1610842 (Refugee)

[2019] AATA 1418

1610842 (Refugee) [2019] AATA 1418 (12 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1610842

COUNTRY OF REFERENCE:                  Mauritius

MEMBER:Penelope Hunter

DATE:12 June 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 12 June 2019 at 11:36am

CATCHWORDS
REFUGEE – protection visa – Mauritius – particular social group – mentally ill people in Mauritius – availability of mental health facilities – free access – does not amount to systematic and discriminatory conduct – standard of mental health services – Brown-Sequard Hospital – previous experience – subjective fear of re-admission – does not constitute serious harm – concerted effort to seek treatment – family support – employment prospects in Mauritius – economic prosperity – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36
Migration Regulations 1994 (Cth), 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. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants, who claim to be citizens of Mauritius, applied for the visas on 28 August 2014. The first named applicant is a [age] year old single male (the applicant). He arrived in Australia [in] January 2010 on a [student] visa. The remaining applicants are members of his family unit. The second named applicant is the mother of the applicant (the applicant mother), aged [age], and third named applicant is his father (the applicant father), aged [age]. The fourth named applicant is the sister of the applicant (the applicant sister), aged [age].

3. According to the applicant for protection the applicant has sought the visa as he fears that, having been diagnosed with [Medical Condition 1], he will be subject to inadequate treatment in poor facilities and likely be confined to a mental hospital, where the change in environment and degrading treatment will have a negative effect on his well-being, life expectancy and ability to manage his condition.

4. The delegate refused to grant the visas on 11 May 2016. The applicant applied for a review of the delegate’s decision to the Tribunal on 18 July 2016.

   CLAIMS AND EVIDENCE

5. The applicant had 12 years’ education in Mauritius and received a [qualification] in 2006. In Australia he has undertaken English language courses between 2010 and 2012.

6. In his Protection visa application form, the applicant made the following claims:

   i.He nearly lost his life in Mauritius in [year]; he started getting depressed as he missed his parents in Australia. He tried to commit suicide by taking an overdose of medication, and his condition became worse due to a lack of proper mental care. When he arrived in Australia his condition escalated and he became violent with his parents. Australian medical intervention has been of great help and he is obtaining continuous medical and social support which could never be found in Mauritius.

   ii.If he returns to Mauritius the change in environment and degrading treatment will cause a great impact on his life. He did not want to be locked up in a small room in a mental hospital. Mental illness is treated poorly by the medical system in Mauritius and his uncle experienced this, as he was locked up on and off since he was [age] years old. His uncle lost his life in 2013. Going back may cause another serious episode of his illness which might damage his brain.

   iii.Mentally ill people were not welcomed in society in Mauritius. He will suffer harm because of lack of community support and poor medical treatment.

7. The applicant attended a Departmental interview on 13 April 2014; he was accompanied by the applicant mother. A copy of the decision of the delegate has been submitted to the Tribunal by the applicants. In her decision, the delegate set out the migration history of the applicants as follows:

25 July 2007	Applicant mother and father granted [student] visas offshore, applicant father as dependent
[August] 2007	Applicant mother arrives in Australia
[February] 2008	Applicant father arrives in Australia
20 May 2009	Applicant mother and father granted further [student] visa, applicant father as dependent
7 January 2010	Applicant granted [student] visa
[January] 2010	Applicant arrives in Australia
16 November 2010	Applicant mother and father granted a [different student] visa, applicant father as dependent
20 June 2011	Applicant daughter granted tourist visa
[June] 2011	Applicant daughter arrives in Australia
[August] 2011	Applicant daughter departs Australia
6 September 2011	Applicant granted further [student] visa
22 December 2011	Applicant daughter granted further tourist visa
[December] 2011	Applicant daughter arrives in Australia
4 January 2012	Applicant granted further [student] visa
[March] 2012	Applicant daughter departs Australia
4 April 2012	Applicant granted further [student] visa
2 July 2012	Applicant mother and applicant father granted further [student] visa
7 August 2012	Applicant father and mother granted [skilled] visa
[August] 2012	Applicant father departed Australia
[September] 2012	Applicant father returns to Australia
12 September 2012	Applicant daughter granted further tourist visa offshore
[September] 2012	Applicant daughter arrives in Australia
[November] 2012	Applicant daughter departs Australia
16 May 2013	All applicants granted [skilled] visas, applicant father, son and daughter as dependents
[May] 2013	Applicant daughter arrives in Australia
11 March 2014	[Skilled] visas cancelled
1 August 2014	Migration Review Tribunal affirmed cancellation decision for all applicants
28 August 2014	Application for review, Permanent Protection (Subclass XA – 866) visa lodged

1. Following the interview with the delegate the following documents were submitted:

   i.Nomination of the applicant mother as the allied person for the applicant under the Queensland Mental Health Act 2000.

   ii.Mental health report, CAMHS-PEIRS Acute, [specified] Health District, by [Dr A], dated 14 March 2004. The applicant has had diagnoses of [Medical Condition 1]; the illness started before 2008 and it appeared to have remained undiagnosed/untreated for a significant period. The applicant has a chronic mental illness, which affects his ability to self-care and manage his own affairs.

   iii.Letter regarding the applicant from [Ms B], occupational therapist, CAMHS-PEIRS Recovery, [specified] Health District, undated. The applicant attends a number of weekly groups to help with his recovery from mental illness.

   iv.Extract from Mental Health Atlas, World Health Organisation, Mauritius 2011.

   v.Downloaded items, power point presentation, Background Mental Health in Mauritius.

   vi.Various articles from World Mental Health Day: Depression one of the most widespread but silent illnesses, 10 October 2012; Human Rights: the disabled are struggling to get hired, 31 July 2014; Miscellaneous Facts, 7 August 2014; Paul Fitzgerald psychiatrist, The mentally ill should be treated with dignity, 12 October 2014.

   vii.Draft copies of NSW forms of appointment of the applicant mother as the guardian and financial manager for the applicant.

   viii.Online press release on mental health issues by the Government Information Service, Mauritius.

   ix.Comparisons of GDP in Australia and Mauritius.

   x.Cost comparisons for drugs prescribed for the applicant.    

   xi.Mauritius salary survey.

   xii.Medical information about [Medical Condition 1].

   xiii.Information comparing health and economic data between Australia and Mauritius.

2. On 11 May 2016, the delegate refused the visas on the basis that she was not satisfied that the applicant had a real chance of being persecuted for a convention reasons and was not satisfied that the harm claimed by the applicant would result from intent on the part of any person or group. Therefore it was found that the applicant did not satisfy the complementary protection ground for the grant of the visa in the Act.

   Tribunal application

   The s.438(1) certificate

3. The Department file relating to the applicants’ Protection visa application contained a s.438(1) certificate in respect of certain documents on that file. It is appropriate to address the validity of the s.438(1) certificate, which requires there to be a reason specified in the certificate for why disclosing matters contained in the specified folios of the Department’s file would be contrary to public interest. The folios the subject of the certificate are consistent with the Department’s identification checklist and an internal disclosure decision checklist. The only reason stated in the s.438(1) certificate was that the information contained in the folios identified was related ‘to internal working documents and business affairs’. As discussed with the applicant at the hearing, the Tribunal is not satisfied that this provides a sufficient basis for non-disclosure due to public interest. The Tribunal finds the certificate to be invalid and has proceeded to treat the document in the usual way as if there were no certificate.

4. The day before the Tribunal hearing, the agent for the applicant provided a submission, in which it was claimed:

   i.The applicant has disturbing memories of the institution where he was treated in [year]. He remembers that he fell and hurt his head in that hospital and that he was placed in isolation. He remembers the indignity of not being dressed in clothes, having to eat food from a rubbish bin and using dirty toilets.

   ii.In Mauritius the applicant was prescribed [Medication 1]; however, he was not able to afford the medication and he eventually stopped taking it.

   iii.There was only one hospital in Mauritius for the mentally ill, Brown Sequard in Beau Basin.

   iv.At the end of 2011 the applicant suffered an episode during which his parents needed to call the police due to his violence. He was taken directly to [Hospital 1] in Brisbane, and admitted for approximately four months. Then he was referred to [Hospital 2] in [Suburb 1] as an outpatient. He was diagnosed with [Symptoms 1] and prescribed [Medication 2] which kept him stable but caused weight gain.

   v.The applicant was transitioned on to [Medication 3] to address the weight gain, but he became mentally ill and ended up in hospital in late 2017. On 6 October he was admitted to the [Hospital 3], having suffered an episode during which he put his hand through a window and attempted suicide. He was eventually given [Medication 4] and discharged after three months in hospital.

   vi.It was claimed that a letter would be shortly available for the applicant’s current treating doctor.

   vii.The applicant fears that he would not be able to remain on his current medication in Mauritius, and that he will suffer a relapse of his mental illness causing serious harm and possibly death. He fears being detained in a hospital where he would suffer serious harm amounting to persecution from which there is no effective state protection.

   viii.The applicant is a member of a particular social group, namely “a mentally ill person in Mauritius”; this membership is an essential and significant reason for the persecution he fears.

   ix.There was also a real risk that the applicant would suffer significant harm in the form of cruel or inhuman treatment or punishment or degrading treatment or punishment due to the absence of his medication in Mauritius and consequent deterioration of his mental health leading to admission into hospital. The intention to cause the harm would be held by the Australian government in the act of returning the applicant to Mauritius. This would deny him adequate medical treatment by forcing him to leave his treating doctor and be without his current medication.

   Tribunal hearing

5. The applicant, the applicant mother and the applicant father appeared before the Tribunal on 20 March 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the French and English languages. Where relevant, the evidence of the applicants is referred to below.

6. The applicants were represented in relation to the review by their registered migration agent.

   Post hearing submissions   

7. On 1 April 2019, the Tribunal received the following further documents:

   i.Letter from [Dr C], [named] Mental Health Service, dated 1 April 2019.

   ii.Letter from [Dr D], MD General Practitioner, Mauritius, dated 30 March 2019.

   iii.Internet articles from interned at Brown-Sequard, 1 February 2018, 48 Years of Independence: a shrinking middle income class, 26 March 2016, Textile: how to break the deadlock, 27 March 2019.

   iv.Internet article: The Current State of Hospitals in Mauritius, 13 August 2018, of African Disability Rights Yearbook, Mauritius, Volume 2 2014.

   vi.Submission on CRPD implementation in Mauritius by the Federation of Disabled Peoples' Organizations Mauritius, July 2015.

   vii.Screenshots of job searches via Job Portal/Mauritius for a clerk or beer factory job.

   viii.Copy of Protection Order application in the Ipswich Magistrates Court, dated 28 December 2010.

8. On 2 April 2019, a further submission was provided attaching email communication the applicant mother had with the National Insurance Company in Mauritius advising that their medical insurance does not provide coverage for mental illness.

   CRITERIA FOR A PROTECTION VISA

9. 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

10. 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).

11. 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.

    Complementary protection

12. 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’).

    Mandatory considerations

13. 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.

    Member of the same family unit

14. Subsections 36(2)(b) and (c) provide, as an alternative criterion, that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s.36(2)(a) or (aa) who holds a Protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in r.1.12 of the Regulations to include spouse and dependent children.

    CONSIDERATION OF CLAIMS AND REASONS

15. The Tribunal has taken into account, in the conduct of the hearing, the AAT Migration and Refugee Division’s Guidelines on Vulnerable Persons and Guidelines on the Assessment of Credibility.

16. Having considered all the evidence and submissions the Tribunal accepts that the applicant has been diagnosed with [Medical Condition 1], and that his current medication is daily [Medication 4]. As per protocol for this medication the applicant requires monthly review.

17. The Tribunal also accepts that the applicant fears any change in his treatment protocol and the consequent disruption in his treatment which may occur were he to return to Mauritius. It is accepted that without proper treatment or support, his treating doctor is of the opinion that there is a significant risk of relapse of his mental illness.

18. It is accepted that the applicant belongs to a member of a particular social group of mentally ill people in Mauritius. The agent for the applicant submitted that the hospital treatment provided in Mauritius may be generic and not specific for the needs of the applicant. Although there had been progress and prosperity in Mauritius, mental health treatment was not up to the standard that it should be able to supply. It was argued that the lack of adequate care did deliberately target people with mental illnesses in Mauritius; this was not something worked on by the government with enthusiasm or seen to be urgent. The Tribunal has considered this submission and is not satisfied that the applicant would be denied medical treatment for the essential and significant reason of his membership of this group, or that it was the choice of the government of Mauritius not to fund mental health services and this disproportionately impacted on those in society within this group. As discussed with the applicant and his representative at the hearing, while the Tribunal accepts that the level of services available for mental health treatment in Mauritius is not the same as in Australia, it is not accepted that any shortage of funding by the Mauritian government  for these services amounts to systematic and discriminatory conduct.

1. Several credible sources of country information outline the extent of the Mauritius’ mental health system. An article in the Mauritius Psychiatric Association Gazette, discussed with the applicant at hearing, sets out information describing the country’s mental health system as follows:[1]

   [1] ‘Mauritius Psychiatric Association - Gazette 2017’, Mauritius Psychiatric Association, 2017, pp.9-11, 20190329132710

   Mental health is a vital component of the health service in Mauritius and is not only incorporated in its specialised help his centre, but also an integral part of all general hospitals, as well as many clinics and area health centres. There is relatively easy access to mental health facilities for every motion on the island, because access as possible within each and every district of the country.

   The mental health system in Mauritius is organised as such:

   ·There is one specialised hospital, the BSMHCC situated in Beau Bassin.

   ·One inpatient dept, with its associated  outpatient department in Flacq hospital.

   ·Outpatient facility in the other for general hospitals.

   There psychiatric clinics conducted by community physicians at various area health centres (AHCs) across the island. There are 4 AHCs in the region of SSRNH, 5 in the region of Flacq hospital, 4 in the region of Jeetoo Hospital, and 5 in the region of J. Nehru Hospital currently offering this service. In the region of Victoria Hospital, there are monthly sessions of psychiatric clinic at Yves Cantin AHC.

   There is no cost by the patient for psychiatric consultation by RMOs or specialists, for outpatient consultation, for inpatient stay in treatment, for any investigation, transfers done for any other service provided by any other Department of Public Health. The only economic burden that impairs patients from accessing a place offering mental health treatment facilities is the cost of transport, which is deemed to be high according to the average Mauritian. Of special note is that the dependent population, i.e. students, the elderly (>60 years) and invalids get free public transport. Moreover, patients with mental health illness are also able to apply for invalidity pensions.

   Almost a third (31.14%) beneficiaries of invalidity pensions suffer from mental illness, most of whom are diagnosed with schizophrenia (Ministry of Social Security results – 2011).

2. A Mental Health ‘Atlas’ produced by the World Health Organisation in 2014 provides information on Mauritius’ mental health system. It is not accepted that medical care in Mauritius is woefully inadequate, or that there is no government policy on mental health. According to the Atlas, Mauritius’ mental health legislation is fully in line with relevant human rights covenants. Further, it states that there are a total of 291 staff reported to be working in mental health inpatient care. A total of 30 mental health outpatient facilities are reported, alongside one inpatient facility and a further psychiatric unit attached to a general hospital.[2]

   [2] ‘Mental health Atlas country profile – Mauritius’, World Health Organization, 2014, 20190329123455

3. Nexus Commonwealth Network reports:

   Medical care standards in Mauritius are high and there are several private clinics in addition to the public health system. The main hospitals in Mauritius are the A. G. Jeetoo Hospital in Port Louis, Sir Seewoosagur Ramgoolam National Hospital in Pamplemousses, Victoria Hospital in Quartre Bornes and Candos in the district of Plaine-Wilhems. There are also various private clinics that provide medical services. In a joint venture with British American Investment Co, the Apollo Hospitals Group – Asia’s largest health care group – set up the Apollo Bramwell Hospital, a multi-speciality hospital, in Moka in 2009….

   The government has committed to keeping health care services free of any user cost at the point of delivery. The pursuit of primary health care policy in Mauritius strives to achieve equitable distribution of health resources and support services to the community. This package is delivered through a network of institutions providing preventive, curative and rehabilitative care. Mauritius has an established welfare system with the state as both financer and provider of clinical and non-clinical treatment in the public health sector. [3]

   [3] Nexus Partnership (2018) Find Health and Medical expertise in Mauritius, accessed 27 September 2018 at

4. A 2016 academic article published in medical journal PLOS One also states that the entire health system in Mauritius is free.[4] A 2018 article published in The Lancet, and submitted by the applicant, reports in general terms on mental health services in Mauritius, including reference to those with [Medical Condition 1]. It is clear that mental health treatment is available for [Medical Condition 1]:

   Psychiatric treatment in Mauritius is mostly based in five general hospitals (in Flacq, Pamplemousses, Port Louis, Rose-Belle, and Candos) for mild-to-moderate conditions and one major mental health centre (in Beau-Bassin) that can accommodate up to 700 admissions for severe cases. Several community health centres can also provide psychiatric follow up. However, only 1·6 psychiatrists are available per 100000 people. In 2016, 4681 patients were admitted to the mental health centre, of whom 1800 (38·5%) were admitted for alcohol-related psychiatric conditions, 1149 (24·5%) for schizophrenia, and 345 (7·4%) for depressive disorders; the remaining patients were admitted for bipolar disorder, conduct disorders, and opioid and psychoactive substance abuse.[5]

   [4] ‘Duration of Untreated Psychosis in Chinese and Mauritian: Impact of Clinical Characteristics and Patients’ and Families’ Perspectives on Psychosis’, PLOS One, June 2016, 20190329140705

   [5] ‘Mauritius needs to address mental illness, starting in schools’, The Lancet, 5 October 2018, 20190329144718

5. The Tribunal discussed the substance of this information with the applicant at the hearing and he did not dispute that there were mental health facilities available in Mauritius, or that he could access them without charge. Further, the applicant acknowledged that he would potentially be eligible for a disability pension, however he expressed concerns as to the adequacy of the payment.

6. The representative for the applicant has submitted that the government of Mauritius is intentionally inflicting harm on those with mental health conditions in Mauritius by not sufficiently funding services. The Tribunal is not satisfied that this is supported by country information. As set out above, the government of Mauritius provides free mental health services and sources indicate that Mauritius budgets for mental health services. There may be a lack of resources in certain areas, and the government still has steps to take to progress and improve its disability access resources and legislation. The Tribunal is not satisfied that the country information indicates that the government neglects mental health care. There are stated government initiatives to improve mental health care and also take steps toward community based psychiatric care, although it is acknowledged that it is unclear how successfully these have been implemented.  On several recent World Mental Health Days, officials have made commitments to improve the country’s mental health system. An official government source from 2015 states that ‘[i]n Mauritius, the budget regarding mental health care amounts to Rs 450 million yearly,[6] that is 4.5% of the dedicated health budget which stands at Rs 9.7 billion per year.’[7] On World Mental Health Day 2012, officials announced initiatives to introduce community mental health facilities into Mauritius.[8] On World Mental Health Day 2015, the Minister of Health and Quality of Life announced changes to improve Mauritius’ mental health-related legislation, to better understand mental health issues, identifying gaps and difficulties as well as preventing any form of abuse against patients suffering from mental disorders.[9] On World Mental Health Day 2017, the Minister for Health and Quality of Life announced a policy shift towards community-based psychiatric care:

   The Minister of Health and Quality of Life, Dr Anwar Husnoo, announced a shift in mental health care from long-term institution to community-based care through the implementation of community psychiatric care. He made this announcement yesterday at the Brown Sequard Mental Health Care Centre (BSMHCC) in Beau Bassin during the launching of activities to mark World Mental Health Day 2017.

   “Community psychiatric care will contribute to improve mental health care delivery as well as bring society to integrate people who suffer from mental disorders within the community,” said the Minister. He added that the provision of community-based mental health care will enable people to access treatment in primary care settings while reducing stigma and discrimination about mental disorders. He highlighted that in a bid to increase mental health care delivery, three psychiatrists are posted in each of the five Regional Hospitals and that people with severe mental disorders will still be treated at the BSMHCC.[10]

   [6] According to foreign exchange website xe.com, this equates to around AUD18.2 million as at 29 March 2019

   [7] ‘Mental Health Care Act to be reviewed to better address mental health issues’, Government Information Service, 8 October 2015, CISEC96CF14594

   [8] ‘Community mental health services envisaged in Mauritius’, Government of Mauritius, 22 October 2012, CIS961F9402468

   [9] ‘Mental Health Care Act to be reviewed to better address mental health issues’, Government Information Service, 8 October 2015, CISEC96CF14594

   [10] ‘Health Ministry to introduce community psychiatric care services, Dr Husnoo says’, Republic of Mauritius (Government Website), 12 October 2017, 20190326122247

7. A significant concern for the applicant was that in the event of deterioration of his condition he would face admission to Brown Sequard Hospital, a facility, from his previous experience, he considers inadequate. The Tribunal also accepts that there have been reports of inadequacies in the care delivered at this institution. An undated article from the Indian Ocean Times states that patients at Mauritius’ main mental health facility, Brown Sequard, have developed further conditions due to nurse-patient ratios and levels of care provided for patients in the facility:

   Of the 400 patients treated for psychiatric disorders and grouped within specific "chronic wards" service at Brown-Sequard of Beau Bassin hospital, some of them are chronically ill and have developed in the establishment diabetes, blood pressure, anemia and heart problems, and due to a lack of medical care, as related by the newspaper Défi Quotidien. 
   
   The general secretary of the Nursing Association which represents the interests of nurses, Ram Nowzadick, deplores the fact that specialized nursing must look after some forty patients at the same time. 
   
   For Ram Nowzadick the missions assigned to psychiatric nurses are therefore reduced to mere custodians. 
     
   The latter cannot and ensure proper medical care for all patients under their care. The Secretary General of the Nursing Association continues for a year to denounce this not adapted logistics and even wrote to the direction, though for now its really structured organization of services requests have been taken into account. 
     
   "There are patients who are under the same dose of drugs for more than a year... Which makes no sense. It often happens that doctors did not examine patients. They just prescribe them through their medical records", says the general Secretary of the Nursing Association, Ram Nowzadick, wishing for a better collaboration between doctors and nurses in the effective management of patients. 
   
   On the side of the direction of the psychiatric hospital of Brown Sequard, it disclaims any medical negligence, stating that patients are regularly consulted by doctors and where a nurse finds a patient whose health will deteriorate, the nurse in the direction has a duty to refer to the doctors.[11] 

   [11] ‘Mauritius: Several patients of the psychiatric hospital Brown-Sequard affected by chronic diseases due to lack of medical care’, Indian Ocean Times, undated, (Accessed 26 October 2019), 20190326124001

8. The Tribunal accepts that the applicant has had previous experience with the mental health system in Mauritius, and it is this experience that impacts upon his fear of returning to his home country. It is accepted that he was admitted to Brown Sequard hospital in [year], after suffering an incident of acute mental stress after his parents left him in Mauritius as a teenager when they came to Australia. Yet, the applicant’s evidence regarding his admission to Brown Sequard was vague and not consistent with his agent’s representations. The applicant confirmed that he was not deprived of his clothes, and although there were some scary people there he was located in a youth ward with people his age. He recalls, and the Tribunal accepts, that he was sedated and he fell. He also gave evidence that it was “really bad” and people were eating food off the floor. The letter of support from [Dr C] of 1 April 2019 also contains material not consistent with the applicant’s evidence; she documents that the applicant’s first mental health admission was as a teenager in Mauritius after he attempted suicide by hanging. The evidence of the applicant was that he experienced his first mental health admission in [year] following a bad headache. The applicant’s previous admission occurred at a time when his condition was undiagnosed and untreated. The Tribunal accepts that it would have been frightening and distressing for a teenager at a time when he was already feeling abandoned. In [year] his family were not informed and did not consent to him going to Brown Sequard, and he was removed from the hospital by his grandmother as soon as she became aware of his admission. Given the state of his health at the time, and accepted sedation, the Tribunal is not satisfied that the applicant is the most reliable narrator of his experience. The Tribunal does not accept that the treatment that the applicant received in [year] constituted serious harm. While it may be considered that his treatment was inadequate, the evidence before the Tribunal does not indicate that there was an intention to inflict harm on the applicant as a consequence of his condition.

9. Further, in relation to the applicant’s previous treatment for his mental health in Mauritius, the Tribunal is not satisfied that there was a concerted effort to seek treatment for him. He was without his parents, and his grandmother did not seek further treatment for him immediately. Some months later, he made an attempt on his life and swallowed some pills while living with his grandmother, she took him to hospital and he was admitted to [Hospital 4] where he received treatment and was discharged after a day. His grandmother brought him home and prayed over him and he recovered. His grandmother then took him to a doctor; the evidence is that once treatment was sought, he was able to access appropriate medication. He was prescribed [Medication 1], and his condition stabilised. The subsequent decision to cease medication, potentially due to cost, was made in circumstances where no financial assistance was sought from the applicant’s parents to meet these costs, and the applicant was not receiving an income or social security support. The Tribunal is not satisfied that the only available treatment for the applicant is that he would be locked up indefinitely. Further, while it is accepted that there may be restrictions on coverage for patients with mental health conditions under private health insurance policies, the country information indicates that there are resources for the applicant to access treatment and medication free of cost or at subsidised rates. In addition, it is a stated policy of the government to move toward community based psychiatric care.

10. It is also accepted that the applicant has experienced acute episodes of mental illness in Australia, and that these have occurred when he was not appropriately treated or medicated. The applicant told the Tribunal when he arrived in January 2010 he was not medicated or seeking treatment. His parents did not know of his previous mental health problems in Mauritius; they were not informed at the time and were not aware that he had previously been prescribed medication. After 10 months in Australia his condition deteriorated and he became violent. This then resulted in police and medical intervention in Australia. The applicant was then stable until he sought to change his medication in 2016. The Tribunal accepts the opinion of [Dr C] that the applicant requires compliance with his treatment and family support to remain stable in the community.

11. The Tribunal has considered that the applicant is currently receiving [Medication 4], and there may be difficulties with accessing the medication and adhering to the treatment protocol given the reported side effects. His evidence was that he consults his doctor once a month, when he collects his medication and undergoes a blood test. Annually, he will have a heart test. He requires monitoring as [Medication 4] has a number of side effects. Other than this, the applicant’s evidence to the Tribunal was that he had no other medical treatment or intervention. He does have a caseworker, and the applicant told the Tribunal has had a number of caseworkers while in Australia because in the public system they change regularly. The latest caseworker had attended his house in the last month and talked about arranging study for the applicant and perhaps employment once his visa situation is sorted out. [Dr C] reports that there is a significant risk of relapse for the applicant if he returns without a proper treatment plan or family support. It is accepted that the applicant may not be able to continue his current medication. However, the Tribunal is not satisfied that the situation is such that the applicant would be unable to access any medication for his condition. While [Dr C] reports problems with the applicant’s previous anti-psychotic medication it is not the evidence that there is no other treatment available. Although the applicant may have to use other types of medication, the Tribunal finds that this does not amount to serious harm.  

12. Furthermore, the Tribunal is also not satisfied that the applicant would be without family support. The applicant mother and applicant father presented to the Tribunal as extremely supportive of the applicant. The basis on which they are seeking to remain in Australia is as dependents of the applicant. If the applicant is not granted a Protection visa they would also have to return to Mauritius with the applicant, and would be available to continue to provide him with support. Additionally, they now have knowledge and experience of his condition to be effective advocates. The evidence provided at the Tribunal hearing was that the family home is still available; the applicant’s grandmother continues to reside there. His grandmother has also shown a past willingness to assist the applicant access treatment. The Tribunal accepts that the return to Mauritius may be a difficult transition for the applicant. As discussed with the applicant at the hearing, there are steps that could be put in place with the applicant’s current health care providers assisting the applicant in Australia to liaise with their counterparts in Mauritius to manage this process and develop a treatment plan to ease the transition. The applicant still has family in Mauritius to assist with this and evidence has been submitted, such as the letter of [Dr D], that they are able to contact practitioners in Mauritius regarding the applicant’s condition. As the Tribunal is satisfied that the applicant is able to access treatment for his condition in Mauritius it is not satisfied that he will suffer harm and possibly death if he returns.

1. The Tribunal has also considered that the applicant has required hospitalisation in the past in periods of acute illness and he may require hospitalisation in the future. It is also possible that he may have a period of admission to Brown-Sequard Hospital. It is not accepted that the applicant will be detained indefinitely at this facility. The applicant gave evidence that in the past he was able to be discharged  from  this facility at the request of his family, and his uncle who also endured mental health problems, was not committed indefinitely to this facility. While it is not accepted that the applicant has suffered harm in the past at this facility, it is accepted that he has a subjective fear of any re-admission.  The Tribunal has considered the evidence submitted by the applicant regarding difficulties with the care provided at this facility and this is also reportedly due to problems with adequately trained staff, resources and a stretched medical system. The Tribunal does not accept that if he was admitted to this facility that harm would be intentionally inflicted upon the applicant for a convention reason. He will also have the assistance and advocacy of his family to ameliorate any effects.

2. The Tribunal has also considered the claim that the applicant will suffer harm as he will not be welcomed in society, that there will be a lack of community support and his life will crumble. The Tribunal has had regard to the Lancet article submitted by the applicant and accepts that some persons with mental health conditions experience a stigma around accessing assistance.[12]  However, the Tribunal is not satisfied that this is the position of the applicant; he has acknowledged in his evidence his need for ongoing treatment and his family is supportive of this.  Although it is accepted that there may be some societal discrimination, as there are in many countries such as Australia, for people with mental health conditions, the Tribunal does not accept on the material before it that societal discrimination is so endemic that there is a real chance that the applicant will experience serious harm. Country information, such as that contained in the African Disability Right Yearbook article submitted by the applicant, details that in Mauritius, the ratification of international and regional human rights instruments has led to the adoption of many laws pertaining to the rights of people with disabilities.[13] Under the Equal Opportunities Act 2008, direct or indirect discrimination is prohibited.[14] There are also legislative provisions dealing with the training and employment of disabled persons included in these disability-specific laws and also in the general labour legislation. The Training and Employment of Disabled Persons Act 1996 establishes a board to provide appropriate training to persons with disabilities, and imposes an obligation on employers to provide suitable employment.[15] The National Council for the Rehabilitation of Disabled Persons Act 1986 established a Council to promote and coordinate rehabilitation-related services for disabled persons.[16] It is accepted that there continues to be obstacles for peoples with disabilities, and the Tribunal has had regard to the information contained in the Federation of Disabled People’s Organizations Mauritius submission regarding the implementation in Mauritius of the Convention on Rights of People with Disability. From this it is accepted that better legislative protection for people with disabilities is a work in progress for the government of Mauritius, that improvement is required, and there continue to be obstacles in access to buildings and transport for people with disabilities.[17] Yet, of many of the countries in East Africa, according to the International Labour Organisation, Mauritius stands out as having well-developed structures and an extensive NGO network in place to promote opportunities for disabled persons.[18] Australian research psychiatrist, Professor Paul Fitzgerald, while recommending more resources for those working in the mental health sector, also commented don the great job done by NGOs with limited budget. [19] The Tribunal is satisfied that there are government and community supports available for the applicant to access, and he will not suffer serious harm due to being unable to access services or being unwelcomed in society.

   [12] ‘Mauritius needs to address mental illness, starting in schools’, The Lancet, 5 October 2018, 20190329144718

   [13] Some of the laws pertaining to the rights of people with disabilities are as follows:

   [14] As above at 4.2

   [15] As above at 4.1

   [16] As above at 4.1

   [17] Submission on CRPD implementation in Mauritius by the Federation of Disabled Peoples' Organizations Mauritius, July 2015

   [18] 'Mauritius country profile - employment of people with disabilities: the impact of legislation (East Africa)', International Labour Office, International Labour Organisation, 01 March 2004, CIS24014

   [19] Lemauricien.com, 12 October 2014, CISEFCB23F7006

3. Accordingly the Tribunal finds that there is not a real chance that the applicant will be seriously harmed for the essential and significant reason of his mental condition as a result of his return to Mauritius.

4. The Tribunal therefore finds that the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(a) of the Act.

   Complementary protection

5. The Tribunal has also considered the claims of the applicant under the complementary protection provisions of the Act. The definition in s.36(2A) is framed in terms of harm suffered because of the acts of other persons.  As discussed above, the Tribunal accepts that the mental health care available in Mauritius is not the same standard as in Australia, but finds that care is available via the public system and privately. Additionally, the Tribunal is satisfied that the applicant will not be without a means of support as he can return to the family home, will be supported by his family and he is able to access social security.

6. The Tribunal accepts the submission of the applicant representative that the applicant has had a difficult journey with his mental health. It is not accepted that societal discrimination in Mauritius will impact upon the applicant seeking treatment if he was to return or that for this reason the applicant will be subject to significant harm. It is also not accepted that the government of Mauritius is culpable if the applicant could not obtain appropriate treatment. There is nothing in the evidence to suggest that the government of Mauritius has limited treatment for people with mental health conditions, such as the applicant, to the extent that it could be said that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Mauritius, there is a real risk that he will be arbitrarily deprived of his life. The definitions of torture, cruel or inhuman treatment or punishment in the Act require that pain or suffering be ‘intentionally inflicted’ on a person and the definition of degrading treatment or punishment requires that the relevant act or omission be ‘intended to cause’ extreme humiliation. As discussed with the applicant and his representative at the hearing, the Tribunal is not satisfied on the evidence before it that there is an intention to inflict pain or suffering or to cause extreme humiliation to people suffering the sort of health problems it is accepted that the applicant has.

7. The Tribunal has also considered the submission that it will be Australia who will be intending to inflicting cruel or inhuman treatment or punishment or degrading treatment or punishment, if the application is refused and he is required to return to Mauritius. In SZRSN v MIAC, where it was claimed significant harm would arise from separating the applicant from his Australian children, the Federal Court found that harm arising from the act of removal itself will not meet the definitions of ‘significant harm’ in s.36(2A).[20] Australia’s obligations to afford protection referred to in s.36(2)(aa) arise from the harm faced by a non-citizen in the receiving country, rather than the country in which protection is sought.[21] As the harm under s.36(2)(aa) must arise as a necessary and foreseeable consequence of the applicant being removed from Australia to a receiving country, s.36(2)(aa) will not be engaged by harm inflicted by the act of removal itself.

   [20] SZRSN v MIAC [2013] FCA 751 (Mansfield J, 6 August 2013) at [48]-[49], upholding the reasoning at first instance, SZRSN v MIAC [2013] FMCA 78 (Driver FM, 1 March 2013) at [61]-[65]. Similarly, in WZARI v MIMAC [2013] FCA 788 (Siopis J, 9 August 2013) at [31]-[32] the Court upheld the Tribunal finding that the applicant would not face ‘degrading treatment’ for the stress and pain of being separated from his family if he were returned to Fiji (special leave to appeal dismissed: WZARI v MIAC [2013] HCASL 201 (Kiefel and Keane JJ, 13 December 2013). In SZSNX v MIBP [2015] FCCA 2271 (Judge Driver, 30 September 2015) at [70]-[72], the Court applied SZRSN v MIAC [2013] FCA 751 in different factual circumstances, upholding the Tribunal’s findings that any psychological suffering the applicant may experience in being removed from Australia would not be intentionally inflicted or intended to subject him to further harm

   [21] SZRSN v MIAC [2013] FCA 751 (Mansfield J, 6 August 2013) at [48] and SZRSN v MIAC [2013] FMCA 78 (Driver FM, 1 March 2013) at [61]-[62]

8. The Tribunal does not accept on the evidence before it, therefore, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Mauritius, there is a real risk that he will suffer significant harm, as defined, as a result of his mental health condition.

9. For the reasons given above the Tribunal is not satisfied that the applicant satisfies s.36(2)(aa).

   Claims by the applicant mother and applicant father

10. The applicant mother and father expressed concern at the hearing that they would not be able to obtain employment if they were to return to Mauritius. The evidence provided at the hearing was that the applicant mother was previously employed as a [Occupation 1] in [Workplace 1] and as a [Occupation 2]. She also undertook study in [Discipline 1] and [Discipline 2]. The applicant father had worked in a [shop], at [Workplace 2] and also as a [Occupation 3]. He claimed that due to low wages he sometimes had to work two jobs. They indicated that their limited employment prospects were behind their decision to relocate their family to Australia in the first instance.

11. In Australia, the applicant mother and applicant father are not working. However, while on her student visa, the applicant mother completed qualifications in [Discipline 3] and commenced tertiary qualifications in [Discipline 4]. The Tribunal has also considered the evidence of job searches that they have undertaken for positions such as “[Occupation 1]” in their post hearing documents. It is accepted that wages are not the same as in Australia, and that the applicant mother and applicant father do not have employment to return to in Mauritius. Yet they both have skills and varied experience that can assist them in seeking employment if they were to return. They can return to their former residence, in which the applicant’s grandmother continues to reside. In the event of long term unemployment they are able to access income support under the Social Aid Act 1983. As discussed with the applicants at the hearing, Mauritius is reported to be enjoying economic prosperity. According to a recent article, Mauritius has become the richest country in Africa and between 2007 and 2017 total wealth has risen by 195%.[22] The jobless and inflation rates are also reported as low.[23] The Tribunal is not satisfied that the economic conditions that the applicant mother and father would experience in Mauritius would amount serious harm. The Tribunal is not satisfied that the applicant mother and applicant father have a well-founded fear of persecution for this reason.

    [22] BusinessTech (2018) How Mauritius became the richest country in Africa, accessed 27 September 2018 at

    [23] As above

12. The Tribunal is also considered the employment prospects of the applicant mother and applicant father in relation to the complementary protection criteria. It is not satisfied that the economic conditions in Mauritius amount to significant harm, such that there is a real risk they will be arbitrarily deprived of their lives, the death penalty will be applied, they will be subject to torture, or cruel or inhuman treatment or punishment or degrading treatment or punishment. Considering all the material before it the Tribunal is not satisfied that the applicant mother and applicant father will suffer significant harm for any reason.

13. The applicant sister did not attend the Tribunal hearing and has not herself made any claims for protection.

14. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criteria set out in s.36(2)(a) or (aa) for a Protection visa. It follows that they are also unable to satisfy the criteria set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a Protection visa, they cannot be granted the visas.

    DECISION

15. The Tribunal affirms the decision not to grant the applicants Protection visas.

    Penelope Hunter
    Member

    
    
    

• The Equal Opportunities Act 2008
• The Training and Employment of Disabled Persons Act 1996
• The National Council for Life Rehabilitation of Disabled Persons Act 1986
• The Society for the Welfare of the Deaf Act 1968
• The National Solidarity Fund Act 1991
• The Social Aid Act 1983
• The Lois Lagesse Trust Fund Act 1983
• The Child Protection Act 1994
• The Ombudsperson for Children Act 2003
• The National Women’s Council Act 1985
• The Employment Rights Act 2008
• The Social Aid Act 1983
• The Unemployment Hardship Relief Act 1983