment or transport to deal effectively with cases of gender-based violence.[38] The DFAT report also notes that 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 and that the Fiji Police’s ‘no drop’ policy for domestic violence (which means that cases cannot be dropped by police nor be withdrawn by victims; they must be investigated) was not implemented in all cases in practice and that police did sometimes drop domestic violence cases or were unhelpful or even hostile to victims.[39]
Refugee criteria
[38] DFAT, Country Information Report Fiji (May 2022) [3.53].
[39] Ibid [3.55].
As set out above, the Tribunal accepts that the applicant fears harm in Fiji on account of her gender and her sexual orientation from her family, and in relation to her sexual orientation, additionally from members of society in general.
The applicant has provided credible evidence of significant physical violence and emotional abuse at the hands of her parents in the past when she disobeyed them, failed to meet their expectations, refused to marry and revealed her sexual orientation.
Based on the applicant’s evidence and the above country information, the Tribunal finds that the applicant faces a real chance of serious harm in Fiji and that the combined factors of her age, gender, and her sexual orientation heightens her risk. The Tribunal notes, for example, that in 2021 the Fijian government acknowledged that the prevalence of gender-based violence in Fiji is high and that women with diverse sexual orientation and gender identity and expression experience higher rates and more severe forms of violence in Fiji.[40] Given the applicant’s young age, her family has the ability to exert control over her life and there is a real chance they will force her to marry a man and/or otherwise force her to repress her sexuality through threats and physical violence.
[40] Government of Fiji, Committee on the Elimination of Discrimination Against Women, ‘Information received from Fiji on follow-up to the concluding observations on its 5^th periodic report’ (2020) 4.
The harm feared includes physical violence capable of constituting significant physical harassment and/or significant physical ill-treatment pursuant to s 5J(5) of the Act. The harm also includes forced marriage. As above, the Tribunal has assessed there to be a real chance that the applicant would be compelled into marriage without her consent, through the use of force and other coercion, and that this amounts to serious harm for the purposes of s 5J(4) of the Act.[41] The perpetrators of these forms of harm include her family and members of the Fijian community.
[41] In FMN17 v MICMSMA (2020) 274 FCR 612 the Federal Court – considering the complementary protection criteria – found that forced marriage may meet the definition of significant harm in s 36(2A) of the Act. The Court drew on UK jurisprudence referring to forced marriage as an ‘appalling evil’ and a ‘gross and abhorrent violation of [a person’s] rights under, for example, article 16(2) of the Universal Declaration of Human Rights 1948 [and] article 23(3) of the International Covenant on Civil and Political Rights 1966…’ at [26]-[29] and [50], citing R (Quila) v Secretary of State for the Home Department [2012] 1 AC 621.
The Tribunal is satisfied, on the basis of the country information outlined above, that the applicant’s gender and her membership of the particular social groups ‘women’ and ‘lesbians’ are the essential and significant reasons for the harm feared. Family violence and forced marriage are widely acknowledged to be forms of gender-based violence which disproportionately affect women and girls[42] and the country information outlined above supports the applicant’s evidence that she experienced abuse and violence when she failed to meet gender norms governing ideal behaviour for girls in Muslim Indo-Fijian families. She also experienced violence when she disclosed that she was a lesbian to her mother.
[42] ‘Terminology’, Australasian Institute of Judicial Administration (AIJA), National Domestic and Family Violence Bench Book (2021).
The applicant’s gender is innate, and her sexual orientation a characteristic so fundamental to her identify or conscience that she should not be forced to renounce it. These defining characteristics are not a shared fear of persecution. As such, the Tribunal finds that groups of which the applicant is a member satisfy s 5L of the Act and that the applicant fears harm for a s 5J(1)(a) reason.
The Tribunal finds there are no reasonable steps the applicant could take to modify her behaviour to avoid persecution. Such modifications would fall within various exceptions in s 5J(3), including conflicting with a characteristic that is fundamental to a person’s identity or conscience, and requiring her to alter or conceal her sexual orientation
Given the demography of Fiji and the entirety of the applicant’s personal circumstances, including her young age and financial situation, the Tribunal is satisfied that the persecution feared by the applicant applies to all areas of Fiji.
Additionally, given the country information above, the Tribunal is not satisfied that the applicant will be able to access effective protection measures from the Fijian authorities in respect of the family violence she fears and/or the harm directed at her by members of society on account of her sexual orientation. In this regard the Tribunal notes that, as set out above at paragraphs 42 and 53, information contained in the DFAT report indicates that state protection is inconsistent and not always available to victims of family violence and LGBTIQ+ people.[43]
[43] DFAT, Country Information Report Fiji (May 2022) [3.53]-[3.55], [3.61].
For these reasons, the Tribunal finds that the applicant has a well-founded fear of persecution for reason of her membership of the above particular social groups if she were to return to Fiji, now or in the reasonably foreseeable future. It follows that the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

As the Tribunal has found that the applicant has a well-founded fear of persecution for the reasons above, the Tribunal does not consider it necessary to assess the applicant’s other protection claims relating to other forms of gender-based violence.
Section 36(3) of the Act provides that Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail themselves of a right to enter and reside in a third country. In this case, there is no evidence to suggest that the applicant has any right to enter and reside in any other country and the Tribunal finds that s 36(3) does not apply in the circumstances of this case.
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.
Adrienne Anderson
Member

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

[2024] AATA 2746

9 May 2024

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