Minister for Immigration and Citizenship v. SZONJ

The respondent was a victim of domestic violence at the hands of her husband for a number of years in her native country, Fiji. After unsuccessfully attempting to obtain assistance from local police, she fled to Australia and applied for a protection visa. To be recognized as a refugee the respondent had to show that Fiji’s failure or unwillingness to protect her was motivated by a reason listed in the Convention Relating to the Status of Refugees 1951 (Convention), in this instance, her membership in a particular social group. Respondent argued she belonged to the following social groups: women in Fiji, women in Fiji who have left their husbands, and women who refuse to conform to the social norms of Fijian Indo society. She argued that her membership in these groups meant that Fijian police would not protect her from her husband’s assaults if she returned to Fiji. The Refugee Review Tribunal (Tribunal) found: (i) there was no evidence that the Fijian authorities withheld state protection from the respondent based on her membership in these particular social groups; (ii) Fiji has laws against domestic violence; and (iii) Fiji had a police force and judiciary to give effect to its domestic violence laws. On appeal, the Federal Magistrate’s Court overturned the Tribunal’s decision, finding that the Tribunal erred by failing to explicitly evaluate whether Fiji’s laws were sufficient to protect a person in the respondent’s position. The Full Federal Court overturned the Federal Magistrate’s Court’s decision and upheld the reasoning of the Tribunal, holding that the test for refugee protection is not satisfied where (i) the persecution is by a non-state agent (here, the respondent’s husband) for a reason that has no connection to the Convention, and (ii) the state fails to prevent the persecution due solely to its inability to implement relevant laws due to lack of resources.