2403472 (Refugee)

The Administrative Appeals Tribunal considered the protection visa application of a young, Muslim, Indo-Fijian woman who identified as lesbian. The applicant claimed she feared being forced into marriage, rape, or death upon return to Fiji due to her family's poverty, her parents' health issues, and prevailing cultural norms. She also expressed fear of being kidnapped and sold. The Tribunal was required to determine whether the applicant had a well-founded fear of persecution for reasons of race, religion, or membership of a particular social group, or if she faced a real risk of significant harm as a necessary and foreseeable consequence of removal from Australia to Fiji.

The Tribunal applied the criteria for a well-founded fear of persecution under section 5J of the *Migration Act 1958* (Cth), which requires a genuine fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, and a real chance of such persecution upon return. The court also considered the definition of "significant harm" under section 36(2A) and the exceptions outlined in section 36(2B). The Tribunal noted that membership of particular social groups, such as "women" and "lesbians," could be grounds for persecution if the characteristic is innate or immutable, fundamental to identity, or distinguishes the group from society. The Tribunal also had regard to Ministerial Direction No. 84 and relevant country information.

The Tribunal found that the applicant's combined characteristics of age, gender, and sexual orientation heightened her risk. It concluded that the applicant satisfied the criteria for being a refugee under section 36(2)(a) of the Act. Consequently, the Tribunal remitted the matter for reconsideration with a direction that the applicant meets the refugee criterion.