1621275 (Refugee)
[2022] AATA 4406
•14 October 2022
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: FijiMEMBER: 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 affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5J, 36, 65, 351, 438
Migration Regulations 1994 (Cth), Schedule 2CASES
MZAAJ v Minister for Immigration [2015] FCCA 141
SZDSD v Minister for Immigration [2018] FCCA 1029Any 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 of an interpreter in the Fijian and English languages.
The applicant appeared before the Tribunal on 4 August 2022 to give evidence and present arguments, by telephone.
The applicant was represented in relation to the review.
The Tribunal is satisfied that a meaningful hearing was held, the Tribunal, the applicant and the interpreter were able to heard at all times. The Tribunal provided additional time for the applicant provide a post hearing submission.
CRITERIA FOR A PROTECTION VISA
See Annexure A
CONSIDERATION OF CLAIMS AND EVIDENCE
In her PV application the applicant claimed that she is a religious person. She was unable to attend religious gatherings for a significant period of time due to the restrictions initiated by the then Military regime. The former regime "detailed, questioned, threatened, intimidated
and assaulted those who were perceived by the government to be part of any political matters, religious or otherwise, that demonstrates opposition to the government. This has limited [the applicant's] ability to express [her] religious and political thoughts without fear of repercussions".
The applicant also claimed that she is a member of a particular social group because she has a number of medical conditions. In Fiji, the health care the applicant urgently needs is not available.
At a Department interview, the applicant did not pursue a claim of serious harm for a refugee reason. She stated that she wanted to remain in Australia because she needed constant medical assistance which was not available to her in Fiji. Most of her family reside in Australia and provide the applicant with the assistance she needs. In particular, her niece pays for her medication. Several close relatives recently passed away and only one brother, who is also very ill, and a cousin who lives far away, remain alive in Fiji. She would have no-one to look after her upon return to Fiji.
The applicant’s advisor claims a well-founded fear of persecution based on the applicant’s membership of a particular social group, a result of her extensive medical and health issues and the limited (if any) healthcare services that she can access through the Ministry of Health, Fiji (and the private sector) should she return to Fiji now.
The applicant has suffered from (and still does) hypertension, hypercholesterolemia, vitamin D deficiency, gallstones, cellulites, microalbuminuria and ischemic heart disease. As a result of her ongoing health issues – as well as the severity of these issues - the applicant medical costs in Australia between 2004 and 2014 (partly due to not having access to Medicare at that time) was in excess of $38,000.00. In 2019 the applicant underwent left-knee replacement. This replacement required repairing in 2020, and in 2021 the applicant experienced ongoing pain and swelling resulting in admission to hospital and further surgery in 2022.
The applicant suffers from type 2 diabetes and deranged liver function; this has resulted in the quality of her life deteriorating as well as her daily dependence upon insulin injections and other medication. This must continue for the remainder of her life.
The applicant suffers from ion deficiency which has left her feeling lethargic and unable to function to the best of her abilities. This has impacted upon the applicant’s ability to fully focus on her health issues, resulting in additional assistance and support.
In 2019 the review application was diagnosed with [cancer]. If left untreated, there is very real risk that the cancer will spread to other parts of the body. In 2019, the applicant underwent [surgery], as well as [another procedure]. Again, this was undertaken in order to stem the spread of the cancer in the applicant’s body.
The applicant, although reliant upon Australian healthcare workers for support and assistance given the above health issues, remains dependent upon her niece, [Ms A], for almost daily assistance, duties and tasks. Given these health conditions, the applicant is practically immobile and cannot reasonably undertake daily duties and tasks as she once used to.
The applicant fears returning to Fiji as she does not believe required medical services, treatment, consultation etc. will be available to her through the Ministry of Health, Fiji as well as the private sector. Medical services are free and no discrimination in provision of services. The applicant claims that the Ministry of Health, Fiji will simply direct her to alter
her lifestyle choices with very little (if any) actual medical intervention. In effect, she will be left to die.
If the applicant returns to Fiji, she will be return to her village. The village is located in a remote part of Fiji with limited facilities. Her home would be situated in a hilly, grassy area and there are concerns that the applicant would effectively become house-bound, unable to leave her home or access any kind of support.
At the Tribunal hearing I put to the applicant that she had made no claims of suffering persecution in Fiji. She agreed, she added she moved to Australia in 1987 and returned in 2013 or in 2015. I put that she had no fears of harm in Fiji. She said that she went back because immigration granted her a 10-year visa to allow her to go back and forth. She was given the visa for 10-years after 2007. She came in 1987 and started working, got sick. She became sick in 1998 and she got sick in 2007.
The applicant voluntarily returned to Fiji in 2013 and again in 2015. She was there from about [date]/11/2013 to [date]/12/2013 and again [date]/09/2015 to [date]/10/2015 and she was not harmed in any way. She is ethnic Fijian, she is Methodist and nothing happened to her for her religion or political opinion.
Her fear about returning to Fiji is that she will not receive same health support system. She is due for a knee replacement again.
I put that she would receive the same health services as a person who has the same medical conditions in Fiji. She responded “I am not sure. My brother is [Age] years old. If I were to go from my village to the nearest health system, it would take 10 hours”.
I put that medical services in Fiji are free. She said that she did not know. I explained that DFAT indicates that medical services in Fiji are free.
She said that the support system in Australia is way better and she will have a prolonged life and will not be the same if she returned. She is in a wheelchair. I explained that whilst medical services were inadequate or unavailable in Fiji for all members of the population, there has to be an element of motivation for the infliction of harm by the Fijian authorities, not just inadequacy of services available.
I put that those over 55 in Fiji receive a pension under the Pension Scheme. Healthcare is generally available for those who need it. Specialist healthcare is also generally available in large hospitals. The range of medications available is less than in Australia. Sometimes the facilities are less-maintained and the staff to patients ratio is poor. However, the Fijian government has been actively improving the healthcare facilities. Whatever lack of services there are, that impacts all residents who have similar conditions to her and those who live in remote villages.
The applicant responded and stated that she understood that but regarding her own condition she would like to remain in Australia because the health system is better and she has her family here. If she returns to Fiji there is no one there to look after her.
Her brother is ill. He is [Age] years old. He has 1 daughter but she lives elsewhere.
I discussed the s.438(1)(a) Certificate with the applicant. I explained that the information was a movements record and a cover sheet, that it was irrelevant to the application before the Tribunal and I would place no weight on the information.
The applicant’s niece, [Ms A], gave evidence to the Tribunal. She said that it is difficult for her aunt to go back to Fiji. She would not receive the same healthcare. She would be in a remote village with no support. She would be housebound. She would not be able to walk around there. She has to use walking frames to get around short distances and requires a wheelchair to go long distances. She helped her when she was younger and now spends time with her kids. She is like a grandmother to them. She and her brother are her support network. If she returned to Fiji, she would be going back to die. Her situation is very unique. She has been here a very long time. She has always worked. She paid her taxes. She was a carer for elderly people and people with mental issues. She spent her time here looking after others in need. Her kids would be heartbroken if she goes back to Fiji.
On the 18 August 2022 the Tribunal received an additional submission on behalf of the applicant from the applicant’s niece [Ms A] attesting to the applicant in accordance with Fijian culture and tradition, being considered by her children to be their grandmother and the effect on their family should the applicant be unable to remain in Australia.
On 6 September 2022 the applicant’s adviser sent a Medical Certificate issued by [Dr B]. The adviser opined:
§The applicant suffers with a plethora of health issues, some of which require lifelong treatment / consultation.
§The level of care needed by the applicant cannot be obtained in Fiji given the lack of resources and skills.
§Should the applicant return to Fiji now – given the above – it is likely her quality of life will severely impacted, and that her life expectancy will be decreased significantly.
We submit that this matter warrants referral to the Minister under the present Ministerial Intervention guidelines.
INDEPENDENT COUNTRY INFORMATION
DFAT in its 2022 Country Report Fiji states:
2.11Fiji’s medical system faces a number of challenges. Healthcare is generally available for those who need it. Quality is better in urban areas and may be basic in rural areas, especially the outer islands. Smaller communities might have access to basic healthcare facilities known as ‘nursing stations’ or ‘health centres’, the latter staffed by a doctor. Specialist healthcare is generally available, including cardiology, oncology, radiology and maternal health, particularly in large hospitals. Medication availability varies and the range of medications available in Fiji is less than in Australia. Equipment or specialist treatment facilities, for example for chemotherapy, are sometimes lacking. Some facilities are old and not well-maintained, and staff-to- patient ratios can be poor.
2.12Healthcare is free to the patient but an increasing number of people are taking out private health insurance that allows them access to elective surgeries and cosmetic surgery available outside the public system or overseas.
Social Pension Scheme provides allowances for those over 65 years of age who do not have any form of income or pension or have never been beneficiaries of a superannuation scheme.
Since 19951, the Royal Australasian College of Surgeons (RACS) has been working with health partners in Pacific Island countries to improve access to surgical care through the Australian aid funded Pacific Islands Program (PIP). Among RACS and Pacific-based
1 Health-Pacific-Islands- Program.pdf?rev=a6a0c79c9ebd4c61802d531fe59d32ce&hash=4FF9B5D680C08DD3E8A92314617 9C8BC
respondents, the need to increase support to nursing and allied health workers including diagnostic, postoperative and rehabilitation services, was strongly supported. Many Pacific health workers felt that expanding the scope of support to specialist nurses and allied health professionals was integral to the development of surgical services.
Suva- Fiji2 will soon have its first-ever National Surgical Obstetrics and Anesthesia plan which will pave the way for enhanced surgical care and general health services for the nation.
While officiating as Chief Guest at the two-day consultation workshop for the development of the plan at the Tanoa Hotel in Suva this morning, Prime Minister Josaia Voreqe Bainimarama said improving access to surgeries that can save lives and improve the quality of life for Fijians is one of the most important things we can do in our healthcare system.
“The need to develop a National Surgical Obstetric and Anesthesia Plan for Fiji has risen from the global recognition that there is a huge unmet need for surgical care throughout the world,” Prime Minister Bainimarama said.
“Every year, more than 313 million surgical procedures are performed globally for illnesses, accidents and common conditions across the medical spectrum. But only six per cent of these procedures occur in the poorest countries, where over a third of the world’s population lives. Our record in Fiji is better, but our goal is to be on a par with the most developed countries. Our people deserve no less.
REASONS AND FINDINGS
I accept that the applicant is a national of Fiji and is not a national or citizen of any other country or has a right to enter and reside in any country other than Fiji. Therefore, I find that the applicant is not excluded from Australia's protection by subsection 36(3) of the Act. I also find that Fiji is the applicant's “receiving country” for the purposes of s.36 (2)(aa).
The Department file contains a s.438(1)(a) certificate. This certificate covers folios 121 and 109 and states that it contains information relating to an internal working document and business affairs and therefore is contrary to the public interest. I am of the view it is invalid as it did not identify the harm that could be done by the disclosure of the information. I informed the applicant it was my view that the certificate was invalid, and I disclosed the contents and advised that the material covered by the certificate/notification being a movements record and a cover sheet, were not relevant and will not be taken into account in the Tribunal’s assessment of her claims.
By way of background3 about a third of Fiji’s 330 islands are inhabited. According to the CIA World Factbook, the population is about 940,000. The two main islands are Viti Levu, where the capital Suva and tourist city of Nadi are located, and Vanua Levu. Half the population lives on Viti Levu and 57 per cent of the population lives in cities. Cities are relatively small; Suva, the largest city and capital, has fewer than 200,000 residents. The population is relatively young; more than 80 per cent of people are aged under 54 years.
The World Bank defines Fiji as an upper-middle income country. Fiji is one of the largest economies in the Pacific region, but about a quarter of the size of the next largest, Papua New Guinea. Its per capita gross domestic product (GDP) is much higher than most Pacific neighbours’.
2 surgical-care-and-health-services-11-03-2021/
3 DFAT Country Report Fiji
In her PV application, the applicant claimed that she is a religious person and was unable to attend religious gatherings for a significant period of time due to the restrictions initiated by the then Military regime. The former regime "detailed, questioned, threatened, intimidated and assaulted those who were perceived by the government to be part of any political matters, religious or otherwise, that demonstrates opposition to the government. This has limited [the applicant's] ability to express [her] religious and political thoughts without fear of repercussions".
On 14 May 19874 the military coup, led by Rabuka, caused constitutional confusion and the establishment of an interim Council of Ministers to rewrite the constitution. After the 2nd coup in September 1987 that year there were 10 weeks of serious deterioration of civil order, human rights abuses, and the worsening incidence of crime. Whilst I accept that the time of the military coup many Fijians felt intimidated and had difficulty expressing their opinions, the applicant left Fiji on 30 May 1987.
At the Tribunal hearing the applicant said that she did not suffer any harm in Fiji when she lived there and she returned in 2013 and 2015 for short periods. Her return in 2013 and 2015 indicates a lack of a subjective fear of persecution. I accept that the applicant did not suffer serious harm in Fiji for any of the reasons enumerated in s.5J(1)(a) ie for reasons of her race, religion, nationality membership of a particular social group or political opinion.
I am satisfied the applicant did not suffer persecution in Fiji.
I am required to assess whether the applicant will suffer serious or significant harm in Fiji on her return.
The applicant fears harm in Fiji relating to her medical condition. She claims that she cannot obtain the level of care needed and her quality of life will be severely impacted.
I accept that the applicant, who is [Age] years of age, suffers from a number of serious medical issues, these include hypertension, hypercholesterolemia, vitamin D deficiency, gallstones, cellulites, microalbuminuria, ischemic heart disease, type 2 diabetes, deranged liver function, ion deficiency. I accept that the quality of her life is deteriorating, her life expectancy has decreased and she has developed daily dependence upon insulin injections and other medication. This must continue for the remainder of her life. In 2019 the applicant was diagnosed with [cancer], and underwent [surgery], as well as [another procedure] in order to stem the spread of the cancer in the applicant’s body. She has had one knee replacement and awaits another knee replacement.
The applicant’s advisor claims the applicant has a well-founded fear of persecution based on her membership of a particular social group, a result of her extensive medical and health issues and the limited (if any) healthcare services that she can access through the Ministry of Health, Fiji (and the private sector) should she return to Fiji now.
The applicant is elderly. She has a number of medical issues. Even accepting the applicant is a member of a particular social group, women with incurable medical conditions, persecution involves an element of motivation for the infliction of harm.
I note that medical services are continuing to improve in Fiji such as the first-ever National Surgical Obstetrics and Anaesthesia plan will pave the way for enhanced surgical care and general health services for the nation.
4 volume-i,-2001/Alley.pdf
DFAT stated that specialist healthcare is generally available, particularly in large hospitals. Medication availability varies and the range of medications available in Fiji is less than in Australia. Equipment or specialist treatment facilities, for example for chemotherapy, are sometimes lacking. Some facilities are old and not well-maintained, and staff-to-patient ratios can be poor.
On the evidence before me, I am not satisfied that the applicant will suffer serious harm on her return to Fiji for reasons of her membership of the particular social group ‘woman with incurable medical conditions’ or any other particular social group or for reasons of her race, religion, nationality or political opinion.
I acknowledge the applicant would be likely to face a degree of hardship due to only having an elderly brother living in Fiji, but I note that these are problems experienced by the elderly population generally. I am not satisfied that the applicant will experience denial of access to basic services for a refugee reason.
I accept that due to the complicated nature of the applicant’s condition, some medical services are unavailable in Fiji. Equipment or specialist treatment facilities, for example for chemotherapy, are sometimes lacking. I am satisfied that the lack of appropriate surgical, cancer and geriatric care is harm that affects all residents who have similar medical conditions and also all those who live in remote villages. I note that mere inability on the part of a state to prevent harm is not sufficient to establish a refugee nexus. But, in this instance, it must be shown that the failure on the part of the state to prevent the relevant conduct is the result of toleration or condonation of the conduct, not simply inability to prevent it. The independent evidence indicates that Fiji’s medical system whilst free, faces a number of challenges, as outlined above. I have found no independent evidence to suggest that the lack of any particular medical service in Fiji is the result of toleration or condonation of the lack of provision of adequate medical services for its population. I am satisfied that were it the situation it would be known to independent sources that report on Fiji such as US State Department Human Rights Reports, UK Home Office reports and DFAT. I am satisfied that any harm caused by the lack of appropriate medical services that the applicant might suffer due to her medical condition, in Fiji, is not essentially and significantly for a refugee reason and does not involve systematic and discriminatory conduct.
The applicant makes no claims of harm for any other reason. I have considered the applicant’s claims singularly and cumulatively. I am satisfied that the applicant will not suffer harm for reasons of her race, religion, nationality, membership of a particular social group or political opinion, on her return to Fiji within a reasonably foreseeable future.
I have considered whether the applicant, an elderly woman with a numerous medical conditions outlined above, would suffer significant harm on her return to Fiji.
The independent evidence indicates that the Social Pension Scheme in Fiji provides allowances for those over 65 years of age who do not have any form of income or pension or have never been beneficiaries of a superannuation scheme. Health Care is free.
I accept that there is a real prospect that the applicant will not be able to source the same medication or medical monitoring, treatment and support services, either provided by the state or the applicant’s family as required for her condition. I accept that she is wheelchair dependant with mobility issues. The applicant’s brother, who resides in Fiji, has emphysema and would be unable to assist her and she would be housebound.
In MZAAJ v Minister for Immigration and Anor [2015] FCCA 141, the Federal Circuit Court found the Tribunal was not in error when it failed to consider that the prospect of the applicant dying as a result of being unable to obtain dialysis in Sri Lanka would fall within the
concept of arbitrary deprivation of life. In particular, the Court noted at [42] that the concept of arbitrary deprivation of life 'does not concern the consequences of scarce medical resources in developing countries'.
Having regard to SZDSD v Minister for Immigration and Anor [2018] FCCA 1029 where Judge Baird in regard to the question of whether the applicant would be denied medical treatment 'on an arbitrary basis' (at [60]) , Judge Baird rejected the submission that the fact there was a prospect of the applicant dying of a health condition would enliven the application of the criterion for complementary protection 'without more' (at [59]-[63]).
I have had regard to the Department’s Guidelines5 which state that “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.” The Department’s Guidelines6 also state that 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.
Based on the evidence before me, I find that the inadequacies of the Fijian health care system or the inability to access medical treatment or support system in Fiji that the applicant may face on her return to Fiji does not amount to significant harm as defined. It does not constitute the carrying out of the death penalty, the arbitrary deprivation of life, cruel or inhuman treatment or punishment or degrading treatment or punishment. The country information indicates that any failure to provide the applicant with relevant and appropriate health care treatment or support will be due to the Fiji economy rather than any intentional act or omission.
I note that the applicant submits that the level of care needed by the applicant cannot be obtained in Fiji given the lack of resources and skills. I find that the risk of harm due to inadequate heath care services in Fiji is one faced by by the population of Fiji generally and is not faced by the applicant personally.
Having considered all of the applicant’s claims, individually and cumulatively, I am not satisfied that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on her, she will be subjected to cruel or inhuman treatment or punishment or she will be subjected to degrading treatment or punishment if she returns to Fiji now or in the reasonably foreseeable future.
CONCLUSIONS
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).
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).
5 PAM3: Refugee and Humanitarian - Protection visas - Complementary Protection Guidelines, paragraph 12.
6 PAM3: Refugee and Humanitarian - Protection visas - Complementary Protection Guidelines, paragraph 27.
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).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Lilly Mojsin Member
Ministerial intervention
The Tribunal considers that the circumstances of this case may raise the following matters:
·The length of time the person has been present in Australia (including time spent in detention) and her level of integration into the Australian community.
·Strong compassionate circumstances such that a failure to recognize them would result in irreparable harm and continuing hardship to an Australian citizen or an Australian family unit (where at least one member of the family is an Australian citizen or Australian permanent resident).
I consider that the circumstances of this review may raise the following matters:
·The applicant is in ill health and their removal would cause her serious harm
·Compassionate circumstances regarding the age and health of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person
The applicant is [Age] years of age. She is currently immobile. She has numerous illnesses. She requires knee replacement surgery for mobility. If not monitored on a regular basis and treated appropriately, a specialist medical practitioner that is unavailable in Fiji, it may result in serious and irreversible harm to the applicant. The applicant only has an elderly brother in Fiji who is also ill with emphysema and is unable to provide her with any assistance.
I am also satisfied that compassionate circumstances exist. The applicant only has an elderly brother in Fiji. She has a family in Australia who are willing and able to care for her.
Having regard to the circumstances in this review and having considered the Ministerial guidelines relating to the Minister's discretionary power under section 417 set out in PAM3 "Minister's guidelines on Ministerial powers (sections 345, 351, 417 and 501J)" I consider this application should be referred to the Department to be brought to the Minister's attention.
Annexure A
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (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.
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.
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 themselves 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).
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.
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
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments 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.
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.
…
5H Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a) in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b) in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note: For the meaning of well-founded fear of persecution, see section 5J.
…
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 the 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.
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36 Protection visas – criteria provided for by this Act
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(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii) holds a protection visa of the same class as that applied for by the applicant. (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.
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