1601277 (Refugee)

[2018] AATA 1005

1601277 (Refugee) [2018] AATA 1005 (7 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1601277

COUNTRY OF REFERENCE:                  Fiji

MEMBER:Mara Moustafine

DATE:7 February 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 07 February 2018 at 12:50pm

CATCHWORDS
Refugee – Protection visa – Fiji – Particular social group – Medical patients – Denial of medical care – Political opinion – Restrictions on religious teachings – Complementary protection – Request for Ministerial intervention

LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J-5LA, 36, 417, 431, 499
Migration Regulations 1994 Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant claims to be a Fijian citizen and is [age] years of age. He last arrived in Australia [in] July 2014 as the holder of a [temporary] visa, which was valid until [October] 2014. He had travelled to Australia on [temporary] visas on ten previous occasions between 1993 and 2002.

2. [In] October 2014, the applicant submitted to the Department of Immigration an application for a Protection visa, which was determined to be invalid. [In] December 2014 he lodged a [different temporary] visa, which was refused [the next day]. The applicant applied to the Department for a Protection visa [in] May 2015 and the Department refused to grant the visa [in] January 2017.

3. [In] February 2017, the applicant applied to the Tribunal for a review of that decision, a copy of which he provided to the Tribunal for the purpose of the review and is taken to be on notice of its findings and reasons.

4. The applicant appeared before the Tribunal on 1 December 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Fijian and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

6. The issues that arise on review are whether the applicant is a person in respect of whom Australia has protection obligations under the refugee criterion or the complementary protection criterion.

   RELEVANT LAW

7. 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, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

   Refugee criterion

8. Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.

9. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

10. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.  

    Complementary protection criterion

11. 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 the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

    Mandatory considerations

12. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE AND FINDINGS

    Application to the Department

13. According to his Protection visa application form, the applicant is an ethnic Fijian, was born in [a particular] district of Fiji and was resident in Suva before coming to Australia. He identified his religion as Christian – [Church 1] and stated that he was retired since 2012, although he previously worked as a supervisor at [named businesses] ([in specified years]), as [an occupation] for [Church 1] ([specified years]) and was [an employee] of [a church] ([in specified year]). His highest level of education was a [qualification] from [an education provider] ([in specified years]). He stated that he was married and that his wife and one [sibling] were resident in [Country 1]; while his [children] and [siblings] lived in Fiji.

14. In summary the applicant’s claims, as set out in his Protection visa application, are that he fears serious harm in Fiji for the following reasons:

    a.Political opinion: As a religious pastor of [Church 1] in Fiji he was unable to preach religious sermons in public forums following restrictions initiated by the then military regime; whose threats, intimidation and assaults against those who are perceived to be preaching about political matters in opposition to the government has limited his ability to express his religious freedoms without fear of repercussions. He fears that, if he returns to Fiji, he is likely to suffer interrogation, detention, ridicule, harassment or torture. 

    b.Membership of the particular social group of Fijians suffering from [medical condition 1] to whom the Fiji Ministry of Health (MOH) denied medical care and assistance necessary to keep them alive. He fears that on his return he will not be provided any support, medical care or treatment by the MOH as this was denied to him in the past and this will result in the degradation of his life and ultimately lead to his death.

15. A submission from the applicant’s adviser and supporting documents were provided with the application, including a copy of his [Church 1 membership]; documents relating to his medical condition, including a medical certificate from the [a health agency] dated [in] September 2013, stating that he had been undergoing [prescribed treatment] since June 2013 and supporting his application for the [regular treatment] program offered by the MOH; two letters from doctors in Australia dated October 2014 stating that he was suffering [medical condition 1] and receiving [prescribed treatment] at [an Australian] Hospital [regularly]; and various reports and articles regarding the political situation in Fiji.

16. The applicant was invited to attend a protection visa interview by the Department but advised that he did not wish to do so due to his ongoing health issues and requested that a decision be made on the his Protection visa application and available information.  

    Application for review

17. On 27 November 2017 the applicant’s adviser provided to the Tribunal a submission outlining the applicant’s background and migration history and setting out his claims in similar terms to the submission earlier provided to the Department. Additionally, the adviser requested that, in the event that it affirmed the Department’s decision, the Tribunal refer the matter to the Minister for consideration under Ministerial intervention pursuant to s.417 of the Migration Act.

18. With the submission the adviser included the same documents outlined at paragraph 15 above, as well as a letter from [an Australian] Hospital confirming an appointment for the applicant for [tests] [in] February 2017 in preparation for [surgery] for which the applicant had been waitlisted. Further medical documents were provided at hearing, including a letter from the [Specialist] dated [in] October 2017 to [a welfare agency] regarding the applicant’s issues: [Medical condition 1], [other specified conditions] and a letter from [the Australian] Hospital regarding an appointment at [their specified] Clinic [in] March 2017.

19. At hearing the applicant gave evidence about his background, family, travel history, medical issues and his claims for protection. The Tribunal also discussed country information and matters relating to his current circumstances.

20. The applicant told the Tribunal that he came to Australia in July 2014 for a three month holiday and to visit a friend who was a pastor. At the time, he was suffering from [two medical conditions], for which he had been having [prescribed] treatment in Fiji. After the MOH denied him funding for a [specified treatment] in [Country 2], he came to Australia for a holiday as he was expecting to die soon and had already made funeral arrangements with his son. After receiving hospital treatment in [Australia], the applicant applied for a Protection visa at the suggestion of his friend, the pastor. The applicant had been staying with the pastor until last year but was now living alone and had been doing church work at [a named] church.

21. Before coming to Australia, the applicant had been living by himself in Suva. He had been working for [two businesses] in Suva but retired in 2012. [Some] of his children lived in Fiji and [a number] of them were now living in [Country 1], as was his wife, who was working [there]. His wife had been supporting him to pay for his [prescribed treatment].

22. The applicant said he first became aware of his health issues in 2002, during a check-up for the [sports] team with whom he used to play. A year later he was diagnosed with [a related condition]. As [an] employee, he had received treatment from the [company’s] private hospital. After he retired in 2012, however, he was no longer covered by the company and had to go for treatment at [a health] centre attached to the public hospital [regularly] at a cost of Fiji Dollars (FJD) [amount]/per session. He paid for it out of his FJD [amount] retirement benefit, but had now used up his life savings.

23. Doctors in Fiji told had him that the only solution was to go to [Country 2] for a [specified treatment] at a cost of FJD [amount], which he could not afford. He applied to the MOH for financial help, but was refused. He claimed this was because of his differences with the [family member of an official] over [matters of mutual interest].  Asked how he knew this, he said it was only his assumption.

24. In Australia the applicant had been paying for his [prescribed] treatment [regularly], but the [welfare agency] was now working on getting him a subsidy. There had been no suggestion by doctors here that he should undergo [specified treatment].

    Findings 

25. On the basis of the applicant’s passport presented at the hearing, and in the absence of evidence to the contrary, the Tribunal accepts that he is a Fijian national and assesses his complementary protection claims in reference to Fiji as the receiving country.

26. Based on his evidence and medical documents provided, as elaborated at paragraph 15 above, the Tribunal accepts that the applicant is suffering from [advanced Medical condition 1], for which he has been undergoing regular [prescribed treatment], as well as a number of other medical conditions.

    Refugee criterion

27. By his own evidence at hearing, the applicant did not suffer serious or significant harm in Fiji. He told the Tribunal that, while he had seen things happening to other people, he had been afraid to speak openly against the government and had not faced any problems from the authorities, apart from being stopped from going to open air evangelical meetings when the military stopped open gatherings, though he did not remember when this was. The applicant stated that he was no longer fearful of returning to Fiji for reasons of his political opinion or as a pastor of the Assemblies of God church as things were ‘cooling down’. He confirmed that he wished to withdraw these claims.

28. The applicant told the Tribunal that the only fear he had of returning to Fiji now was that he was going to die because his [prescribed] treatment would stop as he could not afford to pay FJD[amount] per session as he had exhausted all his savings. He confirmed that there were no other reasons he feared harm in Fiji.

29. The Tribunal discussed with the applicant his claim to fear harm as a member of the particular social group of Fijians suffering from [Medical condition 1] refused medical care by the Fiji MOH. The applicant accepted that it did not meet the definition of a particular social group as defined in Section 5L of the Act, as noted in the Department’s decision, because the shared characteristic was the fear of persecution (denial of necessary medical care) by the Fiji government.

30. As discussed with the applicant, for the above reasons, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution or that there is a real chance he would be persecuted in Fiji for reasons of his race, religion, nationality, membership of a particular social group or political opinion.

    Complementary protection

31. The applicant has claimed that if forced to return to Fiji he will be denied necessary medical treatment by the MOH, as he was in the past, and that this will result in the degradation of his life and ultimate death. Tribunal has considered this claim in the context of the complementary protection criterion – in particular, whether as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act: the applicant will be arbitrarily deprived of his life; or the death penalty will be carried out on him; or he will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment, all as defined in s.5(1) of the Act. The Tribunal notes that each of the definitions requires an element of ‘intention’ to cause harm (see attachment).

32. The Tribunal accepts that, in order to survive, the applicant requires regular [prescribed treatment] and that this is an expensive treatment in Fiji, as it is in Australia. It accepts that, if the applicant returns to Fiji, he will be unable to access free or even subsidised [prescribed treatment] and may not be able to access the same level of health care as he has had in Australia. However, the Tribunal is not satisfied that this is because of any intention on the part of the Fijian authorities to withhold care from the applicant. Rather, in its view, it is because of a lack of resources in Fiji.

33. Further, while the Tribunal accepts that the the Fiji MOH previously denied the applicant financial assistance for a [specified] operation in [Country 2], it is not satisfied that this was because of differences he may have had with the [family member of an official]. The Tribunal considers that the applicant introduced this claim for the first time at his Tribunal hearing in an attempt to strengthen his case and notes that, by his own evidence, it was speculation on his part. The Tribunal also notes that although doctors in Fiji may have suggested that he have a [specified treatment], this option has been pursued by his doctors in Australia, where he has been treated with regular [prescribed treatment].

34. As discussed with the applicant, according to the latest DFAT Country Information Report Fiji[1], the medical treatments he requires, in particular [prescribed treatment], as well as [another treatment], are available in Suva. The report states that the government provides generous public health services, including free primary and secondary health care, although x-ray and other support services are not generally subsidised. [The prescribed treatment] is available at [a specified agency], but is restricted to [specific types of this] disease. [His other specified] services are available through [specified hospitals]. By the applicant’s evidence, he previously received [prescribed] treatment in Suva for a fee. He told the Tribunal that his wife, who works [in] [Country 1], has also been supporting him to pay for [prescribed] treatments in Australia. The applicant made no suggestion that his wife would not continue to do so.

    [1] [Deleted.]

35. In view of the above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Fiji, there is a real risk that the applicant will suffer significant harm: s.36(2)(aa).

    CONCLUSIONS

36. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

37. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

38. There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).

    Ministerial intervention

39. In his submission of 27 November 2017 and at hearing, the representative emphasised that the applicant was an elderly man suffering from multiple health conditions. He requested that the Tribunal refer the applicant’s case to the Minister under section 417 of the Act as the case raised the following relevant circumstances as outlined in the Ministerial guidelines:

    compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person.

    DECISION

40. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Mara Moustafine
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation
    …
    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)that is not inconsistent with Article 7 of the Covenant; or

    (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)that is not inconsistent with Article 7 of the Covenant; or

    (b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)for the purpose of intimidating or coercing the person or a third person; or

    (d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    receiving country,  in relation to a non-citizen, means:

    (a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5J Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)   the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)   there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)   the real chance of persecution relates to all areas of a receiving country.

    Note: For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note: For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)   conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)   conceal an innate or immutable characteristic of the person; or

    (c)   without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)   that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)   the persecution must involve serious harm to the person; and

    (c)   the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)   a threat to the person’s life or liberty;

    (b)   significant physical harassment of the person;

    (c)   significant physical ill‑treatment of the person;

    (d)   significant economic hardship that threatens the person’s capacity to subsist;

    (e)   denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K  Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)   disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)   disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L  Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)   a characteristic is shared by each member of the group; and

    (b)   the person shares, or is perceived as sharing, the characteristic; and

    (c)   any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)   the characteristic is not a fear of persecution.

    5LA  Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)   protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)   the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)   the person can access the protection; and

    (b)   the protection is durable; and

    (c)   in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    ..

    36Protection visas – criteria provided for by this Act

    …

    (2A)A non‑citizen will suffer significant harm if:

    (a)   the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)   the death penalty will be carried out on the non‑citizen; or

    (c)   the non‑citizen will be subjected to torture; or

    (d)   the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)   the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)   it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)   the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)   the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …