2419440 (Refugee)
[2025] ARTA 1370
•30 May 2025
2419440 (Refugee) [2025] ARTA 1370 (30 May 2025)
DECISION AND
REASONS FOR DECISION
Respondent:Minister for Immigration and Multicultural Affairs
Tribunal Number: 2419440
Tribunal:General Member R. Germov
Date:30 May 2025
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
Statement made on 30 May 2025 at 11:28am
CATCHWORDS
REFUGEE – protection visa – Fiji – political instability and corruption and economic hardship – official persecution of employer – late claims of societal discrimination and family violence as single mother, and same-sex relationship – mental health – personal nature of claims and no representation before review – reasonable explanation – consent to decision without hearing and request for referral for ministerial consideration – undetailed claims and no evidence of current status – delay in applying for protection – applied after multiple entries and departures – study and employment record – country information – relocation not practicable – decriminalisation of same-sex relationships and constitutional protection against discrimination, and socio-economic changes – possible for applicant to apply for ministerial consideration personally – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5(1), 5H(1)(a), 5J(1)(a), (4), (5)(c), 5L(c), (d), 36(2)(a), (aa), (2A), 65(1)(a)(ii), 351, 367A
Administrative Review Tribunal Act 2024 (Cth), s 106(3)
Migration Regulations 1994 (Cth), Schedule 2CASES
ABAR15 v MIBP (No 2) (2016) 242 FCR 11
Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510
Appellant S395/2002 v MIMA [2003] HCA 71; (2003) 216 CLR 473
BXFHJ v MIMA [2025] ARTA 550
Chan Yee Kin v MIEA (1989) 169 CLR 279
DAO16 v MIBP [2018] FCAFC 2; (2018) 258 FCR 175
EIZ20 v Child Support Registrar [2023] FedCFamC2G 637
Kathiresan v MIMA [1998] FCA 159
Luu v Renevier (1989) 91 ALR 39
MIAC v MZYYL [2012] FCAFC 147; (2012) 207 FCR 211
MIAC v SZIAI [2009] HCA 39; (2009) 259 ALR 429
MIMIA v VSAF [2005] FCAFC 73
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (2004) 52 FCR 437
Re MIMA; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437
Re RRT; Ex parte H [2001] HCA 28; (2001) 179 ALR 45
SJSB v MIMIA [2004] FCAFC 225Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs[1] on 23 June 2024 to refuse to grant the applicant a protection visa under section 65 of the Migration Act 1958 (Cth) (the Act).
[1] As the responsible Minister was then named
The applicant is a female, indigenous Fijian now aged [Age]. She applied for the protection visa on 7 November 2022. The delegate refused to grant the visa on the basis that the applicant was not owed protection obligations by Australia.
The applicant sought review of the delegate’s decision at the Administrative Appeals Tribunal (“the AAT”) on 25 June 2024 within prescribed time limits.[2] On 14 October 2024, the AAT was abolished and became the Administrative Review Tribunal (“the Tribunal”). Under the Administrative Review Tribunal (Consequential and Transitional Provisions No.1) Act 2024 (Cth) (“the Transitional Act”), review applications before the AAT that were not finalised before 14 October 2024 are deemed to be applications for review to the Tribunal. The Transitional Act gives the Tribunal authority to continue and finalise any aspect of the review not already completed by the AAT.
[2] Section 412(1)(b) of the Act and Regulation 4.31 of the Migration Regulations 1994 as these provisions existed before 14 October 2024
The Tribunal is satisfied that the review application was validly made and that it has jurisdiction to determine the review.[3]
[3] Sections 412(1)-(3) of the Act as they existed before 14 October 2024
The Department of Home Affairs movement records show that the applicant first arrived in Australia [in] May 2015 as the holder of a subclass 600 visitor visa which authorised her to remain until [August] 2015. She left Australia [in] August 2015. Her subsequent movements as the holder of further subclass 600 visitor visas, which authorised her to remain for three months, were as follows:
(a) Arrived in Australia [in] January 2019 and departed [in] April 2019
(b) Arrived [in] July 2019 and departed [in] October 2019
(c) Arrived [in] November 2019 and departed [in] February 2020
(d) Arrived [in] August 2022 and has not departed since that time
The applicant was represented in relation to the review. Her representative was appointed on 24 April 2025. The applicant decided not to appear before the Tribunal to discuss her claims and forwarded a statement and brief submission for the Tribunal’s consideration on 16 May 2025.
Section 106(3) of the Administrative Review Tribunal Act 2024 (“the ARTA”) applies to proceedings where the only parties are the applicant and a non-participating party. The Tribunal may make a decision without a hearing if it is wholly in favour of the applicant: section 106(3)(b)(i), or if the applicant requests that the decision be made without a hearing: section 106(3)(b)(ii) and it appears to the Tribunal that the issues for determination in the proceeding can be adequately determined in the absence of the parties to the proceeding: section 106(3)(c). It is necessarily implicit in section 106(b)(ii) of the ARTA that the decision does not have to be favourable to the applicant otherwise section 106(b)(i) would be otiose.[4]
[4] BXFHJ v Minister for Immigration and Multicultural Affairs [2025] ARTA 550 at [60].
Section 106 of the ART Act has not yet been the subject of judicial consideration but a similar provision, section 34J of the Administrative Appeals Tribunal Act 1975, was considered by Judge Kirton in EIZ20 v Child Support Registrar [2023] FedCFamC2G 637. Judge Kirton held that in circumstances where the parties have requested a decision without a hearing and the Tribunal had given the parties the opportunity to submit any further information it “was open and reasonable for the Tribunal to conclude that [the parties] had provided all the information they considered important and relevant, and that it could properly review [the matter] with the information before it”: at [59]. It is for the Tribunal to make an assessment as to whether it can proceed with a decision without a hearing and there is no obligation to seek further information or hold a hearing: at [60].
Her Honour referred to the High Court’s judgment in Minister for Immigration and Citizenship v SZIAI [2009] HCA 39 in which the Court held that at [49] that the Tribunal is not obliged to conduct an enquiry to discover whether a party could have been able to put their case better or support it with other evidence: at [66].
Judge Kirton’s approach was discussed in the recent decision made by the Tribunal’s President, Justice Kyrou and Deputy Presidents Burford and Dordevic in BXFHJ v Minister for Immigration and Multicultural Affairs [2025] ARTA 550 (“BXFHJ”). The Tribunal noted that the phrase “it appears to the Tribunal” was chosen by Parliament instead of “the Tribunal is satisfied” in section 106(3)(c) of the ART Act as demonstrating an intention that the Tribunal’s view regarding determination of the issues in the proceeding without a hearing may fall short of definitive conclusion: at [40].
It was observed in BXFHJ supra that “in circumstances where an applicant has expressly requested that a decision be made without holding a hearing…it is difficult to envisage a situation where it would be a proper exercise of the discretion to refuse to decide the proceeding without holding a hearing and, instead insist that the applicant attend a hearing. The Tribunal is entitled to rely on an applicant’s exercise of their choice to waive their right to a hearing and have their application for review determined on the papers”: at [65].
In light of the above, the Tribunal finds that it can adequately determine the application in the absence of a hearing in accordance with the applicant’s wishes based on the evidence discussed below.
BACKGROUND
Evidence before the Department
The applicant was not represented in relation to her primary application before the Department. In her protection visa application, the applicant stated that she was of the Christian faith and had never been married. Her immediate family in Fiji were her parents, [sisters and brothers] as well as her daughter, who was born on [Date]. The applicant had lived at the same address in [Town] from 14 August 1993 until [August] 2022. Her application indicated that she spoke, read and wrote both English and Fijian.
In addition to her travels to Australia, the applicant had visited [Country 1] in 2011, [Country 2] in 2012, [Countries 3 and 4] in 2014, [Country 5] in 2015, [Countries 6 and 7] in 2016 and [Country 8] in 2017. These trips were stated to be for the purpose of training or attending conferences but the duration of the stays on each occasion indicate that the applicant took the opportunity to engage in tourism or other activities.
The applicant completed a Diploma in [Subject] at [University] in December 2001. She was in continuous employment in [work tasks] positions at various employers from 2001 until January 2021 and she ran a small business from January 2021 until 28 October 2022 (which post-dates her last arrival in Australia).
The applicant claimed that she left Fiji because of the high unemployment rate caused by political instability over many years and that she could earn better income in Australia to support her daughter, nieces and nephews. She stated that if she returned and was able to find employment, the salary would be insufficient to cover her living expenses. She asserted that this is why many Fijians, even those with higher qualifications, were coming to work in Australia under the Pacific Australia Labour Mobility (“PALM”) scheme as they could earn more money doing farm work rather than teaching or working for the Fijian Government.
The applicant also claimed that Fijians undertook work in aged care, abattoirs and farms that Australians did not wish to do and that they fulfilled a useful role in Australia and contributed to the economy through their labour and payment of Australian taxes She asserted that sending Fijians back to Fiji would only contribute to more poverty and crime. Fiji was hiring cheap labour from India, Pakistan and Sri Lanka which also adversely affected the job market for Fijians.
The harm the applicant feared was poverty and lack of government assistance as well as being the object of gossip and resentment because returning Fijians were regarded as having a lot of money and that once their money ran out, the others enjoyed seeing them suffer. The applicant said that she had worked for a labour union in Fiji and the Fijian Government did not support unions politically and filed criminal charges against unionists to silence dissent. She asserted that the Fijian Government’s claim that Fiji’s economy was booming was not reflected in the day to day life of most Fijians.
The applicant stated that there was no place to which she could relocate in Fiji as it was a small island nation that was characterised by a political dictatorship and nepotism. The applicant cited the case of the Fijian Prime Minister’s son, Mr Meli Bainimarama, who was not prosecuted for domestic violence and illicit drug offending due to the directives given to the police by the Attorney General of Fiji. The application was accompanied by a copy of the applicant’s Fijian passport biodata page; a curriculum vitae, copies of her educational certificates and articles concerning corruption and poverty in Fiji; namely:
(a)“Corruption in the Current Government” with no date or source specified;
(b)Undated entries by Jake Cavu and Nicholas Ting on what appears to be an internet site called Fiji Exposed Forum;
(c)an undated post by shared by a person named Acabula Lailai on an unidentified internet site concerning the poor state of Fiji’s roads;
(d)an article from an unidentified and undated source concerning a lawyer named Mr Richard Naidu who was being prosecuted in Suva;
(e)an undated article about the National Federation Party from an unidentified source; undated photographs purportedly from Reddit and FBC News depicting images of poverty in Fiji that are not seen by tourists;
(f)an article titled “World Bank report on Fiji’s poverty level a ‘concern’” by Arieta Vakasukawaqa dated 11 May 2022 (source unidentified);
(g)an article titled “Borrowing because it is cheap is an amateurish tactic – Narube” by Vijay Narayan, dated 19 July 2022 (source unidentified);
(h)apparent posts from unidentified social media sources and dated 1 December 2020 concerning the Fijian Attorney General Mr Aiyaz Khaiyum’s involvement in a bombing incident in 1987; and
(i)an article titled “Government closes the Technical College – a poor decision” dated 18 November 2020 by a person named Professor Biman Prasad from an unidentified source.
The applicant was not interviewed by the delegate. The delegate was not satisfied that the applicant had engaged in any political activity or public criticism of the Fijian Government. She accepted that the Fijian Government restricted the freedoms of peaceful assembly but noted those restrictions were for national security and public safety. She stated that Fiji’s Constitution protected these freedoms generally except in limited circumstances. The delegate did not find that the applicant had a real chance of being seriously harmed because of her political opinion. The delegate also found that the applicant’s fears of economic hardship, poverty and gossip were not related to her race, religion, nationality. Membership of a particular social group or political opinion and hence she did not meet the refugee criterion in sections 36(2)(a) and 5J(1)(a) of the Act.
The delegate acknowledged that the applicant may face economic difficulties in Fiji but found that economic hardship, poverty and gossip did not fall within the definition of significant harm so as to enliven Australia’s complementary protection obligations and that there was no evidence before her to suggest that the applicant would be at real risk of the deliberate infliction of significant harm.
Evidence before the Tribunal
The applicant’s representative forwarded a statement from the applicant on 16 May 2025 under cover of an email that requested a decision on the papers and which raised the following additional claims set out below.
The applicant claimed that she had been subjected to family violence, verbal abuse, ostracization and discrimination from her family because she was a single mother which caused her emotional and psychological harm. The applicant stated that she suffered from anxiety, depression and feelings of worthlessness because of her family’s treatment of her as well as societal stigma based on assumptions that she was unfit to care for her child. Her extended family provided no support which made it harder for her to provide for her child.
The applicant asserted that she could not relocate anywhere in Fiji and the Fijian police did not take family violence seriously. She concluded her statement by asserting that she has worked in Australia to support her family, abided by the law and contributed to the Australian economy. The applicant requested that in the event the Tribunal could not make a favourable decision, that it consider supporting a request for Ministerial intervention pursuant to section 351 of the Act on the basis of her personal circumstances and ties to Australia.
The applicant’s representative added that the applicant had entered into a same sex relationship when she lived in Fiji which subjected to her to further opprobrium and violence from her family. The representative stated that these claims were not raised previously because of the applicant’s sense of deep shame as she comes from a religiously conservative Fijian culture which does not approve of same sex relationships.
The Tribunal emailed the applicant’s representative on 16 May 2025 to request a copy of the birth certificate for the applicant’s daughter but had not received a response at the time of decision.
PROTECTION VISA CRITERIA
The criteria for a protection visa are set out in section 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 sections 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: section 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: section 5H(1)(b).
Under section 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. A real chance is one that is not remote, insubstantial or far-fetched: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 279 at p.389 per Mason CJ; at p. 398 per Dawson J; at p.407 per Toohey j and at p. 429 per McHugh J. A fear can be well founded even if the possibility of persecution or serious harm occurring is less than 50%: at p. 398 per Dawson J.
The concept of well-founded fear has subjective and objective elements. “Fear” refers to the applicant’s feelings and “well-founded” connotes that the fear has a rational basis that is supported by independently verifiable objective facts concerning the situation in the applicant’s home country.[5]
[5] Refugee Law Guidelines at paragraph 3.4.2
Persecution must involve serious harm to the person and systematic and discriminatory conduct. Serious harm includes threats to a person’s life or liberty, significant physical harassment, significant physical ill treatment, significant economic hardship that threatens the person’s capacity to subsist, denial of access to basic services where that denial threatens the person’s capacity to subsist and denial of the capacity to earn any kind of livelihood where that denial threatens the person’s capacity to subsist: section 5J(5). Any of the aforementioned reasons must be an essential and significant reason for the serious harm being inflicted: section 5J(4).
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 sections 5J(2)-(6) and sections 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in section 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: section 36(2)(aa) (‘the complementary protection criterion”). The Full Federal Court in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) FCR 505 at [246] held that the real risk test was the same as the real chance test.
The meaning of significant harm is exhaustively defined in section 36(2A) of the Act, meaning that the person will be arbitrarily deprived of their life, be subjected to the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment. The terms cruel and inhuman treatment and punishment or degrading treatment or punishment are further defined in section 5(1) of the Act and the definitions are included in the legislative extracts appended to this decision as attachment A.
Under s 36(2B)(b) of the Act there is taken not to be a real risk that an applicant will suffer significant harm in a country if the Tribunal is satisfied that they could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm. That is, the level of protection must be such to reduce the risk of the applicant being significantly harmed to something less than a ‘real risk’: Minister of Immigration and Citizenship v MZYYL [2012] FCAFC 147; (2012) 207 FCR 211 at [36]-[40].
The provision requires consideration of the source and nature of the harm faced, the nature and degree of protection able to be afforded by the authorities from the specific harm faced, whether that protection could be obtained, and whether, upon obtaining that protection there would still be a real risk of significant harm: ABAR15 v Minister for Immigration and Border Protection (No 2) (2016) 242 FCR 11 at [60]–[61].
MANDATORY CONSIDERATIONS
In accordance with Ministerial Direction No.84, made under section 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 (“the DFAT Report”), to the extent that they are relevant to the decision under consideration.
The most recent report from DFAT is the Country Information Report for Fiji dated 20 May 2022 together with the country information referred to in this decision.
The Refugee and Complementary Guidelines prepared by the Department contain legal analysis and provide examples of how the relevant law has been applied in different jurisdictions. They also provide guidance as to how the law is to be applied.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal is required to make findings of fact on relevant matters in determining whether an applicant is owed protection obligations. This will often involve an assessment of an applicant’s credibility. The Australian courts have made a number of observations concerning credibility assessment in the protection visa application context and the Tribunal is mindful of the difficulties faced by applicants in a foreign legal system and culture. Such difficulties can be compounded by an applicant’s experiences of trauma, their level of education and state of physical and mental health.[6] However, this does not mean that the Tribunal is obliged to accept what an applicant says uncritically.[7]
[6] DAO16 v Minister for Immigration and Border Protection [2018] FCAFC 2; (2018) 258 FCR 175 at [30]; Re RRT; Ex parte H (2001) HCA 28 (2001) 179 ALR 45 at [30] and [34] per curiam; Kathiresan v Minister for Immigration and Multicultural Affairs [1998] FCA 159 per Gray J
[7] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1004) 52 FCR 437 at 451 per Beaumont J
Section 5AAA of the Act makes it the applicant’s responsibility to specify all the particulars of a claim and provide sufficient evidence to substantiate any claim that enlivens Australia’s protection obligations. The Tribunal does not have any responsibility or obligation to specify or assist an applicant in specifying or establishing any particulars of their claims. This reflects the long-established legal principle in Australia that it is up to the applicant to make out their own case[8] and that the Tribunal is not in the position of contradictor or cross-examiner. It is not required to have evidence rebutting an applicant’s assertion in order to find that an applicant’s assertion is not made out.[9]
[8] Re Ruddock; Ex parte Applicant S154/2002 [2003] HCA 60 per Gleeson CJ, Gummow, Callinan and Heydon JJ at [57]; Luu v Renevier (1989) 91 ALR 39 at p. 45 per coram; Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at p. 170 per Wilcox J
[9] Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437at [57] per Gummow and Heydon JJ; Gleeson CJ agreeing and [85] per Kirby J; Abebe v the Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at 576[187] per Gummow and Hayne JJ; Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; (2009) 259 ALR 429 at [18] per curiam.
The Tribunal accepts that Fiji is the receiving country for the purposes of assessing Australia’s protection obligations based on the applicant’s Fijian passport and there being nothing before the Tribunal to suggest otherwise.
The applicant raised the issues of economic hardship, political instability, corruption and persecution of labour unions in Fiji as well as societal discrimination and family violence because she had an illegitimate child (now aged [Age]) and had been involved in a same sex relationship in Fiji. Apart from economic hardship, political instability, corruption and persecution of labour unions in Fiji, the other claims were raised a week before the scheduled hearing date of 23 May 2025.
Section 367A of the Act requires the Tribunal to draw an adverse inference to the credibility of an applicant’s claim or evidence if that claim or evidence was not raised before the primary decision was made and if the Tribunal is satisfied the applicant does not have a reasonable explanation for why that claim or evidence was not provided earlier.
The Tribunal accepts that the recent issues raised by the applicant were of a highly sensitive, personal nature which the Tribunal appreciates the applicant would not be comfortable disclosing to strangers. The applicant was not represented prior to the review and the Tribunal is satisfied that there is a reasonable explanation for the claims not being raised before the primary decision was made.
Family Violence
The DFAT Report notes that Fiji is a male dominated society with well-entrenched gender roles. Gender based violence is a major problem and Fiji has one of the highest rates of such violence in the world.[10] Police protection is available but not consistently. The Fiji Women’s Crisis Centre has a hotline that can provide some assistance.[11] DFAT further notes that relocation is not practicable due to small size of Fiji and that people can be tracked through kinship networks.[12] In the applicant’s case, the violence can from family members rather than a male partner. DFAT noted that family ties, loyalties and traditional hierarchies can protect perpetrators.[13]
[10] DFAT Report at paragraphs 3.49-3.51
[11] Ibid at paragraph 3.53
[12] Ibid at paragraph 3.55
[13] Ibid at paragraph 3.57
The Tribunal has not received a copy of the birth certificate for the applicant’s daughter and has no evidence from her now adult daughter as to whether the daughter has herself experienced discrimination or witnessed the applicant being subjected to family violence and discrimination. The applicant has not provided details of the family violence she claims she experienced in terms of who perpetrated it, what happened and how often.
Nevertheless, in light of the country information before it, the Tribunal is prepared to accept that the applicant has had a child out of wedlock and that she has experienced family violence and societal discrimination.
Same Sex Relationship
The High Court of Australia has held that homosexuals can constitute a particular social group for the purposes of enlivening Australia’s protection obligations under previous legislation.[14] Homosexuals can also constitute a particular social group as currently defined in section 5L of the Act as they share an innate or immutable characteristic[15] that is so fundamental to their identity that they should not be forced to renounce it[16] and it is a characteristic that distinguishes the group from society.[17] The shared characteristic is not the fear of persecution.[18]
[14] Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473
[15] Section 5L(c)(i)
[16] Section 5L(c)(ii)
[17] Section 5L(c)(iii); see also Applicant A v Minister for Immigration and Ethnic Affairs (1996) 190 CLR 225 at p. 247 per Dawson J, at p. 265 per McHugh; at pp 270 and 285 per Gummow J Applicant S v Minister for Immigration and Multicultural Affairs [2004] HCA 25; (2004) 217 CLR 387 at [36]
[18] Section 5L(d)
The Tribunal notes that the definition in section 5L of the Act is broader than the concept considered by the High Court under previous legislation when the Court construed Article 1A(2) of the United Nations Convention relating to the Status of Refugees Convention 1951 (“the Refugees Convention”).[19] Section 5L(c) provides three alternatives to the common characteristic that is shared or perceived to be shared by members of the group, only one of which needs to be satisfied. Section 5L(d) of the Act specifies that the particular social group characteristic must not be a fear of persecution or serious harm.
[19] Sections 5H,HJ and 5L were introduced into the Act by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Act 2014 (Cth). The Explanatory Memorandum to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth) at p.178 [1220] states 'immutable' in section 5L is intended to encompass characteristics which are not capable of change. It may include attributes acquired during one’s life, such as the health status of being HIV positive, or a certain experience such as being a child soldier or sex worker.
The DFAT Report states that Fiji is one of the few Pacific nations that has constitutional protections against LGBTIQ+ discrimination. Same sex relationships have been decriminalised since 2010 and same sex couples can live in Fiji although they cannot get legally married.[20] However, the DFAT Report also notes that LGBTIQ+ issues are seldom spoken about and there have been few studies done so that it is difficult to gauge the extent of societal discrimination. Gay men and lesbians seldom disclosed their sexuality to their families and were freer to live in same sex relationships in Suva rather than in rural areas.[21] The tourism industry provides employment for LGBTIQ+ individuals as it is more international in nature and enables people to live away from their families.
[20] At Paragraph 3.58
[21] Ibid at paragraphs 3.59-3.60
There have been reports of LGBTIQ+ persons being murdered or discriminated against in obtaining goods and services. DFAT assesses that LGBTIQ+ people face moderate levels of official and societal discrimination in Fiji and a moderate risk of violence.[22]
[22] Ibid at paragraphs 3.61-3.65.
The applicant has not provided any details about the same sex relationship she claims she had in Fiji such as when it occurred and how long the relationship lasted. The applicant has not claimed that she is currently in a same sex relationship. The applicant has claimed that she suffered depression and that her mental health was adversely affected by her family’s attitude and treatment. The Tribunal accepts that the applicant may have suffered these consequences in the past but notes that there is no evidence from a mental health professional concerning any ongoing impact on the applicant.
Single Mothers
Single mothers in Fiji, meaning women who had children out of wedlock, can experience societal stigma and the Tribunal is prepared to accept that the applicant experienced this in her life as well as strong disapproval from her family.
However, there appears to have been positive changes in attitudes to single mothers since the applicant gave birth to her daughter. The Fijian Government has introduced measures to assist single mothers by increasing the Child Protection Allowance and housing assistance.[23] The Fiji National University has a Solo Moms project that seeks to inform single mothers about pathways to higher education with a view to increasing the aspirations of single mothers wanting to change their lives.[24]
[23] “Help for single mothers” – Fiji Times, 20 September 2023
[24] “Solo mothers inspired during outreach session” 6 March 2025: “Single mothers empowered with business skills” – Rikita Pratap, FBC News, 6 May 2025: >
The Economic Empowerment Project aims to help women in rural areas who live with mental health issues and are in vulnerable situations to create financial independence by gaining skills in basket weaving, mat weaving, jewellery making and fabric art printing. These skills are part of their cultural heritage and have enabled single mothers to start their own businesses.[25] Single mothers in Fiji also have a Facebook Page: Single Mom Fiji.
[25] “Resilient mothers in Fiji set a new path for themselves” – Mary MacKillop Today, 12 June 2024: Resilient mothers in Fiji set a new path for themselves. - Mary MacKillop Today
Economic Hardship
The Tribunal accepts that the applicant can earn a better living in Australia than in Fiji. The DFAT Report mentions that the World Bank classified Fiji as an upper middle income country that had one of the largest economies in the Pacific region. Tourism accounted for 40% of its gross domestic product and remittances from Fijians living overseas were also a significant source of income.[26] The DFAT Report also noted that 30% of Fiji’s population lived in poverty but that subsistence farming and kin based wealth distribution helped to ameliorate it.[27]
[26] At paragraphs 2.7 to 2.8
[27] At paragraph 2.9
DFAT’s analysis was confirmed by other sources such as Westpac Wave Fiji Quarterly Economic Update, October 2024 (“the Westpac Report”). The Westpac Report noted that tourism was booming and that overseas remittances were the second largest source of foreign exchange for Fiji. Interestingly, in relation to remittances, one fifth went to households in the top 10% of the income bracket whereas only 4.3% went to the lowest income group. The Westpac Report concluded that this suggested that wealthier families are more likely to have relatives abroad who can send money back to them.[28]
[28] At p.8
The Westpac Wave Fiji Economic Update and Outlook Report for April 2025 was cautiously optimistic about Fiji’s economy though its estimated growth rate in 2024 of 3.4% was lowered to 2.7% after the volatility caused to the global economy by the policies of the Trump administration.[29]
Does the applicant satisfy the refugee criterion for protection?
[29] At p.3
Findings
The Tribunal accepts the applicant’s claims concerning her biographical details, family composition, education and international travel. It is also prepared to accept that she experienced family violence and societal stigma from being an unmarried mother.
Family violence is predominantly experienced by females.[30] Females in general share an innate or immutable gender characteristic[31] that is fundamental to their identity,[32] their gender distinguishes them in society,[33] and they are perceived by most societies as being a particular social group. The Tribunal finds that a combination of the applicant’s gender and single motherhood in the context of Fijian culture are common characteristics that are not a shared fear of persecution and constitute a particular social group as contemplated by sections 5H(1), 5J(1)(a), 5J(5)(c) and 5L of the Act.
[30] National Domestic and Family Violence Bench Book, Australian Institute of Judicial Administration, Attorney General’s Department, Commonwealth of Australia, June 2023 at p.1433
[31] Section 5L(c)(i)
[32] Section 5L(c)(ii)
[33] Section 5L(c)(iii)
The Tribunal accepts that the Fijian authorities do not provide effective protection from family violence and that relocation is not an enduring solution given the size of Fiji and the depth of kinship ties. Consequently, the Tribunal finds that the essential and significant reason for the harm experienced by applicant in the past is due to her membership of a particular social group of unmarried mothers in Fiji.
The applicant’s daughter is an adult. The applicant has not claimed that she will be subjected to family violence or social stigma should she return to Fiji because of her single motherhood status. There is nothing to suggest the applicant has a real chance of being subjected to family violence or social stigma because she is a single mother in the reasonably foreseeable future.
The Tribunal is prepared to accept that the applicant may have had a same sex relationship in Fiji for which she suffered adverse treatment from her family. She has not claimed that she suffered adverse treatment in society generally or in her employment because of that relationship. There is no claim before the Tribunal that the applicant has been involved in a same sex relationship in Australia or that she would enter a same sex relationship if she were to return to Fiji. The Tribunal has concluded that the applicant does not face a real chance of serious harm on this basis in light of the evidence before it.
Significant economic hardship must be of such a nature that it threatens a person’s capacity to subsist: sections 5J(5)(d)-(f) of the Act and that this must be for one or more of the reasons mentioned in section 5J(1)(a). The applicant has claimed that many educated Fijians leave Fiji to come to Australia as they can earn more money here, even doing rural labour. The Tribunal accepts that assertion but the applicant has had tertiary education, a record of solid employment and has undertaken a significant amount of international travel. The applicant stated in her protection visa application that she wanted to continue to be able to support her daughter, niece and nephew which suggests that she is not alienated from her all her family members.
The applicant had visited Australia on several occasions but did not apply for protection despite her claims of being discriminated against and subjected to family violence. Her failure to apply for protection when she had several opportunities to do so raises the inference that she did not fear returning to Fiji.
The evidence demonstrates that despite her family issues and claimed impact on her mental health, the applicant admirably rose to the challenges she faced. Her single mother status does not appear to have adversely affected her career prospects.
The Tribunal has placed no weight on the articles submitted by the applicant concerning the corruption and shortcomings of the Fijian Government. They are from unattributed and often undated sources. The applicant has not claimed to have been politically active. She worked for [Employer 1] from 9 February 2009 until 28 April 2017 as [an occupation]. The duties of that position were not political in nature and she has not claimed that she had attracted adverse attention from the Fijian authorities because of her employment at that organisation. The Tribunal finds that the applicant does not face a real chance of serious harm on the basis of her actual or imputed political opinion.
The Tribunal has concluded that that the applicant does not face a real chance of serious harm on any of the bases she has asserted for the essential or significant reasons of her race, religion, nationality, membership of a particular social group or political opinion were she to return to Fiji now or in the reasonably foreseeable future.
Does the applicant satisfy the complementary protection criterion for protection?
Having concluded that the applicant does not meet the refugee criterion in section 36(2)(a), the Tribunal has considered the alternative complementary protection criterion in section 36(2)(aa).
The applicant claimed that she would not be able to find employment with an adequate salary to meet her expenses if she had to return to Fiji whereas she is a law abiding, tax paying person in Australia contributing to Australia’s community. The Tribunal accepts that the applicant is a productive, capable individual who is living a law abiding life in Australia that is enabling her to support herself and her family. However, economic hardship does not fall within the exhaustive definition of significant harm in section 36(2A) of the Act. Economic hardship is a systemic problem in Fiji and is something that is experienced by the Fijian population generally. Any such hardship is not personally directed at the applicant.
The applicant’s concern that she would be regarded with resentment by other Fijians and gossiped about does not fall within the definition of significant harm. The DFAT Report states that it is not aware of any form of official or societal discrimination against failed asylum seekers returning to Fiji. DFAT notes that many Fijians have family and cultural links to Australia such that return to Fiji would not be seen as unusual.[34]
[34] At paragraph 5.28
There is no other evidence before the Tribunal to suggest that there is a real risk that the applicant will be arbitrarily deprived of her life, subject to the death penalty being carried or be subjected to cruel or inhuman treatment or to degrading treatment or punished as further defined in section 5(1) of the Act.
The applicant’s assertions concerning Australia’s need for people to work in aged care and abattoirs may well be correct but they are not relevant to the issue of whether Australia owes her protection obligations.
In light of the matters discussed above, the Tribunal concludes that there is no real risk the applicant will be subjected to any form of harm that would be the result of any act or omission by which severe pain or suffering, whether physical or mental, would be intentionally inflicted on her such as to fall within the definitions or torture, cruel or inhuman punishment or degrading treatment or punishment. Accordingly, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that she will suffer significant harm as defined for the purposes of complementary protection.
Ministerial Intervention Referral Request
The applicant has requested the Tribunal to consider supporting her request for consideration by the Minister pursuant to section 351 of the Act if it cannot make a favourable decision concerning her protection visa application. The Tribunal has no evidence or submissions addressing the considerations specified by the Minister concerning the circumstances in which he would be prepared to consider exercising his discretion. Consequently, the Tribunal does not consider the matter as appropriate for referral based on the current information before it. A Ministerial intervention request is a course available for the applicant to pursue herself.
CONCLUSION
Section 65(1)(a)(ii) of the Act requires the Tribunal to be affirmatively satisfied that the criteria for the visa are met. This does not require the Tribunal to reach a decision only if a particular matter is established.[35] The criteria are set out in sections 36(2A) and 36(2)(aa) of the Act. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a) or section 36(2)(aa) of the Act.
[35] SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [15]; Minister for Immigration and Multicultural and Indigenous Affairs v VSAF [2005] FCAFC 73 at [17].
There is no suggestion that the applicant satisfies section 36(2) on the basis of being a member of the same family unit as a person who satisfies sections 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in section 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Hearing Date: Not Applicable
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.
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