1711438 (Refugee)

1711438 (Refugee) [2020] AATA 789 (27 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1711438
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Peter Vlahos
DATE:27 February 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies 36(2)(aa) of the Migration Act.

Statement made on 27 February 2020 at 5:29am
CATCHWORDS
REFUGEE – Protection visa – Fiji – fear harm from the general public – membership of a particular social group – homosexuality – homosexual men in Fiji – HIV-positive gay person – societal discrimination –decision under review remitted

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Chan v MIEA (1989) 169 CLR 379
MIMA v Gui [1999] FCA 1496
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 16 May 2017 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who claims to be a citizen of Fiji, applied for the visa on 9 June 2015. The delegate refused to grant the visa on the basis that the applicant did not satisfy sub-section 36(2) of the Act.
On 29 May 2017 the applicant lodged an application for review with the Tribunal requesting a review of the Department’s decision to refuse the applicant’s Protection visa.
The applicant appeared before the Tribunal on 24 February 2020 to give evidence and to make submissions and present arguments. At the hearing, the applicant appeared on his own, he did not have a registered migration agent or legal counsel representing him.
The applicant had no witnesses present wishing to provide evidence to the Tribunal nor did he indicate in his response to the Hearing Notice any intention of calling witnesses.
The applicant did not require an interpreter and the Tribunal proceeding were conducted in the English language.
CRITERIA FOR PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether Australia has protection obligations in respect of the [applicant]. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
Country of Nationality and identity
Based on copies of the applicant’s passport which was provided to the Department of Immigration and Border Protection (and to its successor, the Department of Home Affairs) (the ‘Department’), the applicant’s oral and written evidence, and the absence of any evidence to the contrary, the Tribunal accepts that the applicant is a national of the Republic of Fiji and has had his claims assessed against that country in relation to section 36(2)(a) and section 36(2)(aa) of the Act.
The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has regard to the material referred to in the delegate’s decision.
Disclosure Certificates
There are no disclosure certificates on the Department’s file.
Applicant’s visa history
On 16 May 2014 the applicant was granted a [temporary] visa to travel to Australia. [In] June 2014 the applicant arrived in Australia. [In] July 2014 the applicant departed Australia for Fiji. On 9 December 2014 the applicant applied for and was granted a [temporary] visa and arrived in Australia [in] December 2014. On 9 June 2015, the applicant applied for a Protection (XA-866) visa and was granted the associated Bridging visa.
On 26 September 2019 the Department of Home Affairs informed the applicant that it was its intention to cancel his Bridging A visa (which was granted on 9 June 2015) pursuant to section 116(1) (e) (i) of the Act which provided that the Minister could cancel a visa if he was satisfied that the presence of its holder in Australia is, or may be, or would or might be, a risk to (i) the health, safety or good order of the Australian community or a segment of the Australian community.
That Bridging Visa A was cancelled by the Department on the 26 September 2019 and the Department’s decision was upheld by the Tribunal (differently constituted) on 6 February 2020 for non-payment of fee – no jurisdiction.
Since the determination of the applicant’s Bridging Visa A issue, the applicant has remained in detention.
The applicant’s claims for protection
The applicant’s claims as expressed to the Tribunal at the hearing were as follows:
§He [the applicant] left Fiji to seek protection [in Australia] because he is a homosexual man. He comes from a Fijian/Indian family so it is difficult for him to live the way he desires
§He has been harassed by the general public, verbally abused and subjected to violence because he is ‘gay’.
§He did not seek help from anyone because he fears being killed.
§He cannot relocate to another part of the country because homosexuality is not legal in the country [Fiji].
§If he returns to Fiji, he would be discriminated by the community. Homosexuality is illegal in Fiji and there is a high risk of violence from the public. Many gay persons have been murdered. He could be one of them.
§Most families in Fiji are against homosexuality so there is a high chance he could become homeless.
§He cannot live in a country where there is no justice.
The applicant was asked by the Tribunal if he had any other additional claims to make and the applicant told the Tribunal he had no further claims to make.
However, the applicant submitted information which he had not provided to the Department concerning himself and his current health issues:
§Psychologist Report (treating) dated [date] February 2020 by Consultant psychologist Ms [A]
§Report from the [a] Health Centre dated [date] September 2019.
§Certificates of Completion – [a specified] Program undertaken and completed by the [applicant]
Applicant’s background
The applicant, [is] a [age] year old Indian/Fijian national, and a Hindu. He originates from Suva, Fiji. He has family living in Fiji which consists of both parents and his younger brother. The applicant stated that his parents are deeply religious Hindus and adhere to a strict code of morals and a conservative outlook on life and society in general. The applicant indicated in his application for Protection visa that while in Fiji, he never worked as he was either at school or later studying at University for a bachelor’s degree (as he told the Tribunal). The applicant told the Tribunal that he did not complete his studies at university. His study period at university had six-month duration. The applicant has not engaged in any studies while here in Australia and until his recent incarceration in prison, he was working at local ‘[Workplace 1].
EVIDENCE AT THE HEARING
The applicant told the Tribunal that from a very young age at school, he always understood himself to be attracted to ‘boys’. Those feelings never left him and they continued to grow, even stronger as he progressed from boyhood to adolescence and adulthood.
The applicant recounted to the Tribunal that throughout his life in Fiji, he never actively displayed his homosexuality. The Tribunal was told that the applicant’s family – his parents in particular his father, were Fijian Indians and devout Hindus. Indeed any deviation from the established social mores of the Hindu family was not tolerated by the applicant’s father. Nevertheless, this ‘conservative’ strictness in the applicant’s family did not deter the applicant from exploring his own sexuality.
The applicant stated that his first awareness of his homosexuality happened while he was in primary school. In particular, the applicant recounted for the Tribunal his first sexual experience with another male at the age of [age] years. The Tribunal was told that his first same-sex relationship happened with the applicant’s [Relative 1]. His [Relative 1] was [age] years of age. This relationship continued secretly for a number of years but ended when the applicant and his [Relative 1] went their own ways.
The applicant stated that his relationship with his [Relative 1] was concealed from others and the two would regularly meet for sex at his [Relative 1]’s home when his parents were absent.
The applicant then recalled for the Tribunal other sexual encounters he had when [age] and older at an all-boys high school. The applicant told the Tribunal that he would meet different males on a regular basis for sex but this occurred always discretely and always careful not to be discovered by others.
It was noted by the Tribunal that the applicant could not recall any particular relationship with another male except to say that ‘he’ had many relationships but did not have a ‘steady boyfriend’. The applicant did however emphasise the fact, that any one of his relationships were both casual and not long-term duration. The applicant explained to the Tribunal that to have an ‘on-going relationship’ with ‘another male’ was always his preference but never could become the reality because societal mores within the conservative Fijian/Indian community did not permit it – or tolerate it because of the teachings of the Hindu religion.
The applicant’s same-sex relationships continued into his university year but again, the Tribunal was told that he was unable to be open with his feelings even at university. His relationships with other young adults was always strictly discrete and if there were to be any sexual relationships between them, it was always carried out in private and carefully planned so as to not alert others.
The applicant was asked to describe the situation of – how his father found out about him being a homosexual. The applicant told the Tribunal that his father found out about his homosexuality via a fellow worker. The applicant was then, (according to the applicant) [age] years of age. The applicant could not remember, the worker’s name or provide any other details except to tell the Tribunal, that upon hearing this, his father directly confronted the applicant and when it was confirmed by the applicant, he was ‘thrown out of the house…’ (his father’s house). Thereafter, the Tribunal was told, the applicant lived with ‘friends’ until he was able to organise his departure from Fiji to Australia.
The applicant told the Tribunal that the dispute between himself and his father occurred sometime in 2013.
Having been rejected by his father – family in general because of his homosexuality, the applicant lived with a friend’s family who also (the family) organised his documentation and tickets which allowed the applicant to travel to Australia ([June] 2014). On his first trip to Australia, the applicant lived in Sydney with a friend’s family. After a few months in Australia, the applicant returned to Fiji to prepare for his eventual abandonment of his homeland for Australia.
The Tribunal was told that the applicant’s initial exposure to society in Australia was very different from that which he had experienced in Fiji. The applicant explained that he found no societal restrictions while in Australia and having thoroughly explored the ‘gay scene’ in Sydney, the applicant felt that he could live in Australia without any issues and fears about his real sexuality.
Upon return to Fiji, the applicant told the Tribunal that he (with the help of friends) organised himself and again departed for Australia.
The Tribunal asked the applicant was he not afraid to return to Fiji, since he feared societal discrimination and reprisals from his conservative Hindu father. The applicant explained that when in Fiji, he was always careful and discrete and kept close to his own circle of friends who were helping him leave Fiji for Australia. As soon as all arrangements had been made, the applicant left for Australia.
Since his being in Australia, the applicant has had no communication with his father but has constant communication with his mother who supports him. His father remains an authoritarian who has publicly (according to the applicant) ‘disowned him’ because he is a homosexual.
While in Australia, the applicant has worked a [Workplace 1] [and] has had a continuous exposure and interaction with Melbourne’s LGBTI community. Indeed, he told the Tribunal that members of LGBTI community have assisted him in very difficult times and have become for him his family while here in Australia.
The applicant told the Tribunal that though he had experienced a number of same-sex relationships while here in Australia, he also had developed (sometime in 2017) an ongoing sexual relationship with a person he identified as ‘[Mr B]’. The applicant admitted to the Tribunal that this person in his life was a big mistake. He had on a number of occasions had ‘unprotected sex’ with this individual and also became heavily exposed (by him and with him) to the heavy drug scene. The result of these ‘mistakes’ was that the applicant was diagnosed in 2019 as having been ‘HIV Positive.’
The applicant also told the Tribunal that he was currently undergoing constant medical tests and has been provided with an appropriate treatment regime which he is closely adhering to subject always to medical supervision and advice.
The applicant is also ‘drugs free’ and has put behind him his abusive relationship with hard drugs which as he described it to the Tribunal, ‘…changed his life …’ so ‘suddenly and dramatically.’
The applicant receives constant advice and counselling from social workers and his psychologist on how to deal with his health issues. He told the Tribunal that he has plans for his life but fears that if he is forced to return to Fiji, he will be unable to have that assistance and medical support he has here, so that he can continue with his life on a normal basis.
The applicant told the Tribunal that despite the ‘changes’ to the law in Fiji as far as it concerned the issue of ‘homosexuality’ the reality of the situation was, that Fijian society – especially the Fijian/Indian Hindu community will continue to show very little acceptance and tolerance for homosexuals. As for having protection provided by the authorities when required, the applicant was of the opinion that this had not occurred in the past and would not occur in the very near future.
The Tribunal was told that he had considered relocation as an option but this was not possible. Wherever the applicant was to go to live in Fiji, he had no real guarantee that he would be safe in the long-term, nor was he certain that he would not face societal discrimination in other parts of Fiji as he had experienced in his home area. Fiji, according to the applicant is a very small country and with limited areas offered for a homosexual male to be able to live and express himself freely without some fear. Although, the applicant had not experienced actual societal violence – only the violence of his father, that societal violence was still real, possible and constant on his mind and that was the reason he was always careful with his sexuality in public.
COUNTRY INFORMATION – HOMOSEXUALS IN FIJI – FIJIAN INDIANS and STATE PROTECTION
A recent US Department of State Country Report on Fiji’s Human rights practices[1] indicates that:
The Constitution prohibits discrimination on the grounds of sexual orientation, gender, and gender identity and expression
There was some societal discrimination against persons based on sexual orientation and gender        identity, although there was no systemic discrimination. On January 6, Prime Minister           Bainimarama said that for as long as his tenure in government leadership continued, there would    be no same-sex marriage in the country. After some from the community voiced fears of backlash          because of the prime minister’s remarks, Police Commissioner Sitiveni Qiliho assured the lesbian,        gay, bisexual, transgender, and intersex (LGBTI) community that police would protect the LGBTI              community in line with the bill of rights in the constitution.
The FHRADC reported complaints of discrimination against LGBTI persons in such areas as    employment, housing, or access to health care.
While some with deeply held religious beliefs found same-sex sexual conduct objectionable, in           general attitudes toward LGBTI individuals continued to become more accepting. In May various      communities held events to promote and celebrate the equal rights of LGBTI persons such as the            International Day against Homophobia, Transphobia, and Biphobia.
[1] Country Report on Human Rights Practices 2016 – “Fiji”, US Department of State, 03 March 2017, OGD95BE926860
HIV and AIDS Social Stigma
There was some societal discrimination against persons with HIV/AIDS, although it was not systemic. There were no known cases of violence targeting persons with HIV/AIDS.

In a brief paper, the Oceania Society for Sexual Health and HIV Medicine stated that unreasonable fears of HIV infection and negative attitudes and judgements towards people living with HIV persist in the Pacific [region], despite many years of public information campaigns. This stigma and discrimination, according to Oceania Society discourages people from accessing health-care services including HIV prevention, learning their HIV status, enrolling in care and adhering to HIV treatment.
A study published in 2012[2] examined the attitudes and behaviours of health care workers in Fiji towards PLHIV. The study found high levels of stigmatising attitudes amongst its 369 participants:
§35% believed that HIV and STIs were a punishment for immoral behaviour
§46% believed that sex workers were responsible for the spread of HIV and STIS
§9% believed that those who acquired HIV or an STI through illegal behaviour should be refused treatment
[2] Paraniala Silas Lui et al, ‘Knowledge, Attitudes and Behaviours of Health Care Workers towards Clients of Sexual Health Services in Fiji’ (2012) 9(4) Sexual Health 323
The same study also found clear evidence that PLHIV were discriminated against in health care settings:
§10% had witnessed PLHIV being verbally mistreated
24% had witnessed other workers segregate, isolate or quarantine PLHIV
§73% had witnessed other workers using extra precautions when sterilising equipment
§49% were aware of suspected PLHIV being forced to undergo testing before surgery would be scheduled
§61% had seen other workers using gloves to perform non-invasive examinations on PLHIV
§13% had observed other workers refusing to care for PLHIV
The People Living with HIV Stigma Index in Fiji[3] was conducted in 2010.4 Out of 45 people living with HIV, 42% were male and the rest (58%) were female. Over 80% of respondents were between the ages of 25 and 49. The study found significant levels of stigma and discrimination:
•          13% of PLHIV had been denied a health service due to being HIV positive
•         Negative beliefs of blame (21%), guilt (19%) and low self-esteem (17%) are   common and suicidal ideation was also expressed
•         Respondents indicated that their greatest concerns were being gossiped   about (30%), verbally assaulted or threatened (27%), while harbouring a   significant fear of physical assault (21%).
•         25% reported a significant adverse event due to their HIV status in the past   12 months including being forced to submit to a medical procedure.
•         67% had confronted, challenged or educated someone who had been   stigmatizing or discriminating against them.
[3] >
The Department of Foreign Affairs and Trade County Information Report – Fiji[4] reports that:
Homosexual men and women experience limited acceptance in Fiji. There are a few NGOs     operating in Suva, but these are cautious in undertaking public advocacy because of continued      conservative values in [Fijian] society. Gay and Lesbian often do not come out to their families      and are often not accepted when they do, particularly when co-habiting. They find more acceptance in Suva, particularly in wealthier areas.
Overall, DFAT assesses that LGBTI Fijians are at a low risk of official discrimination, and a     moderate risk of societal discrimination.
[4] Department of Foreign Affairs and Trade Country Information Report – Fiji, 27 September 2017 at page, 22
ASSESSMENT OF CLAIMS AND FINDINGS
Credibility
When assessing claims the Tribunal must make findings of fact in relation to the claims. In doing so, the Tribunal is mindful of the difficulties faced by refugee applicants, including issues related to the use of interpreters, nervousness and anxiety in a Tribunal environment, and stress caused by separation caused from home and family. There may also be memory issues resulting from the lapse of time, the cultural issues which affect how an applicant answers questions. The benefit of the doubt should be given to an applicant who is generally credible but unable to substantiate all of his or her claims. All this is taken into account in these findings.
As the Act states, ‘a refugee’ is a person who has, [see, s. 5J (1)(a)], a well-founded fear of persecution ‘for reasons of race, religion, nationality, membership of a particular social group or political opinion.’ The applicant claimed to fear from the general public in Fiji because he he is a homosexual. More to the point, it would also be required of the Tribunal to consider whether his claims fall within ‘…membership of a particular social group…’ such as a ‘homosexual men in Fiji…’
The Act defines what a particular social group is. The elements that must be established are that (1) there is a characteristic shared by each member of the group, (2) the person claiming to be a member of the group shares (or is perceived as sharing) the characteristic and (3) the characteristic is not a fear of persecution. In addition to this, the characteristic must be innate or immutable, or so fundamental to a member’s identity or conscience, that the member should not be forced to renounce it.
The Federal Court in MIMA v Gui [1999] FCA 1496 found that sexual orientation can be a basis for membership of a particular social group. The UNHCR guidance rules support this conclusion.[5] Country information referenced by the Tribunal indicates that same-sex marriage is illegal in Fiji[6] and in January 2016, Prime Minister Josaia Voreqe (Frank) Bainimarama voiced strong personal opposition to its introduction.[7] Based on this information and pursuant to s. 5J(1)(a) of the Act, the Tribunal is satisfied and finds that the applicant fears persecution for reason of membership of a particular social group.
[5] UNHCR Guidance Note on Refugee Claims Relating to Sexual Orientation and Gender Identity, United Nations High Commissioner for Refugees (UNHCR), 1 November 2008, CIS 17538.
[6] ‘2013 Human Rights and Democracy Report – Fiji’, UK Foreign and Commonwealth Office, 10 April 2014, UNHCR Refworld CX1B9ECAB5744; ‘Fiji PM’s.
[7] ‘Fiji PM gay marriage comments shock’ Radio International New Zealand, 6 January 2016, CX6A26A6E430
However, a fear of being persecuted is ‘well-founded’ if there is a ‘real chance’ that the applicant may be persecuted [see, Chan v MIEA (1989) 169 CLR 379 per Mason CJ at 389; Toohey J at 406-7, Dawson J at 396-8, McHugh J at 428-9]. A ‘real chance’ may be below a 50 per cent chance. That being so, a real chance is not a remote chance; there needs to be a real substantial basis for a fear of persecution in order for it to be well-founded. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason[s] claimed. A decision-maker is also not required to make the applicant’s case for him. Nor is a decision maker required to accept uncritically any and all the claims and assertions mad by an applicant.
The applicant claimed to fear harm from the public and from his family members – his father in particular, because of his sexual orientation. He claimed that he has been a homosexual from his early years at school, and he claimed to have had a number of sexual experiences with other males throughout his life. In particular, he claimed that his realisation of his sexual orientation occurred when he was [of certain age], when he had a number of sexual encounters with a [Relative 1] who was aged [age]. Thereafter, the applicant in his evidence to the Tribunal told of various sexual relationships with other males during high school and at university but emphasised that these relationships were always private and never made public because of fear that if his sexuality was exposed he would suffer societal ostracism and harm and harm from a conservative Hindu father who was prone to use violence in order to impose his will on his family.
Indeed, from the country information accessed and considered, the Tribunal accepts and finds that there is some societal discrimination against LGBTI persons in Fiji. Officially, same-sex sexual activity was decriminalised in 2010, and the Constitution of the Republic of Fiji bans discrimination based on sexual orientation and gender identity.[8] The Employment Relations law now disallows discrimination in employment based on sexual orientation. There have been some reports of discrimination on the basis of sexual orientation or gender having access to state protection.[9] Official treatment of LGBTI is generally reported to be tolerant.[10] It would seem from this information that LGBTI persons in Fiji are experiencing a greater level of acceptance in Fiji, but remain subject to moderate level of societal mistreatment and discrimination which noticeable in particular segments of society and mainly emanate from deeply conservative family values and religious dogma.[11]
[8] ‘Freedom in the World 2016 – Fiji’ Freedom House, UNHCR Refworld, 23 August 2016, NGE43874C476
[9] ‘DFAT Country Information Report Fiji’ Department of Foreign Affairs and Trade, 14 April 2015, CISE96CF155.
[10] Ibid, DFAT Country Information Report , 14 April 3015
[11] ‘Discrimination rife’ , Devi, S Fiji Times, 8 December 2014, CX1BECAB11550
The applicant claimed to fear harm from the general public in Fiji because of his sexual orientation. He claimed that homosexuals in Fiji have been murdered and there is a possible chance that he could be a victim of this violence in the future if he was to return to Fiji. Indeed, the Tribunal accepts and finds that there is some societal discrimination against LGBTI persons in Fiji, however, general attitudes towards LGBTI persons have become more accepting and there is no evidence of systematic discrimination. The applicant provided no evidence of him experiencing such threats or verbal abuse. In his evidence, he told the Tribunal that his sexual relationships with other males since he realised his sexual orientation was always ‘careful’ and ‘discrete’ not to draw any attention to his relationships. Therefore the Tribunal does not find that the applicant had any direct societal threat as male homosexual while living in Fiji.
The Tribunal also noted from the applicant’s evidence, that he had not sought protection from the authorities in Fiji and did not raise the issue of protection having been requested and not provided to him. The applicant provided no evidence of a threat levelled against him at a particular instance. His evidence was in particular couched in a fear of being harmed at some unidentified point of time because of his sexual orientation. The Tribunal in considering the issue of the adequacy of state protection, reviewed the case law available which indicates that a state is not required to provide ‘absolute protection’ of an individual, nor can there be said to be a failure of state protection where a state [a government] has not been given an opportunity to respond to a request for protection. The applicant in his evidence to the Tribunal stated that he had not sought protection from the authorities for the reason or reasons that he [the applicant] had not while in Fiji experienced any direct homophobic attack or threat and therefore the Tribunal finds and concludes that no such threats had happened or were experienced by the applicant.
As with regard to his soured and severed relationship with his conservative and Hindu father, the applicant in his evidence spoke of his father showing his displeasure towards him upon being told by a fellow worker that his son was ‘gay’ – though heated at the time, there was no evidence of violence. What followed, was that the applicant was told by his father to ‘leave’ the family home (which he did) and he was subsequently ‘disowned’ by his father and as a consequence by the family though, the applicant told the Tribunal that he continues to maintain – even at a distance – a relationship with his mother.
Having considered the applicant’s evidence and the detail to which it was provided and the country information concerning the treatment of LGBTI persons in Fiji in recent years, the Tribunal is not satisfied that there is a real chance of persecution for one or more of the reasons provided for in s. 5J(a) of the Act if the applicant was to return to Fiji in the reasonably foreseeable future. Therefore, the applicant is not a ‘refugee’ as defined in s.5H of Act a hence, the criterion in s. 36(2)(a) of the Act is not satisfied.
COMPLEMENTARY PROTECTION
The issue before the Tribunal is whether the applicant is entitled to complementary protection.
The Tribunal considers whether there are 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 the person will suffer significant harm.
Significant harm will occur if:
§The person will be arbitrarily deprived of their life; or
§The death penalty will be carried out on the person; or
§The person will be subjected to torture; or
§The person will be subject to cruel or inhuman treatment or punishment; or
§The person will be subject to degrading treatment or punishment.
However, there is taken not to be a real risk that a person will suffer significant harm in a country if:
§It would be reasonable for the person to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; or
§The person could obtain, from the authority of the country, protection such that there would not be a real risk that the person will suffer significant harm; or
§The real risk is one faced by the population of the country generally ad is not faced by the person personally.
The Tribunal finds that the applicant and as a consequence of his current medical condition – being a person who is HIV positive, if he were returned to Fiji in the reasonably foreseeable future will fall victim either to being subjected to cruel or inhuman treatment or punishment or be subject to degrading treatment or punishment committed upon him because he would be unable to receive, the proper counselling care and medical treatment he requires as a person having been diagnosed as HIV positive.
The Tribunal at the hearing was told by the applicant that on or about 2017, he had a relationship with a person called ‘[Mr B]’ who was involved with heavy drugs and as a result of having unprotected sex, he was diagnosed as being HIV positive in 2019. The applicant submitted to the Tribunal his blood test results dated [date] September [2019]. The said report was signed by [a doctor]. According to this report the applicant’s HIV positive status, is considered a ‘chronic virus’ which is not curable but ‘is effectively managed by anti-retroviral agents such Biktarvy.’ The prognosis for the applicant was considered ‘…excellent’ provided he [the applicant] continued to ‘take this medication in the long-term’.[12]
[12] AAT File
The Tribunal was also provided with a report from the applicant’s Psychologist, Ms [A] dated [date] February 2020.[13] The report indicated that the applicant having been diagnosed as HIV positive in 2019 was receiving treatment whilst in detention. It also stated that the applicant suffers from a range of treatable problems, like anxiety, and depression. The report goes on to say, that [while here, in Australia] the applicant has been provided with ongoing psychological support and social worker sessions provided by [an] LGBTI community-controlled organisation, administered by their members, which does work for people with HIV as well as sexuality and gender diverse communities. This assistance the applicant told the Tribunal helped him and continues to help him to learn to live better with his chronic illness. The applicant also told the Tribunal that his social worker was actively assisting him with the identification of employment opportunities for the future. The applicant expressed his fear that if he was to be sent back to his country, Fiji this ancillary but necessary support for him as a HIV-positive gay person would not be available to him.
[13] Ibid, AAT File
In addition to the above, while in Melbourne, the applicant has the assistance of an extensive positive friendship group from the LGBTI community. His engagement with these services has been fortnightly and of great benefit to him. Ms. [A] was of the opinion, that if the applicant was removed from Australia to Fiji, his access to these services which are currently a necessity for his physical and mental health, would cease. Hence, [according to Ms [A]] ‘his mental and physical health may be placed at extensive risk whilst new medical and health support are sourced in Fiji.’
The Tribunal finds that the applicant if he was returned to Fiji in the reasonably foreseeable future will fall victim to either arbitrarily being deprived of his life or subjected to cruel and inhuman treatment being committed upon him by the reality of the situation he would find himself in – in Fiji, where he would be singled out and mistreated by the general community because of his HIV positive chronic illness. He would not be able (due to the lack of) to engage with a range of support services to assist him in continuously dealing with his chronic illness and it changing challenges.
The Tribunal also finds that the applicant will suffer significant harm through degrading treatment by Fijian society in general having a very negative attitude towards persons who (like the applicant) are suffers of Aids. The country information accessed by the Tribunal satisfies in Tribunal’s opinion the conclusions that Fiji might have turned to a point towards a different direction on its attitude towards the LGBTI community, it has not done a complete about face on how it treats or can treat persons who a HIV positive.
The Tribunal gives consideration to whether there is cruel or inhuman treatment or punishment and degrading treatment by Fijian society at large and/by the applicant’s estranged family who may upon finding out he was HIV positive might act in ways aimed at causing harm to the applicant.
Cruel or inhuman treatment or punishment means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or pain or suffering, whether physical or mental, is intentionally inflicted on a person so long, as in the circumstance, the act or omission could reasonably be regarded as cruel or inhuman in nature.
The Tribunal is concerned that the applicant faces a life upon return to anywhere in Fiji he a prospect of a being victim of crime and neglected by the Fijian state because his is a gay Fijian/Indian male who is HIV-positive.
It is clear to the Tribunal those members of the LGBTI community in Fiji if they are diagnosed as HIV positive there is some societal discrimination. It was noted by the Tribunal upon review of the available information on HIV treatment in Fiji, that though societal discrimination was not systemic, it was present and persons like the applicant face societal discrimination and are viewed differently and have very little support within Fijian society and this ‘HIV-positive stigma’ would in the Tribunal’s opinion amount to inhuman treatment or punishment, where acts or omissions by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant.
In this, the Tribunal draws its mind to the fact that while here, in Australia, the applicant has been exposed to a series of medical and professional support services which have enabled him to accept his chronic illness and continue with a productive and fulfilling life. He has regular sessions with his support services and has the required access to vital and necessary medicines. More importantly, he has a large LGBTI community assistance organisation willing to help him. These vital and necessary supports would not, and are not available in his county, Fiji. If they are, they remain in a very embryonic stage and yet to be developed to a level which would be of assistance to persons in the applicant’s situation. Moreover, the societal discrimination of persons with a HIV- positive diagnosis is present and causes hindrance towards providing the best possible treatment for people facing the challenge of dealing on a daily basis with chronic illness.

It is possible that the applicant could potentially be living in substandard housing with no real security because of the need to be constantly on the move in order to avoid giving away his whereabouts and identity as a suffer of HIV. He would not be provided with any established and ongoing assistance or protection against societal recriminations directed at him because of his illness if found. A very different future to the one that has been mapped out for him as was described in the [A] report.
The cumulative effects of these potential problems leads the Tribunal to conclude that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is the real risk that he will suffer significant harm: s.36(2)(aa) (under ‘the complementary criterion’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1) of the Act. It includes a situation where a person will suffer significant harm if he or she will be subjected to inhuman treatment. The Tribunal finds that the provision applies here. The type of issues and harm, described above would be intentional and aimed at the applicant. It is sufficiently prevalent in Fiji to pose a real risk and the risk is exacerbated by the applicant’s medical condition and lack of any societal influence, position and funds. The applicant’s situation is further exacerbated and made difficult by the fact that his family – his father in particular, has disowned him and refuses to engage with him or to support him in his current state. Also, the applicant has no means if returned to Fiji, to have access to anti-retroviral agents which assist him in living with his chronic illness and continuing with a productive and fulfilling life. Nor has the applicant available to him a wide network of psychological and social support services assisting him (as in Australia) on an ongoing basis to deal with his illness. These are harms intended to cause severe pain and suffering to the victim. Serious assaults including grievous bodily harm are another possibility if people are able to identify him as HIV positive. There are some socio-religious conservative cells within Fijian society which have no understanding of AIDS and consider it an abomination and those inflicted with it as persons punished by some divine will. Although there is no information for this that the Tribunal could access recent statements by certain personalities in government in recent times against LGBTI community activities is a cause for real concern. The applicant might well – in a personal sense – be vulnerable to some or all of these harms, and there is a real risk that he will suffer significant harm. This risk would exist in all the various areas of the country. The real risk is one faced by the applicant personally. The Tribunal also does not find that there is a possibility of avoiding the harm described by depending on family assistance.
For the reasons given above the Tribunal is satisfied that the applicant is a person in respect of whom Australia has protection obligations. Therefore the applicant satisfies the criterion set out in s.36(2)(aa).
DECISION
The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s.36(2)(aa) of the Migration Act.
Peter Vlahos
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
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.
…
36     Protection visas – criteria provided for by this Act
…
(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.
…

[2020] AATA 789

27 February 2020

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