1621275 (Refugee) - [2022] AATA 4406

1621275 (Refugee) [2022] AATA 4406 (14 October 2022)

DECISION RECORD

DIVISION: Migration & Refugee Division

REPRESENTATIVE: Mr John Benjamin Maurice Vevers (MARN: 1067816)

CASE NUMBER:  1621275
COUNTRY OF REFERENCE:                   Fiji
MEMBER:  Lilly Mojsin

DATE: 14 October 2022

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

Statement made on 14 October 2022 at 9:56am
CATCHWORDS
REFUGEE – protection visa – Fiji – long period as unlawful non-citizen – first request for ministerial intervention and medical treatment visa granted – second request finalised with no power – religion, political opinion and need for medical treatment – no past harm, voluntary returns and claim not pursued at department interview – treatment and medication for multiple medical conditions – most family members in Australia and daily assistance from niece – country information – limited and variable medical services – no element of motivation for infliction of harm – compassionate circumstances – referred for ministerial consideration – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5J, 36, 65, 351, 438
Migration Regulations 1994 (Cth), Schedule 2
CASES
MZAAJ v Minister for Immigration [2015] FCCA 141
SZDSD v Minister for Immigration [2018] FCCA 1029
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 25 November 2016 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

On [date]/05/1987 the applicant arrived in Australia as the holder of a Vl 2 (Visitor) visa valid until [date]/11/1987. On [date]/06/2004 the applicant was located by Compliance and subsequently detained.

On 22/03/2005, a Ministerial intervention request made pursuant to section 351 of the Migration Act

On 5/04/2007 a former Minister intervened, and granted a subclass UB 685 (Medical Treatment) visa, valid until 5/04/2017.

On 28/08/2015 a Ministerial intervention request made pursuant to section 351 of the Migration Act

On 11/10/2015 a Ministerial intervention request was finalised as "no power"

The applicant who claims to be a citizen of Fiji, applied for the visa on 27 July 2016. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant would suffer serious or significant harm on her return to Fiji.

The applicant appealed that decision to this Tribunal attaching a copy of the Department decision to her review application.

The applicant requested a telephone hearing and the Tribunal consented to the request on the basis that the applicant had medical and mobility problems and that attending a hearing at any other location would be extremely difficult for the applicant.

The Tribunal hearing was conducted with the assistance…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] AATA 4406
Decision Date: 14 October 2022

CaseChat Overview and Summary

The applicant, a citizen of Fiji, sought review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to refuse to grant a protection visa. The applicant had been in Australia as an unlawful non-citizen for a significant period. The applicant's initial request for a ministerial intervention and medical treatment visa had been granted, but a subsequent request was finalised with no power to grant further relief. The applicant's claim for a protection visa was based on grounds of religion, political opinion, and the need for medical treatment.

The primary legal issues before the court were whether the applicant had suffered past persecution or had a well-founded fear of persecution for reasons of their religion or political opinion, and whether there were compelling compassionate circumstances of an exceptional nature that warranted the exercise of the Minister's non-compellable powers. The court also considered the applicant's medical conditions and the availability of treatment in Fiji, as well as the applicant's personal circumstances in Australia, including family support.

The court found that there was no evidence of past harm or a well-founded fear of persecution based on the applicant's religion or political opinion. The court noted that the applicant had not pursued their claim at the Departmental interview and had voluntarily returned to Fiji on previous occasions. Regarding the medical treatment, the court acknowledged the applicant's multiple medical conditions and the limited and variable medical services available in Fiji. However, it found no element of motivation for the infliction of harm by the Fijian authorities. The court considered the compassionate circumstances, including the applicant's reliance on their niece for daily assistance and the presence of most family members in Australia. Ultimately, the court affirmed the decision under review, referring the matter for ministerial consideration based on the compassionate circumstances.

Orders