1510755 (Refugee)

1510755 (Refugee) [2019] AATA 3420 (26 August 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1510755
COUNTRY OF REFERENCE:                   India
MEMBER:Christine Cody
DATE:26 August 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

CATCHWORDS
REFUGEE – protection visa – India – medical treatment and care post-transplant – credibility – availability and standard of treatment in India – decision affirmed

LEGISLATION
Migration Act 1958 (Cth), s 36, 91R, 375A, 242AA
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

The applicant, a citizen of India, applied for a protection visa under s.65 of the Migration Act 1958 (the Act) on 26 August 2014. A delegate of the Minister for Immigration and Border Protection delegate refused to grant the visa on 22 July 2015. This is an application for review of a decision made by the delegate. The relevant law is set out in Annexure A.
The applicant was represented in relation to the application before the Department and in relation to the review by her registered migration agent.
The Department
On 12 August 2014 the agent provided to the Department the application forms together with a submission, supporting letters from her social worker and doctors, and a copy of the identity page of the applicant’s passport.
The application forms
According to the application forms, the applicant’s background and claims include the following:
·     The applicant was born in [year] in [Village 1], Punjab, India. She speaks, reads and writes in Punjabi, and her ethnicity is Indian Punjabi. Her religion is Sikh. In India she resided at a single address in village [Village 2], [Sub-District], [District]. She was educated for [number] years until April 2009.
·     Her [mother] resides in India as does her [sibling] (aged [number] years).
·     The applicant arrived in Australia [in] April 2009, holding a passport which had been issued [in] 2008. She came to Australia as the spouse of her [husband], who was a student[1].
·     After arriving in Australia she travelled back and forth to India on four occasions to visit family: December 2010 to February 2011; March 2012 to May 2012; November 2012 to December 2012; December 2013 to January 2014.[2]
·     In Australia she resided in Victoria and then [City 1].
·     Her most recent visa was a [temporary] visa granted on 21 February 2013, valid until 21 August 2014.
·     She is not currently employed, and she listed no previous employment.
[1] Source: evidence at hearing.
[2] Dates of these visits are also referred to in the delegate’s decision record provided to the Tribunal by the applicant.
Further background/claims were set out in the support letters provided and include the following:
The social worker [2014]
·     She states that information for the report was taken from the applicant and medical records.
·     The applicant’s marriage was an arranged marriage in India in [year]. The marriage is no longer working and she is separated from her husband. About 18 months earlier [i.e. about February 2013[3]] her relationship with her husband began to deteriorate due to the distance and they made the decision to separate. Prior to the separation her husband had applied for temporary residency and she too was holding a temporary visa.
[3] The letter was undated but received in August 2014; it is thus assumed to be from August 2014.
·     [Although she does not declare any past employment] the support letter states that there was little work where her husband was residing in Melbourne so she moved to [City 1] where she obtained a certificate in cleaning and supported herself and her husband’s studying costs on her cleaning wage.
·     In April 2014 she had accidentally consumed poisonous [food] in [City 1] leading to liver failure requiring liver transplantation and other surgeries.
·     Her new liver requires management with diligence, the need for a sanitary environment and daily medication for the rest of her life. She will have access to the medication in Australia which is more affordable and accessible under Medicare.
·     She will require ongoing medical follow-up to ensure her liver and general health condition is sustained. There is the possibility she could require further surgery for either her [organ] or liver in the future. Medical institutions in Australia can better support her through this compared to India.
·     It is arguable that she could be at risk of harm and loss of life if she returns to India; reference was made to “deprivation of life” [not mentioning the requirement of “arbitrary” deprivation of life]. She will not have access to medications, sanitary living conditions and a health system to manage the medical complexity of her liver transplantation.
·     It is stated that “[the applicant] reports and research suggests [with no indication as to what the research might be] that Government subsidised medical institutions and interventions in India would not be able to cater to the complexity of managing her new liver and the quality of their provisions is sub-standard or flawed with extensive waiting lists”.
·     Her [sibling] is studying in India and her mother was visiting her in Australia when she fell ill and she has remained in Australia to support her while she is unwell. Her father died in an accident in [year]. She has no other family members in India and describes her province as “quite poor”. Delhi is at least an eight-and-a-half hour train ride from her home. Her home is about 90 minutes from a big city.
·     It is requested that the application for protection be granted on compassionate grounds which will allow her to remain in Australia to continue her care. Her English is well-established and she has plans to be a contributing member of society and to apply herself to returned employment, study and enjoying the Australian way of life.
Dr [A], Hepatology Resident for Dr [B] ([Hospital]) and Dr[B] (Hepatology Staff Specialist)
·     These letters confirmed that she had liver failure secondary to [food] poisoning, had a liver transplant, she had developed [organ] ischaemia requiring [organ] resection and [another procedure]. She had also developed [medical condition] requiring [medical treatment]. She will require ongoing review of hepatology, transplant surgery [and other] teams, as well as medications to ensure that the liver graft survives. The hepatology team seeks that she is given permanent residency to ensure appropriate medical care.
The hospital discharge
·     This notes that she was discharged on 11 July 2014 with various follow-ups to occur. A list of medications was provided.
The applicant’s application form
The first application forms (accompanied by the support letters above), lodged by the applicant did not contain details of her claims and the Department thus found it to be invalid[4]. The applicant lodged (valid) application forms on 26 August 2014 containing the background information as well as much of the information in identical terms as was contained in the support letters referred to above.
[4] DF99: The Departmental letter however at DF99 appears to be incorrectly dated 30 September 2014; Departmental notes show that the application was found to be invalid, and correspondence was sent to this effect, on 18 August 2014.
The applicant also claimed that she will die due to non-availability of medical treatment, she is a member of a particular social group of needing ongoing medical intervention and daily medication and so it is arguable that she is eligible for protection as a refugee. Without appropriate and specialist medical care her life could be deprived and the right for medical treatment and care in Australia is enhanced when compared to Indian counterparts. She confirms that she can have access to medical treatment and care post-transplant, but says that it is not close to her residence in the [Province]; she said the treatment is also “quite expensive” and she has limited resources so it is out of her independent financial means; her family members don’t have private health insurance. Similar to the social worker she makes reference to research (with no reference to any source) that she claims indicates inadequate or flawed standards in India and extensive waiting lists”.
She repeats the social worker’s statement that 18 months earlier [i.e. about February 2013 as the form was signed in August 2014], her relationship with her husband began to deteriorate with the distance and they made the decision to separate. Prior to the separation her husband had applied for temporary residency and this was the visa she was holding.
In response to the question who would harm her she only referred to her medical condition leading to death without appropriate and specialist medical care and it was stated that when comparing the quality of medical care in Australia and India her life could be deprived in India.
She has not experienced any previous harm in India.
Subsequent correspondence with the Department
There was a request to attend an interview however the agent wrote to the delegate on 29 June 2015 stating that the applicant said that she was too weak to attend an interview, her doctor could attend if required. Further information was provided by the agent including:
A newspaper article reporting that the applicant was suing [Supermarket]. She told the [newspaper] that she is lucky to be alive, her body is strong. Her mother and housemate also fell ill after eating the curry. [Supermarket] is denying the claims, noting that a police investigation found no evidence that the [food was] sold at [Supermarket].
A letter from Dr [B] dated 11 June 2015[5]. He states that information for the report was taken from the applicant and regular reviews. She has strong connections in the Sikh community which has been supporting her and her mother during this stressful time. Her mother is her full-time carer and was in Australia holding a visitor’s visa. Information was provided about her family and circumstances back in India and her surgeries and medical treatment in Australia. It is imperative that she receives excellent post-operative care in order to respect the privilege of organ donation. She needs sanitary conditions and to manage a strict regimen of medication for the rest of her life. There is a possibility of a future liver[6] or [organ] surgery and he thinks it is “arguable that the medical institutions in Australia could better support her through this when compared to counterparts in India”. He states that in India “[she] could have access to medical treatment and care post-transplant”. He said however that the treatment is difficult to access as it is not proximal to her residence, with Delhi being at least eight-and-a-half hours away from the family home. In addition it is also quite expensive and it would be a “prerequisite” that she has private health insurance to access which she says she cannot afford and is outside of her independent financial means and that no other family members in India have private health insurance because it is not affordable. “Research suggests” that government subsidised medical institutions and interventions in India would not be able to cater to the complexity of managing her new liver and the quality of their provision is substandard or flawed with extensive waiting lists. He stated that within this context, it is “arguable” that she would benefit from permanent residency because a return to India could be fatal to her. It was requested that on the basis of her extenuating medical circumstances that she be granted residency in Australia. She “plans to be a contributing member of community and to apply herself to returned employments, study and enjoying the Australian way of life”. [The Tribunal notes that it was not clear who had undertaken the “research” referred to, and that no source or any particular research or studies were cited in this letter other than the applicant].
[5] Although the letter was not signed the Tribunal is prepared to accept it is a letter from Dr [B].
[6] The Tribunal notes that the initial submission from the agent in 2014 suggested that she would need another transplant; however it appeared that immunosuppressants were successfully provided and that the transplant was successful.
The delegate wrote to the agent on 30 June 2015 noting that the applicant’s medical condition may not meet the requirements of complementary protection/Departmental Guidelines given that:
·     If a non-citizen’s life expectancy would be threatened by being removed due to a pre-existing medical condition (terminal or not) this would not amount to arbitrary deprivation of life because deprivation of life due to natural causes is not arbitrary. The absence of medical treatment in a country of return does not generally amount to a violation of Article 7 and will not generally meet the definitions of cruel or inhuman treatment or punishment or degrading treatment or punishment.
·     There are two types of arguments that an exacerbation of medical condition could amount to torture, cruel and inhuman or degrading treatment. The first relates to exacerbation that flows from the return of a person, specifically that the act of returning a person would be stressful or would increase the severity of medical condition. The second is an exacerbation flowing from an inability to access medical treatment in the country of return, which would consequently increase the severity of the person’s condition. However, neither of these two scenarios will generally amount to a breach of article 7 of the ICCPR.
·     It was requested that any response should be provided within 7 days.
It does not appear that any response was provided[7].
[7] The delegate’s decision record does not refer to a response nor is there a response located in the Departmental file.
The delegate’s decision
The delegate said that, having regard to the medical letters, the applicant’s medical condition was accepted.
The delegate considered whether her medical condition of having a new liver means that she is part of a particular social group, needing ongoing medical intervention and daily medication. However, the delegate noted that when considering the refugee criteria there was nothing before the Department indicating that the claims and circumstances have a Refugee Convention nexus: the delegate was not satisfied that any difficulties in India as a result of her medical condition would be for one or more of the five reasons: race, religion, nationality, political opinion or particular social group (considering Applicant S v MIMA). Thus, the delegate did not accept that the applicant is a refugee.
The delegate then considered the complementary protection criteria, and referred to the Complementary Protection Guidelines, where it was noted that the absence or inadequacy of medical treatment in the country of return does not generally amount to a violation of article 7 of the ICCPR and will therefore not generally meet the definitions of cruel or inhuman treatment or punishment or degrading treatment or punishment. While the right to health is protected under article 12 of the ICESCR (International Covenant on Economic, Social Cultural Rights), it is not considered to be a basis for non-refoulement obligation in its own right. It was noted that the Guidelines advise that in order to amount to significant harm, claims related to inadequacy of medical treatment would need to be intended to inflict either pain or suffering or to cause extreme humiliation, but based on the information before the Department there would be no such intention by the authorities for this applicant. The Guidelines make it clear that where a non-citizen’s life expectancy would be threatened by being removed due to a pre-existing medical condition this would not amount to an arbitrary deprivation of life. There is no indication of intent to mistreat in any of the claims made.
It was noted that given the nature of the claims it is understandable that the applicant may wish to stay in Australia but that while the claims have a compassionate nature, a decision maker is obliged to consider the relevant criterion. The delegate considered that the harm claimed is not significant harm.
Non-disclosure certificates
The Departmental file was provided to the Tribunal initially without any non-disclosure certificate. Thereafter the Department received, and forwarded to the “Refugee Review Tribunal” (RRT) to place on the Departmental file, certain information about the applicant accompanied by a s.375A Certificate dated 13 August 2015. Whereas the Certificate was addressed/sent to the RRT, it was stated to be applicable to the “Migration Review Tribunal” (MRT). The certificate stated that the disclosure, other than to the MRT, of certain information was contrary to the public interest because the information was provided as an allegation and the source has an expectation of anonymity. The identity of the source of the allegation should not be disclosed or by extension any information contained within the allegation that would have the potential to identify the source. It was stated that s.375A of the Act applies to the documents/information sent to the MRT and the MRT must do all things necessary to ensure that the document or information is not disclosed to anyone other than the MRT member.
The MRT and RRT were subsumed within the AAT (the current Tribunal) on 1 July 2015. Prior to that time Part 5 of the Migration Act applied to “MRT-reviewable decisions” whereas Part 7 of the Act applied to decisions such as the decision under review (applications for protection visas). From 1 July 2015, and as at the date of the issue of the certificate[8], the Act was amended to provide that Part 5 related to “Part 5-reviewable decisions” which was specifically stated as not including decisions relating to protection visas (per s.336M, 336N, 337 of the Act) whereas Part 7 related to “Part 7-reviewable decisions” which covered decisions relating to protection visas (per s.408-410 of the Act).
[8] The version of the Act applicable for the period 1 July 2015 to 31 August 2015
Section 375A of the Act is found within Part 5 of the Act, not Part 7 of the Act. Thus, section 375A of the Act applies to decisions under Part 5 of the Act. The decision under review however in this case was made under Part 7 of the Act, and thus it would appear that the Certificate cannot be valid. Given that the information was given in confidence, the Tribunal has disclosed the gist of the information to the applicant in accordance with s.424A of the Act, without disclosing information leading to the identification of the informant.
Even if the Tribunal was wrong in this respect, and if the Certificate was valid, the Tribunal would be required to do as it has done, namely to disclose the gist of information the subject of the certificate if it could be considered as the reason or part of the reason for affirming the decision under review (s.424A of the Act). The Tribunal disclosed, as discussed below, information from a Departmental report containing dob-in information/allegations about the applicant’s work, financial situation and her [social media] identity.
Offshore file
The Tribunal had access to the offshore visitor visa application for the applicant and her then husband, which showed that:
·     The applicant’s husband had access to $64,000 (including the costs relating to the applicant of 10,000 AUD); the people who provided access to the funds were his family.
·     He had completed a [qualification] in [year] in India.
·     There was no relevant information about the applicant’s circumstances in India.
The Tribunal

The applicant provided a copy of the delegate’s decision record to the Tribunal with her application for review.
The applicant appeared before the Tribunal on 26 July 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s friend, Mr [A]. Her agent was present. It had been suggested that the Tribunal take evidence from Dr [C] by telephone, however when the Tribunal called the doctor there was only the possibility of leaving a voicemail. The Tribunal left a message for the doctor to call the Tribunal as soon as possible. He did not do so. The Tribunal noted at the end of the hearing the doctor had not called back, and the Tribunal said if there was anything further the applicant wished to produce from the doctor post hearing, she could do so.
The applicant had indicated that she did not need an interpreter however one had been organised by the Tribunal. The applicant said she did not have any objection to the presence of the interpreter and said that she would use the interpreter if she wished. The Tribunal hearing was conducted with a not insignificant amount of assistance from the interpreter in the Punjabi and English languages, at other times the applicant gave evidence in English. The Tribunal was satisfied that the applicant was able to understand the questions and provide evidence and arguments. At the commencement of the hearing the Tribunal said that it was important that she answer the Tribunal’s questions, and she would thereafter have a chance to say anything that had not been covered by the questions. The applicant often did not respond directly to the questions, and the Tribunal had to direct her attention to the question. Sometimes, instead of answering the questions, she would repeat answers and evidence previously given, even though the Tribunal reminded her on numerous occasions that it was taking notes and there was no need for her to repeat herself, and the Tribunal was satisfied that she had understood the question. She would also interrupt the interpreter despite being asked not to, and although the Tribunal said in advance of the witness’s evidence that she should not interrupt the witness, she did so.
The applicant’s evidence included the following:
·     The applicant said that in April 2014 she was sick and had a liver transplant. She stayed in hospital for 4-5 months.
·     While she was in hospital in June 2014 her husband left her. He told her that he could not afford her expenses (for medications and regular check-ups) so they separated.
·     She said that from 2009 until 2014 she and her husband were based in separate cites. He was living in Melbourne where his studies were, but she couldn’t get a job in Melbourne and she was living in [City 1] with her [relatives] (who initially were students and are now permanent residents), who got her a job as a [occupation]. She was a cleaner from 2009 to 2014. She worked for three different corporate companies ([Company Names]) on a continuous basis. She then said that her husband lived with her in [City 1] but would sometimes go to Melbourne for college once a month, or more if he had exams. When asked why he was not more often in Melbourne, given that it was his place of study, she could not explain this.
·     After her liver problems, the Indian community undertook fundraising for her; she received about $30,000 in 2014. She still has about $3000-$4000 left. She has used the money for groceries and sometimes the rent. She has resided in various locations in Sydney but she has not always had to pay rent. Further, her agent did not charge her for her protection visa application.
·     After she was out of hospital, the Sikh temple provided her with a house to live in for six months. Thereafter, from 2015 until January 2018, she went to live with a friend in [City 2] because Sydney is very expensive. When asked why she returned to Sydney she said because her liver function is not so good and she always comes and goes. When the Tribunal asked what she meant she said that she would see an ordinary doctor in [City 2] but there was no liver specialist there, so they would send her to Sydney if there was any problem so she decided to move back to Sydney.
·     About seven months after she was out of hospital she had surgery on her [organ]. She said she was feeling so weak after that ([organ] surgery) and it was hard to get a job when sick and she didn’t have work rights and she couldn’t work.
·     The Tribunal asked whether, since the liver transplant, she had asked for work rights and she initially said that she didn’t ask because she wasn’t feeling well. It was only when the Tribunal repeated its question that she then said that she had applied for work rights in January 2018. The Tribunal noted that this was the time that she left [City 2] to go back to Sydney in January 2018 due to her liver problems; if she was not well at the time it did not understand why she asked for work rights. She said that she did this because she was studying and she had to do placements for her course and she could not do that without work rights. The Tribunal noted that although she said she said she was not going well, she was still able to study and do her placements and she agreed; she responded that she “has to do something”.
·     When asked if she is currently working she said “not yet”, she has just finished her [qualification] after six months of study; she has applied for a job and she hopes to get it.
·     Her current medical situation is that she takes her medication twice per day. Once per month she sees a GP in a medical centre where she gets her blood tests done and she talks with him. She sees the liver specialist once every two months. She said she was in hospital in 2017 as she had a pipe blocked and there was a [medical procedure] which was [repeated] every three months; it was [finalised] in January 2018. She said she has discharge letters relating to this. At the end of the hearing the applicant produced more medical documents of a historical nature, which the Tribunal has considered. These are dated between 17 April 2015 and 8 May 2017 and they show that she was admitted, treated and then discharged from a hospital in [City 2] on several occasions and most recently had issues after her [medical procedure] in 2017. On one occasion the [City 2] doctor called and discussed with her liver transplant specialist in Sydney. As at 8 May 2017 it was noted that the liver was considered normal in size, as are the kidneys and spleen, and previous difficulties have been resolved.
·     She said however that in 2018 she felt pain and tired and couldn’t digest food like before. She is currently iron deficient and will have an endoscopy in August 2018 to ascertain why she is iron deficient.
·     Her mother has been here looking after her. The Tribunal noted that she also has relatives in Australia and she agreed but said that it is not the same as her mother. Her [sibling] is three years younger than her and he has finished school. He is looking for a job. When asked who is supporting him, she said that he does some farming on agricultural land. When asked who has been paying for his schooling and living expenses she said that they have a buffalo and they sell milk. The family has always survived by selling buffalo milk. She said that she doesn’t have a good relationship with her [sibling], although she is in contact with him by phone.
·     Her father passed away in [year]. He left them a house (without encumbrance) and it is still debt free. The Tribunal asked about the dowry agreement; she said that the agreement was that she would come with him to Australia and she paid nothing for this. However when she was in Australia and she was working here she helped pay the school fees. She worked full time [occupation].
The Tribunal noted that there was adverse information pursuant to s.424AA of the Act that it was required to put to her. She responded to that information at the hearing. The Tribunal allowed further time as discussed below for the applicant to provide further submissions and evidence.
At the end of the hearing the agent made submissions which are discussed further below. As the submissions appeared to involve the agent giving evidence, the Tribunal asked him to confine himself to submissions on the evidence but also allowed him further time to produce any evidence.
The Tribunal has recently listened to a complete recording of the hearing prior to finalising this decision. The Tribunal again apologises for the delay in making the decision, and notes that none of its concerns relate to any aspects of the applicant’s demeanour, which are not relevant to the Tribunal’s decision. The Tribunal maintains it concerns with the applicant’s avoidance of and failure to answer questions and her credibility as discussed below.
Post hearing
After the hearing, on 27 July 2018, the Tribunal forwarded a request for information to the applicant. It was noted that at the hearing, her financial position had been discussed. She had said that her situation had been reported in the media in Australia and India (and the Tribunal noted that she had provided to the Department a copy of some media coverage which contained a reference to the applicant taking legal proceedings against [Supermarket]). She was asked whether she had made any demands for compensation from any person or entity, and if so the results of such demands, and if she had not made demands, the reasons why she had not made any demands for compensation.
The Tribunal did not receive any response to this (although on 2 August 2018 an email was sent by the agent to the Tribunal sending website links to “health services conditions in India”) and stating that the applicant was stressed because she fears death if she returns to India. The Tribunal wrote to the applicant by way of letter dated 13 June 2019 and apologised for the delay. It was noted that no response was provided to its letter dated 27 July 2018 and a further request for a response was made. It was also noted that since the hearing the new DFAT report on India (17 October 2018) was released and a copy was enclosed. The Tribunal indicated that the information contained therein is similar to that discussed at hearing (including more recent information as to the government’s efforts to improve healthcare). It was also noted that in the agent’s letter of 2 August 2018 there was a reference to the applicant having provided a medical certificate for depression but that this had not actually been provided to the Tribunal. The Tribunal noted that it would take into account any information it receives before it makes a decision.
The agent responded by stating that he would be away and seeking an extension of time to respond; this was granted. The applicant responded on 25 June 2019 and the Tribunal stated that it would make a decision on or after 30 June 2019.
Further relevant evidence and information is set out below.
CONSIDERATION OF CLAIMS AND EVIDENCE, FINDINGS AND REASONS
The issue in this case is whether or not the applicant meets the definition of refugee or is entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Credibility concerns
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well‑founded” or that it is for the reason claimed. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to “significant harm”. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.
Pursuant to s.5AAA of the Act it is the responsibility of the applicant to specify all particulars of his or her claim to be a person to whom Australia has protection obligations and to provide sufficient evidence to establish that claim. The Tribunal does not have any responsibility or obligation to specify, or assist the applicant in specifying, any particulars of his or her claims. Nor does the Tribunal have any responsibility or obligation to establish, or assist the applicant in establishing, his or her claims.
Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision‑maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo & Anor (1997) 191 CLR 559 at [596]; Nagalingam v MILGEA (1992) 38 FCR 191; Prasad v MIEA (1985) 6 FCR 155 at [169–70]).
The Tribunal was concerned that the applicant had not been honest or forthcoming about her relevant circumstances, and that she was evasive and sometimes exaggerated when giving her evidence. The concerns are set out below.
Her husband left her because of her liver transplant and expenses: As noted above the applicant told the Tribunal that her husband had left her when she was in hospital as she claimed he said that he could not afford her expenses. However, other evidence contradicted this claim. When the Tribunal asked if she had ever separated from him before April 2014, she said no. The Tribunal asked why the Department would have recorded that they separated on 5 September 2012. She said because he was living in Melbourne and the applicant was in [City 1] and he had a girlfriend (whom he had known in India). She then said that she didn’t tell the Department that they separated on that date; she doesn’t know if he did. The Tribunal does not have the information as to who informed the Department of this and thus it does not draw any adverse inferences from this in relation to the applicant. However, as also noted above, her social worker’s support letter states that in [about February 2013] the relationship began to deteriorate due to distance, and this was well before her liver transplant in April 2014. The Tribunal suggested that if her husband had left her while she was hospitalised because of her condition (and future expenses), the social worker’s (detailed) letter would have mentioned this. In response the applicant said she doesn’t know why and she was sick and couldn’t talk much and whatever the social worker asked her she told her. While accepting that the applicant had been ill, given the level of detail about the applicant and her background (which the letter states was sourced from the applicant) the Tribunal is not prepared to accept that the social worker would not have included this in the letter if the applicant had told her this.
The Tribunal’s concerns in this regard are heightened because as noted above, the applicant also provided an (amended) application form which contained a repeat of much of the information already provided in the support letter; she swore on 23 August 2014 a statutory declaration confirming that the information she gave was true, and which stated that “Eighteen months ago our relationship began to deteriorate with the distance and we have made a decision to separate. Prior to the separation, my husband applied for temporary residency...” The written evidence specifically states that the relationship between the applicant and her husband deteriorated because they lived apart and they had made a joint decision to separate; the Tribunal considers that if her husband left her in the circumstances she claimed at hearing, she would have mentioned this to the social worker (and in her own application form).
The Tribunal was concerned that the applicant’s claim about her husband leaving her because of her medical condition (which was inconsistent with the earlier reason given for the separation both to the social worker and to the Department) was an attempt to elicit sympathy from the Tribunal, and while the Tribunal understands that she has been through a difficult time, it considers that this indicates that the applicant is prepared to tell untruths to the Tribunal.
No [social media] account in a different identity and no work after the liver transplant: The Tribunal was concerned that the applicant was prepared to tell the Tribunal untruths and then change this evidence only after contrary evidence was put to her. On the Departmental file, there was a dob-in letter received by the Department on 8 November 2015 indicating that the applicant had received a “huge amount of money from Sikh community” and that she was working, illegally (with no work rights) for cash in a restaurant. It also gave her [social media] ID name as [Name]. Prior to the hearing the Tribunal accessed the publicly available [social media] account in the name of [Name], which showed that the most recent profile picture (of the applicant) had been updated 11 hours ago[9] [most of the account was not open to the public so could not be accessed].
[9] See Tribunal file for printout
In her evidence, however, the applicant told the Tribunal that she had never had a [social media] account in any name apart from her own name, and she was sure about this. She said the only account she had had was in [her name]. She claimed she had forgotten her password to that account and when asked when she last used [social media] she was silent and then she said it was 2017 (one-and-a half years ago). She also told the Tribunal that she had not worked after the liver transplant.
At the hearing the Tribunal put to the applicant pursuant to s.424AA of the Act the gist of the information from the dob-in letter including that it had accessed the [social media] account in that name which showed that that account (with the applicant’s updated profile picture) had been accessed shortly before the hearing. The Tribunal offered to show her the photo (of herself) on the [social media] account in this name, and she said she did not need to see it.
In response, the applicant admitted that she had the account in the name of [Name] in 2010; she said that afterward she didn’t use that account and she got sick and she forgot the password “earlier”. After that she opened a new account in her own name however she has also forgotten the password of that account and she got sick and she opened another account[user name] and she stopped using it. She said maybe it is a fake account, and that she did not work in the restaurant and in 2015 she had surgery so she could not have worked. She then changed her evidence and said it is a fake account, someone else could have made it and she never used it again.
The Tribunal is not prepared to accept her last claim that it is a fake account, giving her earlier evidence (once it was put to her that this account existed and her profile photo had been recently updated) that she did open the account in this name. The Tribunal considers that the evidence supports that the applicant did have a [social media] account in a different name and that she updated her profile photo shortly before the hearing, and that she was untruthful about this when giving her evidence to the Tribunal. The Tribunal does not find her explanations to be persuasive.
Thus, the Tribunal considers that the dob-in letter was correct when it stated that she had received a lot of money from the Sikh community (consistent with what the applicant had said); it was also correct when it stated that she had a [social media] account in a false name (which she had denied until evidence to the contrary was presented to her); and its last allegation was that the applicant had been working for cash (which she had claimed not to have done). It appeared to the Tribunal that the applicant may have been working for cash and was thus not honest with her financial situation and the funds available to her. The Tribunal has taken into account the applicant’s explanations concerning the allegation that she had been working and not declaring this; in this regard; as noted above initially she said that she had surgery in 2015 so she could not have worked. This evidence changed when the Tribunal asked her to specify when she had surgery in 2015. She then said that it was actually in October 2014 that she had surgery, and earlier in 2014 [April] she had had the transplant, but it took about a year to recover and “how could she have worked?” The Tribunal is not prepared to accept the applicant’s assertions that she has not been working since her liver transplant. While the Tribunal accepts that she has had numerous surgeries post- transplant (she said [list of surgeries]), the medical evidence has not suggested that she had been unable to work, or should not work, at any particular time in the years since her liver transplant, and the August 2014 letter from the social worker referred to the applicant’s plan, four months after her transplant, to “apply herself to returned employment, study and enjoying the Australian way of life”. The Tribunal considers that the evidence indicates that the applicant is prepared to tell untruths to the Tribunal, and it is not satisfied that she has been truthful about her financial and work situation since the transplant. It considers that it is likely that she has been working for cash and not declaring this, and that this will assist her financial situation upon return to India.

No jobs in India: The Tribunal was concerned that the applicant was prepared to make categorical statements about the workforce which were inconsistent with the available country information. The Tribunal noted that the applicant gave evidence that she has now completed her qualifications as a [occupation]; it put to the applicant that if she went back to India, she could obtain work there using her qualifications (noting she was seeking to start work in Australia, so there was no indication that as a result of her condition, she could not work). The applicant told the Tribunal however that there were (categorically) “no jobs in India”. The Tribunal asked for clarification and she confirmed that it was her evidence that there were no jobs in India. The Tribunal put to her that it was difficult to accept that no one had a job in India and that the country information does not support this[10]. She said that she is from India and she knows these things, and she said this is why everyone is leaving the country, going to Canada and America. The Tribunal is not prepared to accept that no one has jobs in India, and it notes that the country information (DFAT report) does not support this assertion. While the Tribunal accepts that it may be difficult to get a job, the applicant is educated, she has a certificate in [occupation] and she has experience working in Australia. Further, it was not the applicant’s claim that it would be difficult to get a job; she said that no jobs actually exist. The Tribunal considers that this is a further example of the applicant being prepared to exaggerate the adverse circumstances she faces and has faced.
[10] The DFAT Thematic report on the Punjab from 7 December 2016 stated employment and education opportunities as the overwhelming motivation for migration from Punjab to other parts of India and other countries in the world, including Australia. It also noted that Punjab is a relatively prosperous state by Indian standards, with annual per capita income of around USD 1,700 in 2014–15, compared with USD 1,290 for the country as a whole. Further, according to the Government of India’s Economic Survey for 2013–14 (the latest available state-based data), Punjab has the fifth-highest Human Development Index (HDI) in India. Only 8.3 per cent of Punjab’s population live below the national poverty line, compared with the national poverty rate of 21.9 per cent. The report did state that women are underrepresented in the Punjab workforce while referring to the caste system (not said by the applicant to be a relevant factor in her case) and socio-economic factors (not said by the applicant to be a relevant factor in her case, other than economic factors which the Tribunal has not accepted) and gender discrimination. The 15 July 2015 DFAT report referred to at the hearing states that the size of India’s informal sector makes the formal unemployment rate difficult to measure accurately.
Based on official Central Government figures, the International Labor Organization (ILO) estimates that 82 per cent of workers were employed in the informal sector in 2011–12. Reflecting the change in the broader structure of India’s industry, the share of those employed in agriculture fell from 64.8 per cent in 1993–94 to 48.9 per cent in 2011–12. Employment in services increased from 19.7 per cent to 26.8 per cent, and employment in industry increased from 15.6 per cent to 24.3 per cent in the same period. According to the Central Government’s Economic Survey, more than 12 million school-leavers enter India’s labour market each year. The most recent DFAT report states that according to the International Labour Organisation, approximately 66 per cent of the population is of legal working age (15 to 64 years). The labour force participation rate was 53.8 per cent as at 2017. The participation rate for men is more than 50 percentage points higher than for women, whose participation rate is approximately 27 per cent and falling. The total unemployment rate is 3.4 per cent, and the youth unemployment rate is 9.5 per cent for men and women. Much of India’s labour market is not organised and these figures may not accurately reflect the rates of unemployment. The vast majority of working people are employed in the informal sector. Individuals in this sector experience low job and income security, as well as lower coverage by social protection systems and employment regulation. Over time, workers have been shifting out of the agriculture sector and into the services and manufacturing sectors.
Sikh values: The Tribunal was concerned that the applicant was prepared to deny the existence of certain Sikh values (which could make her situation in India better if needed) until evidence of this was put to her, at which time she changed her evidence. The Tribunal put to the applicant that it would appear that the Sikh community would assist her in India if needed. In this regard the Tribunal asked why the Sikh community in Australia had assisted her and she said that they were in a difficult situation and her mother was crying to them and so the temples got involved and a lot of money was raised to help the applicant. The Tribunal suggested that if she went back to India, they would help her and take care of her if she was not able to cover her expenses. She said that the Sikh community will help “a bit” but it can’t continue
The Tribunal asked the applicant whether there was any rule or custom or value within the Sikh religion that provides that Sikh people should assist those in need or those less fortunate and she said no. The Tribunal repeated the question and she said there was nothing specific to Sikhs or the Sikh religion, it was just humanity. There is no part of Sikh values which state that Sikhs should help people who are less fortunate.
However, the Tribunal later read to the applicant extracts of information relating to Sikh values, namely that there are Sikh values which indicate that Sikhs should help others who are less fortunate and that they should share their wealth with others, and that Sikhs are expected to contribute at least 10% of their wealth to needy people or a worthy cause[11]. It was only then that the applicant admitted to the existence of these values. She did not, in her explanation, say that she had not known about these values; the Tribunal put its concern that she was prepared to deny the availability of such help based on Sikh values until the Tribunal put to her evidence of the existence of such values; she then changed her evidence to accept that these values existed.
[11] It is the duty of every Sikh to practice Naam Simran (meditation on God’s name) daily and engage in Seva (selfless service) whenever there is a possibility- in Gurdwara; in community centre; old people’s homes; care centres; major world disasters, etc. Guru Nanak formalised these three aspects of Sikhism: Naam Japna – to engage in a daily practice of meditation and Nitnem by reciting and chanting of God’s Name. Kirat Karni – to live honestly and earn by one’s physical and mental effort while accepting God’s gifts and blessings.
The applicant gave various explanations for her change in evidence, including that she hadn’t understood the question, however the Tribunal is not prepared to accept this as it was put to her several times and she was asked if she was sure that there was no such value and she agreed. She also said that, while there is such a value, that they won’t help her for the rest of her life because there are a lot of needy people in India and they can’t help everyone. The Tribunal is not satisfied that this can explain why the applicant denied in her evidence to the Tribunal that such a value exists in the Sikh community. The Tribunal considers that this is another instance of the applicant being prepared to say anything to stay in Australia including exaggerate and minimise the support available to her in India (as discussed further in this decision). The Tribunal considers, based on the country information and the applicant’s concession that there is such a value in Sikh society, that if the applicant does need assistance when she is back in India, Sikh society will, as they did in Australia, rally around to assist the applicant (the applicant indicated that she had been in the news in Australia which had assisted; she also admitted that she had been in the news in India). The Tribunal is not however satisfied on the evidence before it that there is a real chance or real risk that she will need this assistance, given her own resourcefulness, as well as the presence of her mother and her [sibling]. The Tribunal is not prepared to accept her assertion that she does not get on well with her [sibling].
Above concerns: The above evidence indicates to the Tribunal that the applicant is not reliable when making claims. While it may be that this is because she has had a difficult life experience and that she is motivated to stay in Australia, the Tribunal does not accept that these are satisfactory reasons for telling the Tribunal untruths.
The Tribunal has set out below all of the reasons the applicant said as to why she could not return to India (some of which are considered in more detail later). It notes however that the applicant’s tendency (to exaggerate concerns and minimise available support in India) continued when the Tribunal asked to tell it all the reasons why she could not return to India, and including when she was giving evidence about medical matters and what awaits her in India. For example, the evidence below suggests that while she is prepared to assert that she will face serious consequences if she returns, the applicant (who is educated and resourceful and has the services of an agent) had not actually undertaken anything other than cursory research as to what was available to assist her if she went back to India. Further, at times her evidence was also evasive, and although the Tribunal provided country information at hearing about the availability and low cost treatment available to her in Delhi, she rejected this without offering cogent researched reasons to the contrary. At other times her evidence did not appear to be satisfactory to support her claims.
The reasons why the applicant said at hearing that she cannot go back to India
The applicant’s reasons for not wanting to return to India are set out below. As noted above, some of these continue to evidence the applicant’s tendency to exaggerate concerns and minimise available support in India; discussions of her evidence and the credibility of her concerns are set out here; the findings on these matters are referred to later in this decision.
There would be no one to help her in India: The Tribunal asked the reason why she cannot go back and get treatment and she initially responded by saying that there would be no one to look after her. The Tribunal noted that her mother was here, and as she was looking after her here, she would also go back and look after her in India. The applicant initially said no to this but when it was again put by the Tribunal she then agreed that her mother would be able to look after her. The Tribunal was concerned that the applicant was prepared to say that no one would be available to care for her when it would seem that she was aware that her mother would be there for her, like she is in Australia.
The expenses relating to her liver transplant and thereafter, namely the medication and consultations and complications, and attending hospital: The applicant said that she does not want to go back because she will die and her expenses will be too great. The Tribunal asked what her expenses she will incur in India and the cost. She said all her medication, liver treatment, everything. The Tribunal again asked her to explain the costs, noting that she had not responded. She then said that the medications for liver rejection are 20,000 rupees per month. Her evidence was then changing and she said medications could not be purchased. The Tribunal noted that it was her responsibility to present her case to the Tribunal but her evidence was not very precise and it was changing. It asked for her to explain how she came to her conclusions.
She said that four years ago when she had the liver transplant she checked it on google and she found that her medications were not available. She then called a number in India and found out that they do treat this in Delhi. The Tribunal asked her who she telephoned and she said she can’t recall. The Tribunal noted that it was difficult to accept such evidence if she could not tell the Tribunal who she spoke to. She responded that she has memory problems since the transplant [no evidence of this was provided] and it was four years ago so she can’t recall. She said she only made enquiries four years ago. She said that when she had a consultation with her doctor she was told about this.
The Tribunal asked how she knows that the medications are not available in Punjab. She said her doctor in Australia told her this. The Tribunal noted there was not a suggestion that he was an expert on availability of medications in India. She said he told her in her last consultation that the only possible treatment is in Delhi so she searched and found that the medicines are available. The Tribunal asked her for the source of the information and she said that there is a liver hospital in Delhi but she can’t recall the name. She then said that it was four years ago that she searched for the medications. The Tribunal noted that her evidence about when she searched for the availability of her medications was changing (four years ago; then after her most recent consultation; then again only four years ago). The Tribunal put to her that it seemed that she only searched for details of her medications four years ago and other than that she was relying upon what other people in Australia told her. She said that her witness has gone through the process and the doctor told him the only reason he is surviving is because he is in Australia. She said that the doctor said that the medicines were available for about that price.
The Tribunal asked if she had been told how much consultations cost at this hospital and she said no. The Tribunal asked why she had not been interested in finding out about how much consultations cost in Delhi. She said she didn’t search that. The Tribunal said that country information showed that the Institute of Liver and Biliary Sciences Institute in Delhi is said to be the only centre under the Delhi government to have an active liver transplant program, it has an outpatient department which can be paid or for people who can’t afford it they have an outpatient clinic twice per week at a nominal fee of 20 rupees. In response the applicant said no. The Tribunal asked how she could respond by saying “no” if she has not heard of this institute or researched it herself. She said in India the treatment is not like here. The Tribunal noted that it was not discussing quality, it was currently discussing affordability. The applicant then admitted that although what is stated on the website may be true, and that treatment may be offered in such circumstances to people who can’t afford it, she then repeated that she doesn’t know about the quality. The Tribunal noted that the treatment, according to the website, is very good (it was stated that they have a very capable team that treats and supports adult and paediatric patients, pre-and post-transplant and end-stage liver disease, and people come from all parts of the country)[12]. The applicant claimed that she wouldn’t trust the treatment there. Later, the Tribunal provided the website to the agent and noted it was the Institute of Liver and Biliary Sciences, noting that this was not the only hospital treatment that is available in India.
[12] Country information is referred to in Annexure B
The Tribunal has considered the applicant’s assertion that the cost of medication is 20,000 rupees per month but it is not satisfied that her assertions and changing evidence can be relied upon. The Tribunal notes that there is post- transplant treatment available in India and it is not prepared to accept the assertions made by or on behalf of the applicant that the medication to support her liver transplant is out of her reach. The Tribunal has also considered the country information indicating that the Delhi outpatient fees are a nominal sum of 20 rupees, that the applicant herself did no research as to the cost of consultations in India, and that there is treatment available in Delhi for post liver transplant. The Tribunal is not prepared to accept on the evidence before it that the quality of the treatment she can receive at this institute in Delhi nor that the price of medications or consultations nor that the waiting lists are such that she faces a real chance of serious harm or a real risk of significant harm in the reasonably foreseeable future. The Tribunal considers that the applicant will be able to access an adequate quality of medical treatment in Delhi, and for that reason she does not face a real chance of serious harm/real risk of significant harm on this basis.
The pollution and weather in India: The applicant referred to the pollution and weather in India. The Tribunal noted that pollution/weather was not a concern raised by the doctors in their letters. She said that pollution is not good there and if the weather is not good she will die. The Tribunal asked if she was saying that she will die as a result of the weather and if that was the case it would think that the doctors would have mentioned this in their correspondence. Again she did not respond to the concern raised, but instead said that there would be a problem with the food. The Tribunal noted that she was again moving from one point to another and that it was just trying to understand, one at a time, the reasons why she would have problems if she returned. The Tribunal asked her to explain why and she said “How can I say it will be good? I have not been to India since the transplant”. She said in India there are lots of cars and it causes smoke in the air and this will cause problems. The Tribunal put to the applicant that this was not mentioned by her doctors and it appears speculative. Her explanation was that she has previously lived there and knows that it is polluted. The Tribunal notes that the doctor’s letters did not refer to pollution and weather, although it was stated that she should reside in sanitary conditions. This is discussed further below (in the context of post hearing evidence on pollution).
The food in India: The applicant said that the food is not good in India like in Australia. When the Tribunal asked her to explain what she meant, she said that the food is not hygienic. The Tribunal noted that they had a farm and it asked why she couldn’t prepare food hygienically. She did not offer a satisfactory explanation other than to say that it is not easy over there just because you have a farm to grow your own food. While the Tribunal accepts that one of the earlier discharge notes referred to the applicant having a difficulty with food, the doctor’s letter did not refer to any particular food she should or should not avoid. The Tribunal is not prepared to accept that the applicant has a genuine concern that she faces a real chance of serious harm or a real risk of significant harm from the food she would eat in India.
The distance from her home to Delhi: The applicant said that it takes eight to nine hours to drive to Delhi and she will not survive that distance. The Tribunal put to the applicant that if she believed that she would die without proximity to a liver specialist it did not understand why she would have moved and lived for years in [City 2], a place without a liver specialist. She said that she had had [a medical procedure] on several occasions with complicating circumstances and difficulties. The Tribunal noted that even while those complications were occurring she was still living in [City 2] and travelling to her liver specialist in Sydney (she had only moved back to Sydney in January 2018), after having already lived in a different city to her liver specialist for numerous years shortly after her liver transplant and release from hospital. The Tribunal put to her that this indicates that she was prepared to live in a city without a liver specialist. The applicant then said it was only a couple of minutes’ drive (compared to Delhi). The Tribunal put to her that it was not a couple of minutes’ drive between Sydney and [City 2]. She then changed her evidence and said that she now lives a couple of minutes’ drive away. The Tribunal noted that they had been discussing when she lived in a city without a liver specialist, [City 2], a significant distance from Sydney, and that she chose to live there even when she had the money (given to her from the Sikh community) which would have enabled her to live in Sydney. In response the applicant said that she was not aware when she moved to [City 2] that there was not a liver specialist. The Tribunal does not find that persuasive, and considers that if, six months after being released from hospital and having lived in proximity to a liver specialist, she decided to move to a new location several hours away, she would have known or made enquiries as to whether it was safe and appropriate for her to do so. The Tribunal also put to her that she remained there for a number of years even though there was not a liver specialist there. The Tribunal noted that while she was in Australia she had chosen to live a significant distance away from her liver specialist, and although Delhi is further away (eight-and-a half to nine hours), she could live in her area with her mother and have access to a liver specialist in Delhi. The Tribunal put to the applicant that this was possible and similar to what she did when she moved away from her liver specialist to [City 2]. The applicant’s response was that she would travel down to Sydney (and was on occasion taken by ambulance to Sydney).

The Tribunal considers that while the applicant may wish to live closer to a liver transplant specialist hospital in India, she was prepared to live a significant distance away from a liver specialist at a much earlier post-transplant stage, so that she could save money. The Tribunal is not satisfied that this has been or is a significant concern for the applicant. The Tribunal is also not satisfied that the reason the applicant moved back to Sydney was due to her medical condition. The Tribunal notes the applicant’s evidence was that she “had to do something” and that when she had moved to Sydney she had started her course. The Tribunal considers it open to conclude that her decision to move to Sydney was because of her studies and desire to work and not because of her medical condition, noting that most of the discharge letters she provided were from [Hospital] in [City 2]; if she considered that she needed to be close to her liver specialist due to her condition, she could have moved back to Sydney much earlier.
In this regard, the Tribunal also did not find the applicant’s evidence to be satisfactory when it discussed relocation to Delhi with her. The Tribunal put to the applicant that if she went back, she and her mother and [sibling] could move closer to Delhi if she wished. The applicant responded that Delhi is too expensive. The Tribunal put to her that they did not have to live in the centre of Delhi, they could live on the outskirts. She responded that this is too expensive, she doesn’t have a father and her mother struggled financially. The Tribunal put to the applicant that Delhi does not only have people who are well-off, there are all kinds of people who live there[13]. She responded that most people have parents who would have purchased a house for them, but she doesn’t have this and they can’t afford to live in Delhi. The Tribunal put that they could sell the house they have and move to Delhi; she said they would only get $4000-$5000 for it and that they can’t afford to buy a house in Delhi for this. The Tribunal has found that the applicant is prepared to exaggerate concerns if she moves back to India; it is not prepared to accept her assertions (as the only evidence) that the majority of people who reside in Delhi are those who have had a house purchased for them by their parents; nor is it prepared to accept the assertion as to the amount of the sale proceeds for the family home (nor that this would not assist the applicant and her family to reside in Delhi).
[13] Both the DFAT report applicable at the time of hearing and currently state DFAT’s assessment that there are millions of people who internally relocate in India, and that there are a wide variety of viable options for relocation. There was no country information provided by the applicant that only
She said that her liver could be rejected. The Tribunal put to her that it had already noted that there was the specialist hospital in Delhi which deals with transplants and post-transplant care, complications, intensive care services, critical cares, a specialist ICU, they have all of these services. In response she said that she doesn’t trust them because she has had a hard life here after her liver transplant. The Tribunal put to her that this concern seemed to be the same as she raised when discussing availability of treatment in the second point above. She said that she doesn’t trust the doctors in India because everyone is dying and the doctors are greedy. She said that if you can pay the doctors it will be ok. The Tribunal put to her that there is no country evidence before it to support her assertions that everyone is dying and doctors are greedy and that she can’t get treatment over there. The applicant said this is what she understands of her country. The Tribunal put to her that these are her assertions but she does not have country information to support those assertions and the Tribunal had already raised with her country information to the contrary, namely that she can obtain treatment. She responded that if the Tribunal searches on the internet it would see that everyone is dying and doctors are greedy. The Tribunal noted that it had already explained to her that it is her responsibility to prove her case and to provide evidence to the Tribunal. She did not address this, she said instead that she got sick when she came to Australia. The Tribunal was concerned that the applicant was prepared to make adverse assertions about conditions in India without giving any support for those assertions. The Tribunal considers that with this, and other assertions that she has made about India, if she genuinely believed that she would face harm due to conditions in India, she would have provided research and more information on the conditions in India for her which could lead to her facing a real chance of serious harm or a real risk of significant harm. The Tribunal does not find the assertion that she will not be able to access treatment in India if, some five years or more after her liver transplant, her liver was rejected, to be persuasive.
Summary as to credibility concerns: While the Tribunal is sympathetic to the applicant’s plight and that she may have a general reluctance to leave Australia, where she has to date received her post-transplant care, the Tribunal is not satisfied that the applicant herself believes that she faces a real chance of serious harm or a real risk of significant harm in her home country. The Tribunal considers that the applicant is however prepared to make assertions/exaggerations in order to achieve her visa outcome.
Other matters
The issue of compensation and the cause of her illness leading to her liver transplant and current circumstances:
Also provided with the June 2019 submissions was a letter which had been sent from the solicitors engaged by the applicant in relation to possible compensation, to the applicant, dated 3 September 2015 enclosing an advice from Counsel. Counsel had met with a [food] specialist who considered the [food] found by the police in a plastic bag in a rubbish bin at the house and advised that if the [food] had been store-bought then [it] would have reached a far more advanced stage of dehydration and decay than shown in the photographs; the dark matter in the photographs is indicative of dirt (ie having been picked in the wild) as opposed to the remnants of [food] decay; and if the bag had been purchased containing multiple [poisonous food] then statistically it is likely that there would have been multiple [poisonous food] at the store and other people would likely have become sick; however no people outside of her household became sick. The prospect of a rogue [poisonous food] in the box of [Supermarket] [food] can be discounted, especially given [a special requirement for this food]. The expert’s opinion is that the [food was sourced] in the wild, although it is not noted by whom (and it is noted that the applicant is adamant that the [food was] store-bought). The barrister’s opinion is that the [food was] either [sourced] in the wild by someone and placed in the fridge or the applicant had been a victim of a monstrous conspiracy whereby the [food] the police found in the bin (showing dirt) had been placed there. The prospect of proving this however the barrister considered was nil. He concluded that there were no reasonable prospects of success and that it was unlikely that a judge would find they were purchased at [Supermarket] or that [Supermarket] knew of or should have been alive to the prospects of contamination.
When asked if there was anything else she had not told the Tribunal, she said that she wants to live here because this is where she got sick. Further, she cannot even marry anyone in Australia because she is sick. The Tribunal said to the applicant that just because she got sick in Australia, this does not mean that she is entitled to stay in Australia as a refugee or pursuant to complementary protection. The Tribunal said it understands her concerns but that its role is to consider the specific relevant criteria.
Insofar as the applicant implied that she became sick in Australia and that this is a reason why she should stay here, the Tribunal does not consider that this is a matter which is covered by the definitions of refugee or complementary protection. The applicant’s legal team indicated that [Supermarket] was not responsible and that the [food] ingested had been [sourced] in the wild; if this was the case, it is not known who [sourced] the [food] and the Tribunal has not made any finding in this respect because it is not relevant to the issues before it, and there is no evidence suggesting that the applicant has commenced proceedings against anyone. The Tribunal is to consider the circumstances for the applicant upon return, not whether she (or some other entity) inadvertently contributed to those circumstances. To put it another way, even if the applicant had ingested [food] from the wild, that would not have changed a decision in her favour to one against her. In the circumstances however, the Tribunal has not however been able to make a decision in her favour.
Insofar as the applicant has suggested that she can’t even marry anyone here in order to stay in Australia, because she is sick, the Tribunal notes her suggestion that she appears prepared to marry in order to obtain a positive visa outcome. The Tribunal considers that her evidence generally has suggested that she is prepared to do or say whatever she considers is necessary in order to remain in Australia. If she is suggesting that she will not be able to marry in Australia because she has had a liver transplant, the Tribunal notes that it has not accepted her assertion (which was contrary to the letter from her social worker and her application form) that her husband left her because she was ill (noting the evidence was that they had problems well before that) nor is there evidence supporting that a marriage could not occur in Australia because she is a person who has had a liver transplant and post-transplant procedures. Although she was referring to Australia, the Tribunal has considered whether her evidence could possibly be construed as an implied claim that she cannot marry in India because she is a person who has had a liver transplant (and has future expenses); the Tribunal does not accept that there is evidence to suggest that the applicant would face stigma when considering remarriage on the basis of her having had a liver transplant and having future expenses to the extent (or at all) that this would lead to a real chance of serious harm or a real risk of significant harm.
The applicant’s mental health
While the Tribunal accepts that the applicant wishes to stay in Australia, and considers that she should be able to stay in Australia because she ingested poisoned [food] in Australia, and it accepts that she is distressed at the idea of having to leave Australia (and that she is depressed as discussed below), it does not accept that this can explain the difficulties with her evidence.
Late assertion as to discrimination
The Tribunal spent a significant amount of time at the hearing seeking to ascertain all of the reasons the applicant did not want to return home; her manner of giving evidence (avoiding the question, repeating other evidence instead of answering specific questions put to her) did not assist. Finally however the Tribunal confirmed with the applicant the reasons listed above, and she then confirmed to the Tribunal that there was no other reason why she could not return home, nothing else that she would suffer if she returned.
However, at the end of the hearing, the agent made a claim on her behalf which the applicant herself had not made. He said that there is favouritism for the people who want the service so that if there are 200 people waiting for hospital services those who receive priority are those people who are supported by politicians and bureaucrats. The Tribunal again noted that the agent appeared to be giving evidence (or submissions not based on evidence) and that there was no evidence before the Tribunal of this; this was a new claim that had not been made by the applicant and was only being made at the end of the hearing. The agent said he could produce newspaper articles about this [this did not occur although extra time was given after the hearing]. The Tribunal noted that he was aware that this matter was listed for hearing yet he had not provided the information before the hearing. His response was to the effect that he was not aware that this information was unknown and he repeated that common people do not receive the same treatment as VIPs. The Tribunal noted that he was again giving oral evidence (without information in support) which is not the role of the agent. He said he has been to the hospitals over there. The Tribunal repeated that it is not the role of an agent to give evidence. He said he understood. The Tribunal said that it would allow him further time to produce any documentary evidence in support.
After the hearing the agent produced some country information however it did not support this assertion.
The Tribunal notes that the applicant was aware, from the date of the delegate’s decision record which she provided to the Tribunal that a claim to be a refugee required persecution with a “persecutor’s reason for inflicting the harm feared must be based upon discriminating against a particular race, religion, nationality, membership of a particular social group or political opinion” and that the delegate noted that the Convention grounds are exhaustive, so that if a person claims to fear harm for a different reason they cannot be considered to be a refugee[14]. The agent had been asked to provide a written submission setting out all claims made and maintained by the applicant (with a signed declaration confirming that this represented all of the claims made by her) one week prior to the hearing, however this was not done. Further, the applicant was requested to provide all documents upon which she sought to rely one week prior to the hearing and no documentation was provided about or in support of this claim to the Tribunal. The Tribunal was concerned at this very late claim, made at the end of the hearing, and considered that if it was genuinely held, the applicant would have made this claim much earlier. Further, when the Tribunal later asked the applicant if there was anything further she wished to say, she did not herself mention a claim that because she was not a politician or a VIP she would be discriminated against in terms of receiving treatment. The Tribunal is not satisfied that this is a claim made and maintained by the applicant, but if the Tribunal is wrong in this respect, it is not satisfied that there is evidence before the Tribunal to support this claim to the extent that the applicant faces a real chance of serious harm or a real risk of significant harm for this reason.
The witness [Mr A]
[14] Delegate’s decision record TF5.
Mr [A] met the applicant because he also had a liver transplant (in 2013). He was originally from Jalander, Punjab, about 365 km from Delhi. He has been an Australian citizen for 28 years. He was working as a [occupation] here.
He said that the applicant will die if she returns. The Tribunal asked if he is a doctor and he said no. The Tribunal asked why he said this and he said that he has been back five times since his transplant and on every occasion he got sick. The Tribunal asked why he would have kept returning if he got sick and he said that he went back for various people’s weddings, and he would stay on average two to three weeks. The Tribunal asked what happened when he saw a doctor and the witness said that the doctor suggested that he see a liver specialist but that the liver specialist is eight and-a-half hours way in Delhi and that was too far for him to go. The Tribunal put to the witness that given he had travelled thousands of kilometres from Sydney to India, and even though he was on holidays in India, he did not go and see the liver specialist in Delhi. The witness repeated that it was too far away. He said he never went to see a liver specialist in Delhi. He said he can’t go there “all the time”. The Tribunal put to him that he must not have been too sick otherwise he would have gone to see the liver specialist. He agreed. He said he saw a doctor who gave him medication but he took it only when he came back and saw his liver specialist here. He said that she will not make it when she goes back. The Tribunal put to him that he has no personal experience of seeing a liver specialist in India so it is difficult to accept when he says that she won’t survive if she goes back, and that the treatment that she gets in Australia she can’t get in India. He responded that he hears that on the news and on TV and one can’t get medical treatment like one can get in Australia. He said he had a liver transplant but she had more post-operative complications than him.
The Tribunal asked if the applicant had any questions for the witness. She said to ask how his doctor was (non-liver specialist) in India. He said they were alright, just like a GP. She said to ask him if the doctors are greedy there and if they don’t care for people. The Tribunal put to her that he had just said they were alright, like a GP. He then said that they are greedy and they don’t care when you are sick. He said they charge the same as they charge normal people. The Tribunal sought clarification and he said that he has “heard” that hospitals charge too much but he has never actually been to a hospital in India.
The agent did not have any questions for the Tribunal to ask the witness.
The Tribunal said to the applicant that it has to consider the weight to give to her friend’s evidence as he does want her to stay here. It also noted that his evidence was not directly relevant because he has not visited a liver specialist in India. She suggested that her situation was worse than his as she had had more post-transplant surgeries. The Tribunal has considered the above evidence, however, the witness’s evidence indicates that he had a liver transplant in Australia, he has continued to visit India since his transplant despite saying that he has become ill each time he has gone there. The Tribunal considered that if the witness genuinely risked serious illness by returning after having had a liver transplant, he would not return to India. The Tribunal has some sympathy for the witness and the applicant, but it is not satisfied by his evidence that the applicant herself faces a real chance or real risk of serious illness or not having access to adequate healthcare in India in the reasonably foreseeable future.
The support letters
The support letters relied upon their own areas of expertise, as well as their views on country conditions in India (with no reference to any source information) and the applicant’s claims to them. As noted above, the Tribunal does not consider that the applicant’s claims as to her circumstances are reliable, and in this regard it does not place weight on the support letters insofar as they refer to the conditions that await the applicant in India because of her personal situation.
As discussed at hearing, there were further concerns with the support letters.
While the Tribunal does not doubt the doctors’ expertise as to the applicant’s medical condition, the letters went further than this, expressing views, without sources, as to country conditions in India and how they will affect the applicant in India. At the hearing the Tribunal had expressed the concerns with the assertions made by the doctors in their letters as to matters which appeared outside of their expertise, namely as to what she could and couldn’t afford in India, whether certain expenses for medical treatment in India would be outside of her reach, suggestion that “it appears” that government subsidised institutes would not be able to deal with the complexity of her liver situation, and that a return to India could be a fatal outcome for her.

105. The Tribunal also finds that the applicant is a resourceful and resilient person who has worked more than she has declared to the Tribunal, and it finds that she has education and work experience and the support of her family and the Sikh community and it is not satisfied that she will not be able to obtain work and contribute to the household expenses including obtaining her medication and other expenses.
106. Mental health: At the end of the hearing the Tribunal noted that while it accepted that the applicant would be distressed about returning, this did not appear to reach the threshold or test of refugee or complementary protection. The applicant did not seek to comment. After the hearing however (provided with the June 2019 submissions) there was a medical certificate from a GP stating only that he examined the applicant on 3 July 2018 and “in my opinion she is suffering from: “depression” and she is taking [medication] for her depression. Another GP stated more recently on 19 June 2019 that “as a result of her chronic illness” she has been suffering from depression and he feels that she would greatly benefit from ongoing care in Australia with her specialist team. The Tribunal is prepared to accept that the applicant may have been stressed, distressed and suffering from depression as a result of her circumstances; the Tribunal has considered this in light of the difficulties with her evidence (but is not satisfied that this can explain those difficulties). In terms of returning to India, the applicant did not claim to the Tribunal that she would face a real chance of serious harm or a real risk of significant harm because of her mental state and she did not claim that she could not access health care for depression. Although she said that she did not believe that she could access her “medications”, her evidence in this regard was not satisfactory and the Tribunal is not satisfied that this is a genuinely-held belief of the applicant. The Tribunal is not satisfied on the evidence before it that the applicant was concerned that she could not access treatment for depression in India and the Tribunal does not accept on the evidence before it that the applicant would face a real chance of serious harm or a real risk of significant harm on this basis.
The law and Departmental policy
107. As a result of the above, the Tribunal has found that it is not satisfied that this applicant faces a real chance of serious harm or a real risk of significant harm in India due to a lack of access to adequate treatment including medication. Even if this was wrong (which the Tribunal does not accept), the Tribunal considers that the law would not permit the granting of a protection visa. As discussed at hearing, if the applicant returned to India and if she could not get access to adequate treatment (which has not been accepted) it did not appear from her claims that this meant that she faces a real chance of persecution (namely that she faces serious harm because of race, religion, nationality, political opinion or being part of a particular social group and that one or more of those reasons would be the essential and significant reason for the harm (such as discriminatory behaviour). The Tribunal also referred to the definition of complementary protection, in particular noting that the concepts of death penalty and arbitrary deprivation of life did not appear applicable, and that the other components of the definition require a certain level of pain and suffering which must be intentionally inflicted. The Tribunal noted that even if she was not able to access adequate treatment, it did not appear that this would be intentionally inflicted pain and suffering. The Tribunal noted that it had looked at the law and the Department guidelines which discuss a basic threshold of harm and that a lack of access to medical treatment may not meet the threshold[21]. The Tribunal said that it had not made up its mind but when it considers the law as discussed it does not seem to cover her situation.
[21] Extracts from the Guidelines are set out in Annexure C.
108. The Tribunal noted that the country information indicated that if she didn’t get access to adequate treatment it did not appear that this would be because of discrimination but more as a lack of resources. The Tribunal noted that a consideration of the definitions of refugee and complementary protection did not appear to cover her case as it is and in that regard the Tribunal asked if she wanted to comment. She said that she understands that her case doesn’t fit into the categories but she got sick in Australia and all her problems happened while she was here. She said that her liver was changed here and she wants to stay in Australia.
109. On the basis of the evidence before it, the Tribunal does not accept that the applicant would be denied treatment on the grounds of discrimination because she is not a VIP or politician or for any Convention ground. The Tribunal further does not accept on the evidence before it that she would be denied treatment for her mental health for any Convention reason. The Tribunal finds that the evidence before it indicates that the Indian government appears to be taking steps to improve access to resources and treatment, and that there is specialist health care available to the applicant in India.
110. On the evidence before it, the Tribunal also does not accept the conditions facing the applicant in India constitute, significant harm as defined by s.36(2A).
111. While it may be argued that lack of adequate medical treatment constitutes cruel and inhuman treatment or degrading treatment, the evidence before the Tribunal does not indicate that there is an intent to inflict severe pain or suffering (in the case of cruel and inhuman treatment) or an intent to cause extreme humiliation (in the case of degrading treatment) as required by s.36(2A). In any event the Tribunal does not accept on the evidence before it that there is a real risk of a lack of adequate medical treatment. The Tribunal also does not accept that there is evidence to support that the applicant faces deprivation of life, of an arbitrary nature (or otherwise). Similarly, there is no suggestion of a risk of imposition of the death penalty.
112. The Tribunal has found that she will return and live with her family; although obtaining work may not be easy, it considers that she is educated and resourceful and that she will be able to obtain some work so that she can contribute to the household, and she will travel to Delhi and access other care and treatment when required. It is satisfied that she will receive the support of her family and the wider Sikh community. The Tribunal is not satisfied that the country evidence shows that, when considering her environment holistically (including sanitary conditions, pollution, the weather, the food, access to adequate medical treatment including medication), that she faces a real chance of serious harm or a real risk of significant harm in the reasonably foreseeable future in India.
Conclusion
113. The Tribunal has considered the applicant’s claims individually and on a cumulative basis, having regard to the concerns with the applicant’s credibility, as well as the support information and the relevant country information, the Tribunal finds that she does not have a well-founded fear of persecution as a refugee for any of the reasons put forward by her or on her behalf.
114. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s.36(2)(aa) (see Annexure A, which provides a summary of the relevant terms).
115. Having considered her claims and circumstances on a cumulative basis it is not satisfied that she faces a real risk of significant harm for the reasons claimed or for any reason.
116. For the reasons given above the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that she is also unable to satisfy the criterion set out in s.36(2)(b) or (c). As she does not satisfy the criteria for a protection visa, she cannot be granted the visa.
DECISION
117. The Tribunal affirms the decision not to grant the applicant a protection visa.
Christine Cody
Member

ANNEXURE A - RELEVANT LAW

The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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.
Refugee criterion
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 under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution. Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of a protection 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 the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant 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; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines and any country information assessment prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
ANNEXURE B – COUNTRY INFORMATION
The Institute of Liver & Biliary Sciences website
The Institute of Liver & Biliary Sciences (ILBS) states that:
The Institute of Liver & Biliary Sciences (ILBS) has been established by the Government of the National Capital Territory of Delhi as an autonomous institute, under the Societies act.
The mission of ILBS is to become a dedicated international centre of excellence for the diagnosis, management and advanced training and research in the field of liver and biliary diseases.
The first phase of ILBS is already functional having 180 hospital beds, 74 of which cater as intensive care (ICU) beds[22].
[22] >
Liver Transplant
ILBS is the only centre under the aegis of the Delhi Government to have an active liver transplant program. This began in 2010. At ILBS, we have a very capable team that treats and supports adult and paediatric patients in end-stage liver disease. This includes pre and post transplant care. From our program’s inception in 2010 till now, we have offered living related transplantation services to liver patients and their living donors who have come to us from all parts of the country.
For more enquiries on Liver Transplantation or to make an appointment, please call The Transplant Coordinator at ILBS on 46300000 extension 7053[23].
[23] >
It also states that they have an outpatient department both paid and general clinics. The General clinics charge a nominal fee of RS20 -
Out Patient Department
Paid out-patient clinics are conducted in specialties like Hepatology, Hepatopancreato-biliary surgery, Pediatric Hepatology, Nephrology, Pulmonology, Oncology, Cardiology, Urology and Renal Transplant services. Special clinics in nutrition, neurology and radiation oncology have also been started. General OPD clinics are conducted twice a week for the general category of patients at a very nominal consultation fee of Rs. 20[24].
[24] from the evolution of public heath care in India
The public health sector in India is undergoing a tremendous change driven by forward looking policy initiatives, technological revolution that is fast closing the gaps in healthcare delivery system and increasing integration of traditional systems of medicine with modern healthcare to deliver affordable and inclusive healthcare for all.
Policy Push to Make Healthcare Affordable for Masses
The National Health Mission (NHM), India’s flagship health sector programme with an allocation of Rs 26,690 crores for 2017-18, is gradually revitalising rural and urban health sectors by providing flexible finances to State governments. The mission has four components — the National Rural Health Mission, the National Urban Health Mission, tertiary care programmes and human resources for health and medical education[25].
[25] C

PAM Guidelines- Refugee Law Guidelines

6.5 Systematic and discriminatory conduct: s91R(1)(c)
6.5.1 Overview
Under s91R(1)(c) of the Migration Act, persecution must involve systematic and discriminatory conduct. Therefore, persecution requires selective harassment, which discriminates against a person for a Convention reason.
6.5.2 Systematic conduct
Unsystematic or random acts which are not targeted towards the individual concerned or a group of persons with whom the individual is associated, will not meet the statutory requirements.
In Minister for Immigration and Multicultural Affairs v Ibrahim (‘Ibrahim’),120 the High Court explained the meaning of systematic conduct, stating:
It is an error to suggest that the use of the expression ‘systematic conduct’… was intended to require, as a matter of law, that an applicant had to fear organised or methodical conduct, akin to the atrocities committed by the Nazis in the Second World War.
Although ‘systematic’ has been interpreted to mean that situations of random violence do not come under the Convention, this does not require a series of persecutory acts. As McHugh J outlined in Ibrahim, it is not necessary that the applicant fears being persecuted on a number of occasions or ‘show a series of coordinated acts directed at him or her which can be said to be not isolated but systematic.’

The fear of a single act of serious harm, done for a Convention reason, will, in some circumstances, be sufficient.121
Although Ibrahim predates the enactment of s91R, McHugh J’s interpretation has been supported in later decisions where the courts held that the phrase ‘systematic and discriminatory conduct’ means non-random, selective, pre-meditated and intentional.122
6.5.3 Discriminatory conduct
Whether conduct constitutes persecution in the Convention sense also depends on whether it discriminates against a person because of a Convention ground.
If victims of persecution have been selected because of a prescribed category, for example race or religion, that selection because of its nature, is discriminatory.123 Likewise punishment of a non-discriminatory kind for contravention of a criminal law of general application will ordinarily not amount to persecution.124
In Ibrahim, two distinct notions of discrimination are outlined:

Where persons who are not different, in a relevant sense, are treated in a different manner (for example, poorer work conditions given to persons of a particular religion, where religion is of no relevance to the employment).

Where persons who are relevantly different are treated in a manner that is not appropriate and adapted to that difference (for example, a person of a particular religion being forbidden from praying during work hours).

Each understanding of discrimination may meet the statutory requirement in s91R.
Persecution may be manifested by discriminatory acts directed at members of a group in a way that shows that, as a class, they are being selectively harassed. In such a case it is not necessary that the conduct be directed at a person as an individual. In other cases, the person may be the only individual who is subjected to discriminatory conduct.
In SZDTM v Minister for Immigration and Multicultural and Indigenous Affairs125the Federal Court found that the RRT had erred by finding that anti-Chinese criminal activity did not have a Convention nexus because the actions were motivated by the wealth or perceived wealth of the Chinese. Justice Bennett found that if action is taken against members of a racial group because of a characteristic, actual or perceived, that is common to and attributed to the racial group, the action is based on the race of that group.
6.5.4 Consider an applicant’s personal attributes
In determining whether the harm resulting from discriminatory conduct meets the required threshold of severity, an applicant’s personal attributes or circumstances may be relevant. The threshold for serious harm may be lower when dealing with people who are particularly vulnerable to abuse due to some personal attribute. An example of such a characteristic may include the particular vulnerabilities of women at risk and unaccompanied minors. In Chen Shi Hai v Minister for Immigration and Multicultural Affairs,126 the High Court accepted that the denial of access to welfare entitlements to children can constitute persecution.
There is no authority relating to what extent a person’s particular vulnerability may be taken into account. However, it is clear that a person’s strong subjective fear cannot by itself provide an adequate basis for persecution.127 In Minister for Immigration and Multicultural Affairs v Haji Ibrahim,128 McHugh J commented that the persecution feared must still be:
…so oppressive or likely to be repeated or maintained that the person threatened cannot be expected to tolerate it, so that flight from, or refusal to return to, that country is the understandable choice of the individual concerned.129
This also raises the question as to what degree of physical harm could be considered as ‘serious harm’ when inflicted on someone who, for example, has a physical disability or is old and frail, even if it would not amount to serious harm if the same conduct was inflicted upon a person who is not physically impaired and is young and strong. Decision makers should have regard to the totality of the circumstances of each individual case, including personal circumstances, when assessing whether discrimination faced by an applicant amounts to ‘serious harm’.
PAM GUIDELINES – COMPLEMENTARY PROTECTION

Concerning arbitrary deprivation of life, the PAM indicate that intention is not a necessary element but that it can be a relevant indicator. Arbitrary seems to be random, the PAM say It is involving elements of injustice, lack of predictability, lack of proportionality.

Medical claims

If a non-citizen’s life expectancy would be threatened by being removed due to a pre-existing medical condition (both terminal and non-terminal in nature), this would not amount to an arbitrary deprivation of life. Deprivation of life due to natural causes is not arbitrary.

For further guidance on claims relating to a deliberate withholding of medical treatment, please see the sections below relating to ‘cruel or inhuman treatment or punishment’ and ‘degrading treatment or punishment’. In particular, see Is the act or omission inconsistent with Article 7 of the ICCPR.

…

The question of whether the failure of a state to provide adequate services may amount to a breach of the prohibition on torture, cruel, inhuman or degrading treatment has been explored in a number of instances. Although such treatment may be found to breach various social and economic rights, including those contained in the International Covenant on Economic Social and Cultural Rights (ICESCR), it has generally not been found to amount to a breach of the prohibition on torture, cruel, inhuman or degrading treatment. In other words, a state’s failure to provide housing or education or to guarantee ready access to adequate food is not inconsistent with Article 7 of the ICCPR. For this reason, such treatment is very unlikely to constitute significant harm for the purpose of s.36(2A)of the Act.

The European Court of Human Rights has held that Article 3 of the European Convention on Human Rights (which contains a similar prohibition on inhuman and degrading treatment as in Article 7 of the ICCPR), ‘cannot be interpreted as obliging the High Contracting Parties to provide everyone in their jurisdiction with a home’.38 In a separate case it stated:

The Court recalls first that the [European Convention on Human Rights] does not guarantee, as such, socio-economic rights, including the right to charge-free dwelling, the right to work, the right to free medical assistance, or the right to claim financial assistance from a State to maintain a certain level of living.39

In R v Secretary of State for the Home Department, ex parte Adam, Limbuela and Tesema, the House of Lords stated ‘a general public duty to house the homeless or provide for the destitute cannot be fashioned out of Article 3’.40

It is possible that in exceptional circumstances, a state may breach Article 7 where it takes deliberate action against a particular person or group which causes severe socio-economic deprivation whereby a person is denied shelter, food or the most basic necessities of life.41 Treatment may be more likely to breach Article 7 where the persons affected are vulnerable and wholly dependent on the state for their wellbeing.42

For example, in the case of M.S.S. v. Belgium and Greece, the European Court of Human Rights held that a situation in which a State, through its inaction, allowed an asylum-seeker to live in the street for several months with no resources or access to sanitary facilities and without means to provide for their essential needs, combined with a prolonged uncertainty on the outcome of the asylum procedure, attained a level of inhuman or degrading treatment sufficient to amount to a breach of Article 3 of the European Convention on Human Rights.43 In Sufi v UK, the Court held that in circumstances where IDP camps in Somalia were overcrowded, allocation of water was insufficient, high levels of theft and sexual violence were reported, movement was restricted, and these humanitarian conditions were due to the direct and indirect actions of parties to the conflict, conditions were sufficiently dire to amount to treatment amounting to a violation of Article 3.44….

Even if decision makers are satisfied that a claim of harm arising from a breach of an applicant’s socio-economic rights is sufficiently severe, to meet the definition of ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’ in s5(1), the harm would need to meet every other element of the relevant definition. In other words, a decision maker would need to identify an act or omission by which the requisite level of pain or suffering is intentionally inflicted (for cruel or inhuman treatment or punishment) or which is intended to cause extreme humiliation (for degrading treatment). In certain circumstances it may be appropriate to infer an intention to inflict pain or suffering if it is evident that pain or suffering was or may be knowingly inflicted.

Medical claims

The absence or inadequacy of medical treatment in the country of return does not generally amount to a violation of Article 7 and will therefore not generally meet the definitions of cruel or inhuman treatment or punishment or degrading treatment or punishment. The right to health is protected under Article 12 of the International Covenant on Economic, Social and Cultural Rights and is not considered to be a basis for a non-refoulement obligation in its own right.

There are two types of arguments that an exacerbation of a medical condition could amount to torture, cruel, inhuman or degrading treatment. The first relates to an exacerbation that flows from the return of a person, specifically that the act of returning a person would be stressful or would increase the severity of a medical condition. The second is an exacerbation flowing from an inability to access medical treatment in the country of return, which would consequently increase the severity of the person’s condition.

In general, neither of these two scenarios will amount to a breach of Article 7 of the ICCPR.

These arguments have been considered a number of times by the European Court of Human Rights. For example, in Ndangoya v Sweden, the European Court of Human Rights concluded that the removal of an individual infected with HIV would not constitute a violation of the prohibition of ‘inhuman or degrading treatment’ in Article 3 of the European Convention on Human Rights.45 In that case, the Court considered that there was no indication that the applicant had reached an advanced or terminal stage of illness. They also found that there was adequate medical treatment available in the applicant’s home country of Tanzania and that he would have the support of his family if he were returned.46

A non-refoulement obligation has been found in only one instance by the European Court of Human Rights. In D v UK, the European Court of Human Rights found that the removal of an AIDS patient in the final stages of illness to St Kitts would violate Article 3 of the European Convention on Human Rights.47 The Court in that case emphasised the exceptional nature of that case and relied on a combination of factors to determine that D’s removal would violate Article 3. These factors included:

·    that D’s removal would significantly lower his life expectancy and subject him to severe physical and mental pain and suffering
·    he would have no prospect of adequate medical care in St Kitts
·    he would be homeless and have no family ties or other moral or social support upon return.48

If a decision maker believes an applicant’s circumstances are highly exceptional, they should seek further advice from the Onshore Protection Helpdesk. Decision makers should note that, in order to amount to significant harm, claims related to inadequacy of medical treatment would need to be intended to inflict either pain or suffering (for the purposes of the definitions of torture and cruel or inhuman treatment or punishment) or to cause extreme humiliation (for the purposes of the definition of degrading treatment or punishment).

If an applicant claims that they would be forced to undergo medical treatment without their consent (such as forced feeding or forced medication), decision makers will need to consider whether this treatment amounts to significant harm. Generally, medical treatment will not be regarded as inhuman or degrading if it is a medical or therapeutic necessity

Share with others:- to share one’s wealth with others in the community, to give to charity, to distribute in Langar (free kitchen) and to generally help others in the community who need help. A Sikh is expected to contribute at least 10% of their wealth/income called Dasvandh to the needy people of the world or to a worthy cause.
Help others: Do Sewa:- is a word used to refer to “selfless service”, performed without any thought of reward or personal benefit. All Sikhs are encouraged by their Guru, Guru Granth Sahib to perform selfless voluntary service for the community. This is not only good for community relations but also is good for the moral uplifting of the person. Sikhs should engage in free service in gurdwaras washing dishes, cleaning the floors and serving food; in community centres; in hospitals, etc.

Key Legal Topics

Areas of Law

Immigration
Administrative Law
Statutory Interpretation

Legal Concepts

Judicial Review
Natural Justice
Procedural Fairness
Statutory Construction

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Citations

1510755 (Refugee) [2019] AATA 3420

Most Recent Citation

VZWF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1876

Cases Citing This Decision

VZWF and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1876

Cases Cited

Statutory Material Cited

Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22

MZWMF v Minister for Immigration and Multicultural Affairs [2006] FCA 780

Minister for Immigration and Ethnic Affairs v Teoh [1995] HCA 20

[2019] AATA 3420

26 August 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Statutory Construction