1832684 (Refugee) - [2019] AATA 3744

1832684 (Refugee) [2019] AATA 3744 (6 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1832684
DIBP REFERENCE:  CLF2015/55809
COUNTRY OF REFERENCE:                  Fiji
MEMBERS:Deputy President Jan Redfern (Presiding)

Member Darren Renton
DATE:6 September 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection (Class XA) (Subclass 866) visa.
Statement made on 06 September 2019 at 5:21pm

CATCHWORDS:
REFUGEE – Protection (Class XA) (Subclass 866) visa – application for protection on basis the basis of the refugee and complementary protection criterion – applicant purportedly witnessed a murder by military men in Fiji in circumstances where the applicant was a child, the assailants took his identification card and made threats – evidence about the incident not previously provided by the applicant due to concerns regarding disclosure of the information and traumatisation – consideration of refugee criterion in s 36(2)(a) of the Migration Act 1958 – applicant found not to have a well-founded fear of persecution for reason of being a member of a particular social group nor actual or imputed political opinion – consideration of complementary protection criteria in s 36(2)(aa) of the Migration Act 1958 – no substantial grounds for believing that as a necessary and foreseeable consequence of removal to Fiji there is a real risk the applicant will suffer significant harm – no real risk applicant will be killed or harmed by former assailants or parties associated with them – no real risk applicant will suffer serious psychological harm amounting to significant harm within the meaning of s 36(2A) of the Migration Act – applicant found to not be a person in respect of whom Australia has protection obligations under s 36 of the Migration Act 1958 (Cth) – recommendation for Ministerial Intervention – decision under review affirmed
CASES:
1514384 (Refugee) [2015] AATA 3899
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
CHB16 v Minister for Immigration and Boarder Protection [2019] FCA 1089
CKX16 v Minister for Immigration and Anor (No.2) [2018] FCCA 2894
COH17 v Minister for Immigration & Anor [2018] FCCA 1656
Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v RespondentsS152/2003 (2004) 222 CLR 1
MZAEN & Ors v Minister for Immigration & Anor [2016] FCCA 620
MZZES v Minister for Immigration [2014] FCCA 758
NAVK v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCA 1695
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
SZRSN v Minister for Immigration and Anor [2013] FMCA 78
SZRSN v Minister for Immigration and Citizenship [2013] FCA 751
SZTAL v Minister for Immigration and Border Protection [2017] HCA 34
LEGISLATION:
Migration Act 1958 (Cth), ss 5(1), 36, 36(2)(a), 36(2)(aa), 36(2)(b), 36(2)(c), 36(2B), 36(2A), 36(2A)(d), 36(2A)(e), 36(2B) 5H(1)(a), 5H(1)(b), 5J(1), 5J(1)(a), 5J(2), 5J(2)-(6), 5J(4)(a), 5J(4)(b),5J(4)(c) 5J(5), 5K, 5L, 5LA, 5LA(2), 499
Migration Regulations 1994 (Cth), Sch 2
SECONDARY MATERIALS:
Amnesty International, ‘Beating Justice: How Fiji’s security forces get away with torture’ (2016) Constitution of the Republic of Fiji (2013)
Department of Foreign Affairs and Trade, ‘DFAT Country Information Report – Fiji (27 September 2017)
Department of Home Affairs, Procedural Advice Manual 3 (PAM3) ‘Refugee and Humanitarian - Complementary Protection Guidelines’
Department of Home Affairs, Procedural Advice Manual 3 (PAM3) ‘Refugee and Humanitarian - Refugee Law Guidelines’
Minister for Immigration and Border Protection (Cth), Ministerial Direction No.56 - Consideration of Protection Visa Applications, 22 June 2013

United States Department of State, 2018 Country Reports on Human Rights Practices: Fiji (13 March 2019)
Minister for Immigration and Border Protection (Cth), Ministerial Direction No.56 - Consideration of Protection Visa applications, 22 June 2013.
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
BACKGROUND

This is an application for review of a decision made by a delegate of the Minister for Immigration on 19 October 2015 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the ‘Act’).
The applicant is a 32 year old male. He was born in Fiji and is a Fijian national. In September 2000, when the applicant was 14 years old, he came to Australia with his mother and siblings on a Child (Class AH) (Subclass 101) visa. He returned to Fiji in December 2001 and lived with his father for approximately one year, after which he returned to Australia, continued to live with his family and completed his schooling. The applicant started drinking and using drugs a few years after his return from Fiji. In 2006, when the applicant was about 19 years old, he was convicted of stealing offences and given a fully suspended sentence. He was convicted of further offences, again with suspended sentences in 2009. In 2013, when the applicant was 27 years old, he was sentenced to two years imprisonment, with a non-parole period of one year before being released in May 2014. The applicant was sent a notice of intention to consider cancellation of his visa based on his criminal record. His visa was subsequently cancelled in August 2015 and he has been in immigration detention since this time.
In September 2015, the applicant made an application for protection. The only particulars provided were that the applicant would not feel safe because he was afraid he would be killed. Despite being pressed by the delegate and at a subsequent hearing on review to this Tribunal by the presiding Member, the applicant asserted he was not able to provide further detail about his claim. The applicant’s claim for protection was refused but on judicial review, his case was remitted by consent on a procedural fairness issue. The matter was remitted to the Tribunal, differently constituted, for reconsideration and it was during the hearing of his review that the applicant revealed, apparently for the first time, the nature of his claim for protection and the basis for his fears.
In summary, the applicant claims that on an afternoon in late 2002 while walking home from school he witnessed a Fijian military man, who had two bodyguards, slit the throat of another man with a machete in the suburb near Suva, Fiji. The applicant claims that the man who did the killing saw the applicant and grabbed him, went through the applicant’s schoolbag and found his wallet, which contained a proof of age card that detailed the applicant’s name. The applicant claims he was threatened. He returned home and did not tell his father about the murder. A few weeks after witnessing the murder, the applicant left Fiji and returned to Australia. He claims that he did not tell his family because of his fear following the threat and he has been traumatised by the incident. The applicant claims he has not been able to forget the incident. The applicant’s father passed away in June 2015 and he says he refused to return with his family to attend his father’s funeral because of his fears. The applicant claimed he has no immediate family in Fiji and fears he will be killed if he returns to Fiji.
In the Tribunal’s previous decision of 12 July 2016, the Tribunal accepted the applicant’s claims and the reasons for his prolonged silence over the years. The Tribunal also accepted that the applicant genuinely feared for his safety but was not satisfied there was a real chance the applicant would be harmed by the main protagonist some 14 years after the incident. Accordingly, the Tribunal affirmed the decision of the delegate.
The applicant sought a review of this decision and on 12 October 2018 the Federal Circuit Court remitted the matter to the Tribunal for determination.[1] The Court identified two jurisdictional errors, the first being that the Tribunal did not consider significant evidence that the main protagonist was associated with the army. The second error identified was that the Court found psychological harm may be suffered by the applicant on his return to Fiji and this harm may engage complementary protection provisions because, in short, an act in the past which has consequences in the future may satisfy the requirement that an applicant will be subjected to an act in the receiving country. The Tribunal erred in not considering this claim. This second ground raises a legal issue about the scope of the complementary protection provisions, which is addressed later in our reasons.
[1] CKX16 v Minister for Immigration and Anor (No.2) [2018] FCCA 2894 (Judge Riley).
In the present case the applicant appeared before the Tribunal on 12 March 2019 to give evidence and present arguments. The applicant was represented by his lawyer and registered migration agent, who provided written submissions and documents in support of his application prior to and following the hearing. Those submissions were helpful, well-articulated and clear. The representative also provided country information to support the claims.
RELEVANT LAW AND ISSUES FOR DETERMINATION
General principles
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’). The relevant statutory provisions have been extracted in the attachment.
An applicant for the visa must meet one of the alternative criteria in ss.36(2)(a), (aa), (b), or (c) of the Act. 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.
Subsection 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 themself of the protection of that country: s.5H(1)(a) of the Act. 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) of the Act.
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 the 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 of the Act, which are extracted in the attachment to this decision.
If a person fears persecution for one or more of the reasons mentioned in s.5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion), that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution: s.5J(4)(a) of the Act. Further, the persecution must involve serious harm to the person and systematic and discriminatory conduct: ss.5J(4)(b) and (c) of the Act. Subsection 5J(5) provides that instances of ‘serious harm’ include a threat to the person’s life or liberty, significant physical harassment or ill-treatment of the person and significant economic hardship that threatens the person’s capacity to subsist.
Where a person claims to fear being persecuted for reasons of their membership of a particular social group, the existence of such a group and the person’s membership of that group tis to be determined in accordance with s.5L of the Act. Section 5L provides that a person is to be a treated as a member of a particular social group (other than the person’s family) if a characteristic, other than a fear of persecution, is shared by each member of the group and the person shares, or is perceived as sharing, that characteristic. Further, that characteristic must be innate or immutable, or must be so fundamental to a member’s identity or conscience that the member should not be forced to renounce it, or must distinguish the group from society.
A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country: s.5J(2) of the Act. Subsection 5LA(1) provides that effective protection measures are available if protection against persecution could be provided to the person by either the relevant State, or a party or organisation (including an international organisation) that controls the relevant State or a substantial part of its territory, and that State, party or organisation is willing and able to offer such protection.
A relevant State, party or organisation is taken to be able to offer protection against persecution to a person if the person can access the protection, and the protection is durable and, in the case of protection by the relevant State, the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system: s.5LA(2) of the Act.
If a person is found not to meet the refugee criterion in s.36(2)(a) of the Act, he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of 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) of the Act (‘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.
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1) of the Act. A person will suffer significant harm if he or she 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 to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Subsection 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
‘Cruel or inhuman treatment or punishment’ for the purposes of s.36(2A)(d) is exhaustively defined in s.5(1) of the Act to mean an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or pain or suffering, whether physical or mental, is 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. The pain or suffering must be intentionally inflicted.
The final type of significant harm listed in s.36(2A) is degrading treatment or punishment: s.36(2A)(e) of the Act. Degrading treatment or punishment is exhaustively defined in s.5(1) of the Act to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.
According to the High Court in SZTAL v Minister for Immigration and Border Protection [2017] HCA 34 the meaning of intentionally inflicted and intentionally causing in the context of s.5(1) of the Act requires an actual, subjective intention on the part of a person to bring about the suffering by their conduct.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Mandatory considerations
In accordance with Ministerial Direction No.56,[2] made under s.499 of the Act, the Tribunal has taken account of policy guidelines prepared by the Department of Immigration – Procedural Advice Manual 3 (‘PAM3’) ‘Refugee and Humanitarian – Complementary Protection Guidelines’ and Procedural Advice Manual 3 (‘PAM3’) ‘Refugee and Humanitarian – Refugee Law Guidelines’ – and relevant country information assessments prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
[2] Minister for Immigration and Border Protection (Cth), Ministerial Direction No.56 - Consideration of Protection Visa applications, 22 June 2013.
The most recent report from DFAT is the Country Information Report for Fiji dated 27 September 2017. We have considered this report and other country information referred to by the applicant’s representatives. We have also considered the Department guidelines, such as the Complementary Protection Guidelines which contain the Department’s interpretation of the Act and provide examples of the circumstances which may or may not fall within the criteria set out in ss.36(2)(a) and (aa). To the extent that the Guidelines were relevant to the consideration of the decision under review, they were of limited assistance in the circumstances. Our analysis of this information and any relevant Guidelines is set out later in these reasons.
OUTLINE OF CLAIMS AND ISSUES FOR DETERMINATION
The applicant claims he has a well-founded fear of being persecuted under the refugee criterion in s.36(2)(a) as a member of a particular social group, being a witness to military atrocities, and on the grounds of his actual or imputed political opinion. The basis for this latter claim is said to arise from the political opinion of the assailants involved in the incident in 2002 and their assurance of military authority in Fiji, where there is a ‘culture of impunity’ according to country information from Amnesty International.[3] The applicant claims he would not be able to access protection from the State given any harm would emanate from State authorities, namely the military. The risk of harm identified extends throughout Fiji and as such, relocation within Fiji is not a viable option for the applicant. The harm identified is both physical and psychological; physical because of the risk that the assailants involved in the 2002 incident will harm him and psychological because of the fear he will face with the risk of this harm. It is contended the applicant’s subjective fear has an objective basis, supported by country information and the applicant’s evidence about what happened to him in 2002. In other words, there is a real chance he will be persecuted if he returns to Fiji and that risk extends to all areas in Fiji.
[3] See generally, Amnesty International, ‘Beating Justice: How Fiji’s security forces get away with torture’ (2016) Constitution of the Republic of Fiji (2013).

It is further contended that if the Tribunal is not satisfied the applicant meets the refugee criterion, the Tribunal should accept he faces significant harm, being arbitrary deprivation of life or cruel, inhuman or degrading treatment, or punishment if he returns to Fiji. This is because there is a real risk he will be killed or harmed by the individuals involved in the 2002 incident or, if the Tribunal is not satisfied of this, there is a real risk he will suffer psychological harm from his genuine subjective fear. The fear is not attendant on the mere fact of his removal but would be the consequence of the act perpetrated on him in 2002, which, it is claimed, is enough to engage the complementary protection obligations under s.36(2)(aa) of the Act.
Having regard to these submissions, the relevant issues for determination are as follows:
(1) Does the Tribunal accept the applicant’s claims about the events that are alleged to have taken place in 2002?
(2) If so, does the applicant meet the ‘refugee criterion’ in s.36(2)(a) of the Act? In particular, does he have a well-founded fear of persecution and is this for reasons of him being a member of a particular social group or his actual or imputed political opinion?
(3) If the applicant does not meet the refugee criterion, are there substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Fiji there is a real risk the applicant will suffer significant harm? In particular, is there a real risk he will be killed or harmed by his former assailants or parties associated with them and, if not, is there a real risk he will suffer serious psychological harm and would this harm amount to ‘significant harm’ within the meaning of s.36(2A) of the Act?
CONSIDERATION OF CLAIMS AND EVIDENCE
Does the Tribunal accept the applicant’s claims about the incident in 2002?
Consistent with the findings of the previous Tribunal, on balance, despite some reservations referred to below, we accept the applicant’s claims about the incident that he alleges took place in Fiji in 2002.
At the hearing before us, the applicant gave a detailed and credible account of what he says occurred in 2002.
According to the applicant, he was making his way home from school along a bush track near his father’s house and came upon three persons attacking a fourth individual who was on the ground. One of the attackers was an older man in military uniform. He was the main protagonist. He was accompanied by two others who were soldiers. The fourth man was being restrained on the ground by the two soldiers. The applicant said that he was forced to the ground by one of the soldiers. The fourth man’s throat was cut by a machete and the applicant witnessed this. After the murder of the man, the main protagonist, who was armed with a machete, threatened him. The applicant took him to be a senior person because the other soldiers appeared to defer to him. His wallet and identity card was taken from his school bag. They read the card and did not return the card or the wallet. The main protagonist said words to the effect “go, don’t say anything and don’t ever come back”. After this the assailants let him go and the applicant walked back to his father’s house. He did not run because he was scared they may chase him. He was in shock and did not tell his father what had happened to him. He was afraid to discuss the event with his father because of the threat and made arrangements with his parents for him to return to Australia as soon as possible.
The applicant gave evidence that he did not discuss the incident with anyone in his family because he was fearful of what might happen if this information became known. He was concerned for his father and for himself. He was also concerned about what may happen to his family if they returned to Fiji, which they did on a regular basis. The applicant said he did not speak about the incident and found it difficult to settle down when he returned to Australia. He could not forget the incident. The applicant says he did not settle into school and left. The applicant stated that he “felt lost in life” and fell into the wrong crowd of people. He began to drink and take drugs to help him deal with the issues. The applicant says he did not tell his family about his problems. He started to get into trouble with the police and was convicted of offences in 2006, 2009 and 2014.
The applicant was questioned about the details of the incident at length during the hearing before this Tribunal. He provided consistent, detailed particulars of what he said happened. The applicant said that he could recall the incident very well even after the significant period of time since its occurrence. While the applicant was not articulate when giving his evidence, he was able to relate details about what happened, where each of the individuals involved in the incident were and where he was positioned relative to them in graphic detail, often through gestures and actions.
The applicant explained why he did not discuss the incident with anyone until he was questioned by the Presiding Member at the previous Tribunal hearing. He said that he was afraid because of the threat that had been made and found the incident difficult to talk about.
Later, in giving his evidence, the applicant said that the main protagonist also said words to the effect “if you come back you will be killed”. This was included in the applicant’s statement but was not included in the applicant’s earlier evidence to the Tribunal. When giving this later evidence the applicant also said that the main protagonist said words to the effect “if you tell anyone else we will kill them”. This was not in the applicant’s statement or in his earlier evidence to the Tribunal.
While there are some inconsistencies in the applicant’s evidence about what was said to him by the main protagonist, the applicant’s evidence was generally consistent. The applicant’s evidence that the individuals involved in the incident simply let him go and that he remained silent for such a long time, while on the face of it seems implausible, is on balance credible. Relevantly, it is corroborated by other evidence and objective matters.
First, the Tribunal listened to the evidence given by the applicant in the previous Tribunal hearing. In that hearing, the applicant was initially reluctant to explain his claims but he was pressed by the Presiding Member, who explained to him the importance of telling the Tribunal why he feared harm in Fiji. Following this explanation, the applicant gave evidence about the incident which, while initially hesitant, was spontaneous and consistent. The Presiding Member questioned the applicant about what happened and why he did not tell anyone about the incident until the day of the hearing. The applicant provided evidence that was broadly consistent with the evidence he provided to this Tribunal. The overall impression of the evidence of the applicant given during the previous hearing was that his evidence was unrehearsed and credible.
Secondly, we were also persuaded by the applicant’s evidence and explanation as to why he did not raise this claim prior to the hearing before the previous member. The Tribunal questioned the applicant very closely about the incident and, in particular, the details of what happened. As noted, the applicant’s evidence was generally consistent and credible.
In his statement, the applicant said that the main protagonist stated that if the applicant said anything he would be killed. The applicant did not initially say this in his evidence to this Tribunal during the hearing and his explanation for why he did not do so was confusing. The applicant suggested that the main protagonist had spoken in Fijian and when he was giving his evidence to the Tribunal he did not include everything that was said exactly as it was said to him by the main protagonist. This is possible. We also take into account that the applicant may have been nervous during the hearing and was relating the details of a traumatic experience. However, when clarifying his evidence earlier in the hearing the applicant also said the main protagonist told him they would kill anyone who the applicant told about the incident. This was not in the applicant’s statement or his earlier oral evidence to this Tribunal at the hearing. This detail was only provided when the applicant was asked to clarify his evidence. We would have thought this was an important detail. The applicant’s explanation as to why he did not raise it in his statement was not convincing. On balance, we are not satisfied that these latter words were spoken. This does not, of itself, undermine the whole of the applicant’s evidence and or his credibility. It is possible that the applicant was seeking to advocate a position or embellish his story to explain his fear of returning. Ultimately, these inconsistencies are of little consequence because we accept the applicant has a subjective fear and that the effect of what the assailant’s words was to threaten the applicant so he would not repeat what happened to others.
The third issue that supports the applicant’s claim is that there is evidence from the applicant’s siblings and mother that after he returned from Fiji in 2002 the applicant seemed to change. The evidence of his siblings and mother was to the effect that the applicant was not communicative or happy and refused to return to Fiji for his father’s funeral. The applicant’s family was surprised about this. According to the applicant’s mother, when the applicant returned from Fiji he was “a totally different person”. She thought he may be struggling with puberty. All of the applicant’s family stated that they were unaware of the applicant’s claims about witnessing a murder in Fiji until the applicant’s evidence at the previous Tribunal hearing. We accept this evidence. While there may have been other reasons why the applicant’s behaviour changed when he returned from Fiji, the evidence from the applicant’s family is broadly consistent with the applicant’s claims.
Fourthly, there is evidence from Dr Peter Cook, clinical psychologist, in a report dated 5 March 2019 which is consistent with the applicant’s claims. Dr Cook opines that the applicant’s symptoms suggested the presence of post-traumatic stress disorder of moderate severity. Dr Cook states that it “appears likely” the condition relates to the applicant’s experience in Fiji where he reported to Dr Cook that he had witnessed a murder. On its own, this opinion is of limited weight because it is based on the applicant’s report of the event, which has not been independently verified by Dr Cook or any third party. It is also apparent that the opinion is based on a psychometric assessment made by Dr Cook following one interview with the applicant. Even though the report is of limited weight, it is broadly consistent with the claim that the applicant experienced a traumatic event during his early life.
Fifthly, the applicant’s silence for an extended period, even in circumstances where he was disadvantaged by not revealing his claims, is consistent with a long held fear of harm about returning to Fiji and what would happen to him in Fiji if he returned. Relevantly, this is not a case where the applicant did not raise this issue at all prior to the previous hearing. In fact the applicant raised this issue, albeit in cryptic terms without giving particulars, at an early stage of the application process.
It is relevant that the applicant referred to a fear of being killed at the time of his original application and in a subsequent interview with the delegate. In his application for protection, the applicant stated “I don’t feel safe at all because I’m afraid I’ll be killed”. When the applicant was interviewed by the delegate in October 2015 he refused to provide particulars of his fears and the following is recorded by the delegate in the decision:
The applicant insisted that, if he is returned to Fiji, ‘he will be dead’. However, he refused to provide any further details about who or why would harm him in Fiji or whether the potential perpetrators have any connection with Fijian authorities. He merely stated that the conflict in which he fears being killed is of a personal nature. I explained to the applicant that I cannot properly assessing his claims for protection unless he provides detailed information in regard to his claims indicating that his application for a Protection visa will be refused if he does not do so. The applicant still declined to provide any details.
The delegate refused the application for protection and the applicant sought review of this decision to the Tribunal. In the first hearing before the Tribunal, differently constituted, the Tribunal noted as follows in its decision of 1 December 2015 at [15] to [17]:
15.I explained to the applicant that I had to make a decision based on the claims that he had put forward. He reiterated that if he goes back he will get killed. I asked if he could tell me why he thought this and he said he could not really tell me that. I asked if this was because he did not know or could not say and he said probably both.
16.I asked if he had been charged, convicted or had committed any crimes in Fiji. He said no, that he was only a kid when he left. I noted that he had claimed to have experienced harm in the past in his application and asked if he could tell me about that. He said no, he could not share that with me.
17.I asked if he believed the Fijian authorities would protect him from the claimed harm. He said they would not. I asked him why he believed this and he said that he could not give me that reason.[4]
[Emphasis added]
[4]1514384 (Refugee) [2015] AATA 3899 (Member Sean Baker).
The applicant’s evidence at the first Tribunal hearing is consistent with the evidence he gave to this Tribunal about his subjective fear of harm. This is not a case where the applicant has only just raised concerns. He has been consistent about the nature of his fear since he lodged his application for protection. While the applicant did not provide evidence to particularise the basis for those fears until the second hearing, he has given a reason for his silence. For the reasons previously outlined, that explanation is plausible. The applicant’s evidence at the hearing before this Tribunal was consistent with his evidence at the previous Tribunal hearing and was sufficiently detailed to provide a credible account of the incident.
However, there are aspects of the applicant’s evidence that seem implausible. For instance, it is difficult to believe that assailants who were capable of killing a civilian would allow the applicant to leave. Against this, the applicant was young at the time and the assailants may have been satisfied he could be silenced by threats. It is also difficult to believe that this would happen in broad daylight on a track, albeit a bush track. We therefore accept there may be doubt about the veracity of the applicant’s claims.
The process of fact finding in circumstances where there may be doubt was discussed by the Federal Court in Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719 (Sackville J) at [62] to [64]:
62 In this context, it is not always possible for the decision-maker to be satisfied as to whether alleged past events have occurred with certainty or even confidence. When the [Refugee Review Tribunal (‘RRT’)] is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred, it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred might constitute a failure to undertake the required reasonable speculation in deciding whether there is a "real substantial basis" for the applicant's claimed fear of persecution. Similarly, if the non-occurrence of an event is important to an applicant's case (for example, the withdrawal of a threat to the applicant) the possibility that the event did not occur may need to be considered by the decision-maker even though the latter considers the disputed event probably did occur.
63 Although the "What if I am wrong?" terminology has gained currency, I think, with respect, that it is more accurate to see the requirement discussed in [Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259] and [Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559] as simply an aspect of the obligation to apply correctly the principles for determining whether an applicant has a "well-founded fear of being persecuted" for a Convention reason. The reasonable speculation in which the decision-maker must engage may require him or her to take account of the chance that past events might have occurred, even though the decision-maker thinks that they probably did not. In the language of s 476(1)(e) of the Migration Act, a failure to do so may constitute "an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found".
64 In my view, there is no reason in principle, and nothing in the reasoning of the High Court, supporting a general rule that the RRT must express findings as to whether alleged past events actually occurred in a manner that makes explicit its degree of conviction or confidence that the findings are correct. In Guo itself, the findings were not expressed this way, yet the joint judgment considered it was enough that the RRT appeared to have no doubt that the probability of error was insignificant. Moreover, had the Court intended to impose such an extraordinary burden on the RRT, it might have been expected to say so.
[Emphasis in original]
In summary, while we have some doubts about the truth of the applicant’s claims, the surrounding evidence is generally supportive of the applicant experiencing some traumatic event prior to his return to Australia. His evidence was consistent and is broadly plausible with country information about the political instability and violence involving the military at around that time. Accordingly, we accept the applicant’s claim that he witnessed a Fijian military man kill an individual near his father’s house in late 2002, that the assailants took his identification card, the main protagonist made threats to him and that since that time he has been fearful of returning to Fiji. We also accept that the applicant did not previously provide evidence about the incident because he was concerned about disclosing it to others and he was traumatised by the incident.
Does the applicant meet the refugee criterion?
In order to meet the refugee criterion under s.36(2)(a), the Tribunal must be satisfied the applicant has a well-founded fear of persecution, namely that there is a real chance the applicant will be persecuted and that this fear of persecution is based on a refugee nexus. The refugee nexus must be the essential and significant reason for the persecution and the persecution must involve serious harm and systemic and discriminatory conduct: refer s.5J of the Act.
In this case, it is alleged the applicant has a well-founded fear of persecution because of his membership of a particular social group or because of his actual or imputed political opinion. The particular social group identified by the applicant’s representatives is being a ‘witnesses to military atrocities in Fiji’ or, in the alternative, harm by reason of the political opinion of the assailants.
We are not persuaded there is a refugee nexus based on the political opinion of the main protagonist. Assuming it is accepted the main protagonist had a political opinion, it is not clear how the threat to the applicant and his fear of harm is directly attributable to that political opinion. There is no evidence why the individual was killed, how this relates to a political opinion or whether it is alleged the murder and threat to the applicant were politically motivated. The fear seems to be based on witnessing a murder, not the political opinion, either actual or imputed, of the applicant. It is implicit in s.5J of the Act, that it is the political opinion of the person who is alleged to be persecuted or liable to persecution that creates the relevant refugee nexus.

While it is not free from doubt, we are prepared to accept that being a witness to a murder by the military or military persons in authority may fall within the parameters of membership of a particular social group within the meaning of s.5L because there is country information to the effect that there is an identifiable group of citizens in Fiji who have witnessed murders or crimes by the military.
We accept the applicant has a fear of returning to Fiji because he believes he will or may be targeted and killed by the military official who threatened him in late 2002. Based on the available evidence, we are satisfied the applicant did not return to Fiji because of this fear, that he has not spoken about the incident because of his fear and he genuinely believes that he will not be safe if he returns to Fiji.
The question is whether we are satisfied there a real chance the applicant will face persecution if he returns to Fiji by reason of having witnessed a murder by an unknown individual by a Fijian military man in late 2002.
It is submitted that the applicant faces significant harm. We take this submission to also mean serious harm, in the form of physical harm, attacks and reprisals by the former assailant and psychological harm attendant upon the threat made to the applicant’s life in late 2002. There are different considerations in relation to both forms of harm alleged. The first is fear of physical harm by the assailants or the main protagonist, if the applicant returns to Fiji. If we are satisfied there was a real chance of physical harm, this would clearly fall within the refugee criterion. The second harm alleged is psychological harm attendant upon the previous threat to the applicant’s life. The contention is that the applicant would suffer psychological harm in returning to Fiji because of the previous traumatic event he experienced and this is in itself sufficient to engage the refugee criterion. We deal with both contentions below.
Is there a real chance of physical harm or attacks on the applicant?
One of the critical questions that must be determined is whether we are satisfied there is real chance the applicant will face persecution, which must involve serious harm and systemic and discriminatory conduct, if he returns to Fiji.
A ‘real chance’ is one that is not remote, insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.
According to the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (at p.572):
….Conjecture or surmise has no part to play in determining whether a fear is well-founded. A fear is "well-founded" when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation.
[Emphasis added]
It is submitted we should accept there is evidence the main protagonist was a senior ranking officer in the military in 2002 and that the applicant was threatened by the officer. It is further submitted that the period following 2000 was marked by a time of serious political turmoil in Fiji following a successful civilian coup lead by ethnic nationalist Mr George Speight. In May 2000, Fiji’s then President, Ratu Sir Kamisese Mara, was forced to stand down by military commander, Commodore Frank Bainimarama, and a military state of emergency was declared with Commodore Bainimarama later declaring himself to be President of Fiji. It is submitted that the period immediately following the coup of 2000 was characterised by widespread bloodletting and reports from the time indicate the brutality of the period. While general elections were held in 2001, it is submitted that the military maintained a significant involvement in Fiji in politics and civilian life, with Commodore Bainimarama staging a further successful coup in 2006. He remains Fiji’s Prime Minister.[5] Commodore Frank Bainimarama was re-elected in November 2018.
[5] Refer to the submissions dated 7 March 2019 at p.9.
These matters are said to provide evidence that there is a real chance the applicant will face persecution through physical harm, or at least threats, if he returns to Fiji.
We accept there is country information in the DFAT Country Information Report which is broadly consistent with the applicant’s submissions about the political instability and influence of the military in Fiji from 2000.
The DFAT Country Information Report states at [5.4] to [5.7] as follows:
5.4 As of late 2014, following the elections, and as a result of the return to constitutional government, the rule of law in Fiji has generally improved in comparison to the situation prior to the elections. For most ordinary citizens, the police and military are effective and impartial. However, the actual ability of institutional checks and balances on government power (including parliament, the judiciary and the media) to constrain government action is limited. As set out below, the independence of the judiciary has diminished and this may affect state protection in certain circumstances.
5.5The Republic of Fiji Military Forces (RFMF) is among the largest and most sophisticated militaries in the Pacific. Fiji is a significant contributor of troops to [United Nations] peacekeeping missions, including in the Middle East. Its military was estimated to have 3,500 personnel in 2012. This is just over one per cent of the population, which is a comparatively high ratio of military personnel to population. Ethnically, the military is overwhelmingly indigenous Fijian (probably over 90 per cent, although official figures are unavailable). It is widely considered to be a stronghold of indigenous Fijian power. However, there are also some examples of Indo-Fijians in senior positions.
5.6 Following the 2006 coup, the RFMF has played a central role in government. RFMF Commander, Josaia Voreqe Bainimarama, was simultaneously interim Prime Minister between 2006 and 2014. Senior RFMF officers and former officers were appointed to key positions across government. Following elections in late 2014, the RFMF (and its alumni) remains the most influential organisation in Fiji’s bureaucracy.
5.7 Credible contacts report that military personnel are also involved in monitoring and occasional harassment of opposition political leaders, [Non-Government Organisations] activists, and the media. However, this appears to have lessened in 2016 and 2017, compared to the previous reporting period immediately following elections.
However, it is further noted at [2.43]:
Fiji is generally stable and secure. The 2006 coup did not affect the country’s overall crime rate. Elections in 2014 were calm and free of violence. Security services, including police and military, are well resourced and maintain effective control of the country.
Relevant to the applicant’s claims, it is noted at [4.1]:
DFAT is aware of allegations of extra-judicial killings by security services in Fiji. These include the deaths of military officers who were members of the Counter Revolutionary Warfare Unit following the 2000 coup. There are also past allegations of individuals being taken to the barracks and tortured. In some cases, some allegedly died as a result of their injuries.
We also note that the United States Department of State has recently reported that:
The government investigated some security forces officials who committed abuses, and prosecuted or punished officials who committed abuses elsewhere in the government, however, impunity was a problem in cases with political implications.[6]
[6] United States Department of State, 2018 Country Reports on Human Rights Practices: Fiji (13 March 2019)
There is country information that the military has remained an influential force in Fiji and that Fiji’s current Constitution provides immunities for government action between 2006 and 2014, which, according to Amnesty International, “reaffirms immunities for events surrounding the 2000 coup”.[7] However, there is no evidence that this immunity extends to criminal acts more generally and a review of the relevant provisions of the Fijian Constitution makes it plain that the immunity relates to coup related actions.[8] We accept that former military officers have been appointed to key positions across the government after 2006.[9]
[7] Amnesty International, ‘Beating Justice: How Fiji’s security forces get away with torture’ (2016) at p.5.
[8]Constitution of the Republic of Fiji (2013), ss.155 - 158.
[9] Refer Department of Foreign Affairs and Trade, ‘DFAT Country Information Report – Fiji (27 September 2017) at [5.6].
Having regard to the country information referred to above, we find that the Fijian military has maintained influence in Fiji since the coups in 2000 and 2006. We are also satisfied there is evidence that some military officials have committed abuses with impunity where there are potential political implications.
Based on the information before us, we are satisfied that the applicant witnessed a murder of a man by a military person in 2002. According to the applicant, the main protagonist was in his early to late 40s and the other two assailants were in their 20s. The applicant says that the younger assailants appeared to defer to the main protagonist, who was the older man. The applicant believed the main protagonist was the leader and he was the person who was holding the machete. The fact the main protagonist was accompanied by two other assailants who were soldiers and appeared to defer to him may support the applicant’s claim that the main protagonist was an official or senior but this is speculative. There is no evidence the main protagonists was a senior ranking official, although we accept he was likely to be more senior than the other assailants because of his age. There is no evidence about the identity of the main protagonist, why he killed the other man, whether the he is still alive, whether he lives in Fiji and whether he currently has any position of influence within the military or the government. None of these matters can be inferred from the evidence or the available country information. We have not been referred to any evidence about reporting of the incident in 2002 or shortly thereafter and whether it was, for instance, reported as a high-profile killing or incident of note.
At best, the only evidence before us suggests that the murder was an unreported or unsolved murder by a military person. There is no evidence about the reason for the killing and whether it was politically motivated or based on personal issues. The fact the main protagonist was accompanied by two soldiers does not of itself suggest the killing was politically motivated or that it was related to the 2000 coup which was over two years before the alleged murder. The DFAT report refers to “allegations of extra-judicial killings by the security services” and specifically refers to the deaths of military officers who were members of the Counter Revolutionary Warfare Unit following the 2000 coup.[10] However, there is no evidence from the applicant that the man who was killed was a military officer. Moreover, the timing of the murder appears to be inconsistent with the reported timeline for the violence and instability. The alleged killing was over two years after the 2000 coup and well before the 2006 coup. While Martial Law was declared in July 2000, Mr Laisenia Qarase was appointed as acting Prime Minister and was elected to that role in August 2001 following general elections.[11] There was a further coup in 2006 but there was no country information in the DFAT Country Information Report or provided by the applicant to the effect that there was political instability and politically related violence in late 2002.
[10] Ibid at [4.1].
[11]Refer Department of Foreign Affairs and Trade, ‘DFAT Country Information Report – Fiji (27 September 2017) at [2.6] – [2.7].
There is information in the DFAT Country Information Report that Fijian passports are issued to those who have Fijian citizenship through birth, registration and naturalisation.[12] Fijians who have lost or do not have a Fijian passport must apply for a Certificate of Identity, which is “a one-way travel document into Fiji only”.[13] On arrival in Fiji, border officials check the details of the Certificate of Identity if there is no passport and the bearer is required to go to the immigration office to apply for a new passport.[14] All inbound passengers are checked against the various electronic systems in Fiji and immigration services and border security have installed integrated digital and biometric passport systems to enhance the level of security at the border.[15] As such, we accept that if the applicant returns to Fiji he will either need to obtain a passport or proceed through the Certification process and he may come to the attention of the government officials at the airport. Fijian authorities therefore would be likely to become aware of the return of the applicant. However, we are not satisfied that this, of itself, would expose the applicant to a real chance of persecution by the military official who originally threatened him or by any associates of the main protagonist.
[12] Ibid at [5.26].
[13] Ibid at [5.27[.
[14] Ibid at [5.30].
[15] Ibid at [5.32].
To be satisfied of this, we would need to be satisfied that there is a real chance the main protagonist is still alive or in Fiji, that he would be concerned about the applicant returning and reporting him to law enforcement agencies, that the main protagonist holds a position of power or influence in the military or with the government and would seek to use that influence (or the sense of impunity) to harm the applicant and the applicant would not be protected by the State.
We are not satisfied of these matters. The incident happened 17 years ago. There is no evidence provided to the effect that this crime was either reported or notable. There is no evidence as to the identity of the assailants or the person who was killed. There is no evidence that the main protagonist was sufficiently concerned that he subsequently made threats or even enquiries of the applicant’s family in Fiji. In fact there is evidence to the contrary. When asked whether his father and other members of his family in Fiji had been threatened by military officers, the applicant said that they had not. Moreover, if such threats or enquiries had been made it would be expected that those threats would have been reported to the applicant’s family. The applicant’s family gave evidence to the effect that they were surprised by his evidence about witnessing a murder at the hearing before the previous Tribunal and they did not refer to any evidence suggesting that such threats or enquiries had been made. It would also seem unlikely that the assailants have kept details of the applicant’s identity or his identity card for 17 years, particularly when the assailants did not make any threats or enquiries of the applicant’s father or family in Fiji around the time of the alleged incident or at any time thereafter. We accept the applicant will come to the attention of Fijian officials when he re-enters Fiji and it may be recorded that his visa was cancelled because he had a criminal record but on the evidence before us there is nothing to suggest he will be monitored by the military or security officials in Fiji or that his return would be otherwise be considered as exceptional or noteworthy.
In conclusion, we are not satisfied that there is a real chance the applicant will face physical harm by the military person who originally threatened him or any associates of this person, if he returns to Fiji. We accept the applicant has a fear of persecution through physical harm or threats by the military person but we are of the view that the risk the applicant will face physical harm, while understandable because it is grounded on a long held fear starting when the applicant was a teenager, is mere speculation. There has been a period of relative stability since 2014 and, as noted, DFAT reports that Fiji is “generally stable and secure”. The police and military are well resourced and maintain control over the country. We are not satisfied that there is a real or substantial basis for this fear at this time in relation to events that occurred 17 years ago.
Psychological harm
It is submitted that psychological harm attendant on the threat to the applicant 17 years ago is sufficient to engage the refugee criterion.
We accept that there is a real chance the applicant will suffer psychological harm on his return to Fiji because of his long held fear and possible post-traumatic stress. We also accept that such harm could be characterised as serious harm within the meaning of s.5J(5) of the Act. The question is whether this engages the refugee criterion for the purposes of s.36(2)(a) of the Act.
In our view it does not.
To engage the refugee criterion under s.36(2)(a), the applicant must satisfy the Tribunal that he or she has a well-founded fear of persecution and this fear must have a refugee nexus. While the persecution must involve serious harm, which may include psychological harm, the persecution must take place in the receiving country. Otherwise the requirement that there be a real chance of persecution “if the person returned to the receiving country” would have no meaning. While the word “persecution” is not specifically defined in the Act, it must involve “systematic and discriminatory conduct” by another person or persons. This connotes an act or omission. To be “persecuted” describes the act of persecution. It is therefore clear from s.5J(1)(b) that the well-founded fear of persecution, must emanate from an act or omission which takes place in the receiving country. It is also clear that that the persecution is forward looking, given the use of the phrase “would be persecuted” in s.5J(1)(b) of the Act.
In this case, it is alleged that the refugee nexus is a well-founded fear of persecution for reasons of the applicant’s membership of a particular social group.
If an applicant is able to establish that there is a real chance psychological harm would be perpetrated in the receiving country as an act of persecution based on one or more of the refugee reasons, this would engage the refugee criterion. However, psychological harm which is attendant on a threat made years previously, albeit in the receiving country, is not persecution in the receiving country. There is no act of persecution, which is implicit in s.5J(1)(b), and any harm arises from the person’s reaction to the previous trauma or threat. Subsection 36(2)(a), together with s.5J, directs attention to a well-founded fear of persecution if the person is returned to the receiving country. It does not focus on persecution in the past, although this may be relevant for a decision-maker in predicting what may happen in the future. Relevantly, the question of whether Australia has protection obligations to a person is to be assessed at the time of the decision by reference to the foreseeable future and not some event in the past.
Accordingly, we reject this claim.
There was a claim made by the representative for the applicant in their submissions after the hearing that there was sub-standard care in Fiji linked with under-funding and the stigmatisation of mental health disorders in Fiji.[16] The claim was not made on the basis of the refugee grounds, this much is apparent from the submission which expressly refers to “an alternative basis for the applicant’s claims for protection pursuant to s.36(2)(aa)”.[17] Notwithstanding there was no claim made, the question is whether we should consider this claim because it may be taken to be a claim arising on the material before us.
[16] Submission dated 5 April 2019 pp.5 - 8.
[17] Submissions dated 5 April 2019 p.8.

As observed by Reeves J in CHB16 v Minister for Immigration and Boarder Protection [2019] FCA 1089 at [27] to [30], the Tribunal is obliged to consider and articulate a claim that is raised “squarely” on the material available. This was further explained by his Honour by reference to the decision of Allsop J (as his Honour then was in NAVK v Minister for Immigration Multicultural and Indigenous Affairs [2004] FCA 1695 at [15] as follows:
A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.[18]
[18] Quoted with approval by the Full Federal Court in Minister for Immigration and Citizenship v SZRMA (2013) 219 FCR 287 at [70] (Mansfield, Gilmour and Foster JJ).
When an applicant has a representative and there is a submission of this nature raised after the hearing that was not the subject of a specific claim before, during or after the hearing, it would seem unduly speculative for the Tribunal to consider and attempt to formulate such a claim to establish a refugee nexus. For instance, would the claim that has not been made be that the applicant is a member of a particular social group within the meaning of s.5L or some other particular social group or is there a claim that such stigmatisation, together with the applicant’s mental health issues, is racially based? As stated by Allsop J, this not only requires the discovery of the potential claim but would require the Tribunal to undertake further analysis and enquiry to assess the legitimacy of any such claim. Under funding and stigmatisation of mental health issues is not an uncommon problem. The submission was originally made during the hearing in support of the contention that the applicant was vulnerable. In the post hearing submissions there were no contentions made or evidence provided making the claim, or about the basis for such a claim and any relevant refugee nexus. The submissions were based on the complementary protection criterion and we have therefore confined our consideration to this claim, which is referred to later in our reasons.
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) of the Act.
Does the applicant meet the complementary protection criteria?
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the complementary protection criterion in s.36(2)(aa).
It is submitted that the complementary protection criterion is engaged on three bases. The first and second grounds were the subject of submissions before and during the hearing. The third ground was raised in post hearing submissions.
First, it is submitted that if the applicant returns to Fiji there is a real risk he will face arbitrary deprivation of life or cruel, inhuman or degrading treatment and punishment through an attack or threats by his former assailants. For the reasons already outlined, we are not satisfied that there is a real risk of this.
Secondly, it is submitted that psychological harm feared by the applicant would engage the complementary protection criterion because the harm is not attendant on the applicant’s removal but rather his removal to the receiving country where he previously faced harm and trauma. It was conceded by the applicant’s representative that the act of removal, and any psychological harm resulting from this removal, would not engage complementary protection.[19]
[19] See submissions dated 7 March 2019 at p.18 referring to the decisions of COH17 v Minister for Immigration & Anor [2018] FCCA 1656; MZAEN & Ors v Minister for Immigration & Anor [2016] FCCA 620 and SZRSN v Minister for Immigration and Citizenship [2013] FCA 751.
We accept there is a difference but we are not persuaded that psychological harm attendant on previous trauma engages the complementary protection criterion. Our reasons follow.
The applicant’s representative refers to a number of Federal Circuit Court decisions as authority to support their contentions. In summary, it is contended that Judge O’Dwyer in MZZES v Minister for Immigration [2014] FCCA 758 at [29] accepted that “there are circumstances where a threat, in itself, constituted significant harm”. It is further submitted that Judge Riley followed this in the judicial review of this case in CKX16 v Minister for Immigration & Anor [2018] FCCA 2894 and found (at [22]):
It seems to me that the particular circumstances of this case are such that the threat could be caught by the statutory description, to use the words of MZZES. Consequently, I consider that the issue was raised, both expressly and on the materials, and, subject to the Minister’s further arguments which are discussed below, the issue had to be considered by the Tribunal.
[Emphasis in original]
In CKX16, Judge Riley found that an act in the past which has consequences in the future which may thereby engage s.36(2)(aa) and explained her reasoning process for so concluding as follows at [23] to [32]:
23.The Minister’s second argument in relation to ground 1 was that the definition of significant harm is forward-looking, and requires the cruel or inhuman act to occur in the future. The authority cited by the Minister for that proposition was Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559 and Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1. Those cases obviously preceded the introduction of the complementary protection regime. It seems to me that they are of no assistance in the present context, save for the obvious requirement that an applicant faces a real chance of harm in the future.
24.However, the question at present is whether it would be sufficient for the applicant to face a real chance of harm in the future, namely, severe mental pain or suffering, as a result of actions in the past, namely, a gruesome murder in the applicant’s presence and a threat to kill him if he returned to Fiji.
25.The applicant, without going into any detail, submitted that the act causing the harm could occur in the past, provided that the harm itself occurred in the future.
26. Paragraph 36(2)(aa) of the Act requires that, relevantly:
...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...
27.That provision obviously requires the harm (the severe mental pain or suffering) to occur in the future but says nothing about when the action causing the harm (the threat) must occur.
28. Subsection 36(2A) of the Act relevantly provides that:
A non-citizen will suffer significant harm if ... the non-citizen will be subjected to cruel or inhuman treatment or punishment ...
29 Section 5 of the Act relevantly provides that:
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 ... .
30.Inserting the relevant part of the definition of cruel or inhuman treatment or punishment into s.36(2A) of the Act makes that provision read:
A non-citizen will suffer significant harm if... the non-citizen will be subjected to an act or omission by which... severe pain or suffering, whether physical or mental, is intentionally inflicted on a person...
31.Inserting that statement into paragraph 36(2)(aa) of the Act would make the provision read:
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 be subjected to an act... by which... severe pain or suffering, whether physical or mental, is intentionally inflicted on a person…
32.It seems to me that a person will be subjected to an act in the future if the person suffers the consequences of the act in the future, even if the act itself is in the past. For example, a person going to Chernobyl next week will be subjected to an act (consisting of a nuclear meltdown that occurred over three decades ago) by which pain or suffering (in the form of high levels of radiation) is inflicted on the person next week.
33.Even if I am wrong about that, it seems to me, applying the Project Blue Sky principles, that the Parliament must have intended to give complementary protection for future harm suffered in consequence of past actions. There is no conceivable policy reason to carve out from the complementary protection regime future harm that was caused by actions that occurred in the past. Consequently, I do not accept the Minister’s second argument on ground 1.
[Emphasis in original. Footnotes omitted]
In reliance on this decision, the applicant’s representative submits that while s.36(2)(aa) is forward-looking and is directed at the reasonably foreseeable consequences of significant harm constituted by an act by which severe pain or suffering is inflicted, the relevant “act” is not confined to a point of time. As an action in a threat is continuing and persists until it is either withdrawn or realised. In this case, the threat was not finite and the applicant was told that he would be killed if he “ever” returned.
We accept the applicant’s evidence that he was threatened. We accept the threat was open-ended and could have been construed to be continuing. We also accept the applicant has a long held and fear of returning to Fiji and he may face further psychological harm if he returns. There is evidence the applicant, who was young and inexperienced, was understandably traumatised by the incident and, critically, did not obtain any treatment or counselling for this until later in his later years. We accept this as had an impact on his return to Fiji is likely to have a further impact on his mental health.
The difficult question is whether previous threats and trauma which manifest in psychological harm both in Australia and, more particularly, in the receiving country engages complementary protection.
This is an important issue because from time to time claims are made arising from earlier conflicts or persecution in countries where, by the time the matter falls for determination, the circumstances in the country have changed. In these cases there may be no or little doubt about the veracity of the claims. If the applicant has faced physical harm, threats and trauma it is very likely that any psychological harm sustained as a result of the trauma would continue, unless it could be properly treated and resolved, and would be likely to be exacerbated by returning to the place where the trauma originally occurred.
In CKX16, her Honour found that when a person suffers a consequence of a past act in the future this falls within s.36(2)(aa) of the Act. It appears that this interpretation does not require the past act to be related to an act in the receiving country, as long as the consequences of the act give rise to harm in the receiving country.
However, the reasoning in CKX16, appears to be inconsistent with the decisions of Mansfield J in SZRSN v Minister for Immigration and Citizenship [2013] FCA 751 and the decision below of Federal Magistrate Driver, as he was then, in SZRSN v Minister for Immigration and Anor [2013] FMCA 78. It also appears to be inconsistent with clear meaning of the relevant provisions.
The harm that must be suffered is “significant harm” which, as her Honour recognises, requires that a claimant “will be subjected to… an act or omission”: refer at [30] – [32]. Psychological harm which is a consequence of a previous act cannot be an “act or omission” as contemplated by s.36(2A) because the definition requires that the act or omission take place in the future. In our view the words in s.36(2A), as informed by the definitions in s.5(1), are clear.
In the Federal Court decision of SZRSN, Mansfield J, in referring to the definitions for cruel or inhuman treatment and degrading treatment in s.5(1), noted (at [47]) that:
only an “act or omission” will fall within either of the above definitions. Being separated from one’s children is, in the present context, not an act or omission but a consequence of an act.
In the Federal Magistrates Court decision of SZRSN, Driver FM, after referring to the introduction of the complementary protection scheme, stated (at [61] – [65]) as follows:
61.First, the language of s.36(2)(aa) of the Migration Act makes reference to Australia’s “protection obligations” owed in respect of the non-citizen. As stated above, the purpose of the provision is to provide a statutory scheme that gives effect to those obligations. In relation to the claims of the applicant, the obligation invoked is the non-refoulement obligation implied under Articles 2 and 7 of the [International Covenant on Civil and Political Rights]: that is, as the Human Rights Committee enunciated, the obligation (on a State) not to extradite, deport, expel or otherwise remove a person from their territory, where there are substantial grounds for believing that there is a real risk of “irreparable harm ... either in the country to which removal is to be effected or in any country to which the person may subsequently be removed”.
62.It is clear from this comment that the non-refoulement obligation is an obligation to afford protection to a non-citizen where the harm faced is that which arises in the receiving country. The non-refoulement obligation under international law does not operate to afford protection from harm by a State to a non-citizen from that State itself. While it is no doubt true that any harm stemming from the applicant’s separation from his children in Australia would occur in New Zealand if he is removed there, the same would be true in any country to which the applicant is removed. The harm stems from his removal from Australia, not his presence in any particular other country.
63.Secondly, the “exceptions” in s.36(2B) of the Migration Act (which limit the circumstances in which a finding of “real risk” of significant harm for the purposes of s.36(2)(aa) may be made) expressly refer to harm “in a country”. That country is necessarily the receiving country if the circumstances pertaining to relocation (s.36(2B)(a)) and State protection (s.36(2B)(b)) are to have any application. Thus, if the risk of harm claimed by the non-citizen is, as suggested in the present case, the risk of degrading treatment as a consequence of removal from Australia (where his children reside), then the prospect of relocation to another area of Australia, or protection from a public authority, would be nonsensical.
64.Thirdly, if the relevant act were considered to be that of being removed, then s.36(2)(aa) would require that the Minister be satisfied that there are 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 be removed. This circularity suggests that the relevant act in the definition of “degrading treatment” cannot be the act of removal itself.
65.Fourthly, in determining whether forced separation from children constitutes “degrading treatment”, it cannot be accepted that “forced separation”, which is ancillary to the return of the non-citizen to the receiving country, is an act that is “intended to cause” extreme humiliation which is unreasonable. That is, “forced separation” is the consequence of removal, and a consequence cannot be said to have an intention to cause a result (which it itself constitutes). Even if one views the relevant act as “removal” (such that removal itself constituted the “degrading treatment”) it cannot be said (in the absence of evidence) that the act of removal is perpetrated by the State with the intention to cause extreme humiliation that is unreasonable. It would have to be demonstrated, as a matter of evidence, that the Australian Government intends to cause the non-citizen extreme humiliation by returning them to the receiving State.
[Original emphasis removed and emphasis added.]
We have extracted the reasoning in full because the applicant’s representatives make a submission about the effect of this reasoning and the Federal Court’s apparent endorsement of it.
His Honour accepted the reasoning of Driver FM, which he rearticulated at [48] and found at [49]:
In my view, that reasoning is not shown to be erroneous. An interpretation of the legislation that incorporates removal from one’s family by the Australian government as “significant harm” would be an extremely strained reading, and one not in accordance with the clear intention of Parliament in enacting the complementary protection criterion. That intention was to honour Australia’s non-refoulement obligation. In short, the appellant has failed to identify or demonstrate any error in the application of the term “significant harm” by the Federal Magistrate.
The applicant’s representative seeks to distinguish the decision of the Federal Court by submitting that “SZRSN should not be read to endorse a universal distinction between an act and the consequences of an act.”[20]
[20] Refer written submissions dated 5 April 2019 at p.4.
It is further submitted that, in referring to that part of the reasoning of Driver FM at [65] which focuses on forced separation as a consequence of removal, that:
This aspect of the primary judges reasoning is upheld by Mansfield J, when his honour found that being separated from one’s children is, in the present context, not an act or omission but a consequence of an act.
In the particular context of removal from family in Australia, it may be said that the psychological harm which would follow in the receiving country was a consequence of an act, not a relevant act which might fall within the definition of cruel, inhuman or degrading treatment and thus attract complementary protection obligations at s 36(2)(aa). This is specifically because the psychological harm is not intentionally inflicted upon a person, as required by the definition of cruel, human inhuman or degrading treatment at s 5(1) – it could not be said that the Australian authorities intended to inflict psychological harm upon a non-citizen by removing them from Australia
But the distinction between an act and its consequence cannot be drawn in this case, with the act in question is a threat to life. The act is not merely physical in nature – the mere iteration of words of threat – at the creation of a mental state in the victim which is convinced of the reality of the threat. Psychological harm is thus endemic to the nature of the act, not its mere secondary consequence. In this case the applicant would be subjected to an act, being a threat to his life, as a necessary and foreseeable consequence of his removal from Australia to Fiji.[21]
[21] Ibid.
It is clear from the decision of Mansfield J, when read in its entirety, that his Honour accepts the reasoning of Driver FM which includes the references we have highlighted about harm taking place in the receiving country. While the decision of Mansfield J in the Federal Court primarily focussed on the meaning of “a necessary and foreseeable consequence” of removal, both the Federal and the Federal Magistrates Courts considered this meaning in the context of the definition of “significant harm” taking place in the receiving country. Given the references to an act or omission in the definitions for cruel or inhuman treatment or degrading treatment in s.5(1), it is implicit the Federal and Federal Magistrate Courts accepted that an act or omission for the purposes of “significant harm” must take place in the receiving country and by necessary implication be an act that occurs after removal from Australia. It is also implicit that Mansfield J and Driver FM concluded that the consequences of an act in the receiving country did not (and presumably could not) engage the definition for significant harm.

The applicant’s representatives seek to distinguish SZRSN by saying it has narrow application. We accept that neither case opines on the specific issue of whether an act in the past could be an act in the future for the purposes of those definition sections of ss.36(2A) and 5(1) nor on whether the future consequences of an act in the past could engage the provisions. However, we do not accept that this is a meaningful distinction given the reasoning in both SZSRN decisions. While we accept that the decisions in SZSRN turn on the question of whether the act of removal (and thereby the separation of the applicant from his family in Australia) engaged complementary protection, the essential line of reasoning of Driver FM and Mansfield J must have broader application. Their reasoning is to the effect, first, that any act or omission is forward-looking and must necessarily occur in the receiving country and, secondly, but perhaps most relevantly for the purposes of this case, that it was necessary for there to be an “act or omission” to fall within the definition for cruel or inhuman treatment and degrading treatment in s.5(1) and, as clearly stated by Mansfield J, the consequence of an act does not fall within the definition.
The applicant’s representatives seek to characterise the reasoning in CKX16 as authority along the following lines. First, for the proposition that an act in the past can represent a continuous act into the future which can thereby be suffered in the receiving country. Secondly, that psychological harm is itself part of an act that is sustained in the receiving country. We do not consider that CKX16 is authority for either of these propositions.
The submissions do not address the fundamental issue about the clear meaning of ss.36(2A) and 5(1). Subsection 36(2)(aa) directs attention to the question of whether there is a real risk that a claimant will suffer significant harm, as exhaustively defined by s 36(2A), as a necessary and foreseeable consequence of removal from Australia. A non-citizen will suffer significant harm if the person will be subject to the types of harm enumerated in ss.36(2A)(a) to (e), which are further defined in s.5(1) to be an “act or omission”.
Thus, as Riley J observes in CKX16 the question is whether a person will be subjected to an act in the future if the person suffers the consequences of the act in the future, even if the act itself is in the past. While her Honour concludes that this would engage s.36(2A) and therefore s.36(2)(aa), we prefer the authority of Mansfield J in SZSRN where his Honour made an important distinction between an act and the consequence of an act: at [47]. We also note that when s.36(2A) is read with s.5(1) the clear meaning is that the non-citizen will be subjected to an act where suffering is intentionally inflicted. This is inconsistent with suffering harm from a previous act.
We also reject any suggestion that the principles in Project Blue Sky would be authority for such a broad interpretation.[22] The process of construing s.36(2)(aa) begins with the statutory text and the text must be considered in its context. Objective discernment of the context may be made through extrinsic material, the legislative history and the purpose and policy of the legislation However, extrinsic material cannot be relied upon to displace the clear meaning of the text.[23] In our view, ss.36(2A) and 5(1) are clear in their terms. To engage s.36(2)(aa) an applicant must satisfy the Tribunal that there is a real risk he or she will suffer significant harm in the receiving country and this means an act or omission taking place in the receiving country. This cannot be constituted by an act in the past or the future consequence of an act in the past. Psychological harm is a mental state and is not an “act” but rather an illness which is manifest, in this case, by reason of a previous act.
[22] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.
[23] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41.
The contention that the threat made to the applicant 17 years ago is a continuing act which, in effect, will come to fruition when the applicant returns to the place of the original trauma, is novel. The act must be the physical act, in this case being the threat made 17 years ago. In our view, the mental health issues that arise from the threat are a consequence of the act. Any harm arising in Fiji is a consequence of the trauma from the act. A psychological response to being returned to the location where the traumatic event occurred is not an act in itself. As stated by Reeves J in CHB16 (agreeing with Collier J in CSV15 v Minister for Immigration and Border Protection [2018] FCA 699) at [65] to [68], the harm described in s.36(2A) is a harm perpetrated “by others”.[24]
[24] See also Minister for Immigration and Citizenship vMZYYL (2012) 207 FCR 211; [2012] FCAFC 147 at [18] – [20] (Lander, Jessup and Gordon JJ); Minister for Immigration and Border Protection vSZMTA (2019) 93 ALJR 252; [2019] HCA 3 at [45] (Bell, Gageler and Keane JJ).
Accordingly, we reject the submission that the psychological harm, which we accept may be suffered by the applicant because of his subjective fear of returning to Fiji, engages s.36(2)(aa) of the Act.
There were further submissions made about the adequacy of the mental health care and facilities in Fiji in response to the Tribunal’s request for country information about the mental health facilities available to the applicant if he returns to Fiji.
In the submissions provided by the applicant’s representatives after the hearing, it was contended that being subjected to poor or inadequate mental health facilities, or alternatively, discrimination or stigmatisation by the public at large in Fiji would enliven protection obligations under s.36(2)(aa) of the Act.[25] As already noted, this was not a claim made at the time of the hearing and therefore was not discussed at hearing. By letter dated 5 August 2019 the Tribunal sought clarification of the applicant’s claim. In particular, the Tribunal requested submissions on how it was contended that this was significant harm within the meaning of s.36(2A) of the Act given the authority of the High Court in SZTAL. Broadly speaking, SZTAL is authority for the proposition that the definitions for “cruel or inhuman treatment or punishment” and “degrading treatment” in s.5(1) require an actual, subjective intention on the part of a person to bring about the suffering by their conduct.
[25] Submissions dated 5 April 2019 at p.8.
In a response dated 23 August 2019, the applicant’s representative clarified that it was not contended that sub-standard care and under-funded mental health facilities where the applicant may be detained would cause significant harm within the meaning of s.36(2A) of the Act.[26] It is accepted that this argument is “untenable” in light of SZTAL.[27]
[26] Submissions dated 23 August 2019 at p.1.
[27] Ibid.
The submission is to the effect that abuse and discriminatory mistreatment from mental health facility staff and others may amount to “significant harm”. It is also submitted that the applicant may face “forms of targeted discrimination, harassment and violence as a person suffering illness on return to Fiji”.[28] In support of this claim the applicant relies on the thesis of Natasha N. McDonald, ‘A “St Giles Case”: Negotiating Mental Illness, Treatment and Adverse Impact of Stigma in Suva, Fiji’ dated October 2015 and a publication by the United Nation Development Program (‘UNDP’), ‘Youth Champs for Mental Health: Building Inclusive and Empowered Communities’.[29] The applicant refers to extracts from both the thesis and the UNDP publication.
[28] Ibid.
29 Natasha N McDonald, A ‘St Giles Case’: Negotiating Mental Illness, Treatment and the Adverse Impact of Stigma in Suva, Fiji (October 2015) < United Nation Development Program, SCEFI Emblematic Stories -Youth Champs for Mental Health: Building Inclusive and Empowered Communities, United Nation Development Program < >.
The thesis of Ms McDonald commences with a story that made international news headlines in 2013 about a woman who was found chained in a shed behind her family home because her family believed she was possessed by the devil. She was later diagnosed with schizophrenia and subsequently hospitalised. The story motivated the author to study the understanding and treatment of mental illness in Fiji.
In her thesis, Ms McDonald notes that according to reports from the World Health Organisation (‘WHO’) in 2010 three quarters of the world global burden of mental health is located in underdeveloped or developed countries yet only 20 per cent of this population had access to the world's mental health resources. Ms McDonald also notes that “mental health problems have become a global health concern, contributing to one of the 10 leading causes of disability worldwide”.[30] She also observes as follows:
Fiji, considered a low income country, is one of the 18 member countries committed to the Pacific Island Mental Health Network (PIMHnet), which is a sub-branch of the larger GMH initiative, focusing on addressing mental health issues for the Pacific region (WHO 2013). In order to reduce psychiatric morbidity within the country, Fiji is committed to de-institutionalising mental health services and the training of non-professionals in mental health concerns. The World Health Organisation and the GMH movement have both been pivotal in re-establishing a focus around mental illness and mental health within Fiji.[31]
[30] Natasha N McDonald, A ‘St Giles Case’: Negotiating Mental Illness, Treatment and the Adverse Impact of Stigma in Suva, Fiji (October 2015) at p.6.
[31] Ibid at p.7.
Ms McDonald describes the traditional methods of treatment of mental illness and stigmatisation of mental illness in Fiji.[32] She recounts specific stories of poor treatment and abuse of people with mental health issues and the stigma attached to the St Giles Psychiatric hospital. The thesis not only draws on the Fiji experience but research more generally on mental illness and the attitude of others. For instance, the author refers to research in Australia about the desire for “social distance” from persons with mental health conditions perceived as being more dangerous, like schizophrenia.[33] The thesis focuses on mental health issues in the cultural context and the author concludes:
My research, which was facilitated through various mental health services also introduce me to the totalising nature of stigma for many individuals who had been diagnosed and treated within St Giles, or worse, admitted. Stigma is the biggest barrier to mental health services, with many fearing simply being associated with the hospital.
However a greatly overlooked area of adverse impacts of stigma is the role intense public stigma has on the individual…
…Advocacy work within Suva is growing and this hopefully will provide better outcomes in the future for individuals who suffer from mental illness. While the reality of stigma is undeniable, it is not totalising.[34]
[32] Ibid at p.41.
[33] Ibid at p.57.
[34] Ibid at p.64.
The UNDP report referred to in the submissions is not a report but rather a publication which is said to provide “emblematic stories” and outlines a program being undertaken in Fiji known as ‘Youth Champs for Mental Health’. The eight-page document sets out a summary of the need for the program and details the nature of the program. The document records, in an executive summary, as follows:
Mental health survivors in Fiji form disempowered and vulnerable groups suffering many forms of violence that goes undocumented. Such reports include families who lock up mentally ill children and leave them unattended to incidents of discrimination by uniformed personnel and government officials. Stigma attached to people living with mental illness is borne out of misconceptions that stem from cultural and superstitious beliefs, as a result of which they face discrimination and are isolated from most communal gatherings.
The source for the information in the executive summary is not detailed, nor is the basis for the statement about “incidents of discrimination by uniformed personnel and government officials”.
The difficulty in relying on the thesis and the UNDP document to support the proposition advanced by the applicant’s representatives that there is a real risk subjective intentional harm may be inflicted on the applicant if he returns to Fiji is that these documents do not provide a detailed analysis of the nature and extent of the alleged abuse and stigmatisation. This is not surprising as this is not the purpose of these documents. The thesis focuses on mental illness and cultural attitudes in Suva. Ms McDonald discusses attitudes to mental illness more broadly and the impact of stigmatisation and ‘self-stigma’ on patients with mental health issues. She recounts interviews with patients about the stigma of mental health and, on occasion, stories of abuse by family members.[35] She does not recount abuse by staff in facilities but rather discusses the general discrimination in the community and attitudes to in relation to mental illness which on occasion were expressed by staff. Many of the stories and discussions she recounts in fact suggest empathy and concern by staff. When the whole of the thesis is reviewed, Ms McDonald presents a nuanced opinion about the impact of mental illness and she notes follows:
Stigma evidently exists in varying intensities in these intensities are influenced by various contextual factors. Additionally the impact that stigma has on the individual depends on the context within which the individual finds himself. For example a mentally ill individual who has a supportive family is less vulnerable than a homeless individual. Alternatively a patient with mild depression can leave his or her life largely undisrupted seems to avoid being subject to ridicule and harassment of a patient who was known as having been diagnosed with schizophrenia.[36]
[35] Ibid at p.52.
[36] Ibid at p.58.
The UNDP publication summarises what is identified as a problem in Fiji and focuses on the solutions. There is no detailed analysis to support the statements made or the conclusions reached.
The DFAT report does not refer to or identify mental illness as a source of discrimination or raise the issue of “significant harm” in terms of cruel, inhuman or degrading treatment or punishment. This does not mean mental illness and its treatment is not an issue in Fiji. We accept the evidence from WHO referred to in the thesis about the inadequate funding for mental health in the Pacific more generally. We accept that there is evidence of ill-treatment and abuse in Fiji based on the lack of understanding and stigmatisation of mental illness. We also accept that there may be problems in Fiji with the use of traditional treatments. However, we have not been provided with evidence that there is widespread or systemic intentional abuse of people with mental illness in Fiji. For instance, the evidence in the thesis about the families who abused family members with mental illness was to the effect that the treatment was part of a misguided attempt to treat or based on a lack of understanding about mental illness. Relevantly, the thesis does not report any incidents of systemic abuse by government.
Having regard to this evidence and the submission made, the question is whether there is evidence the applicant will face a real risk of significant harm if he returns to Fiji within the meaning of the s.36(2A) of the Act.
We accept there is a real risk if the applicant is returned to Fiji where he has little familial support and where he has had no connections for much of his adult life his mental health condition may deteriorate. According to the DFAT Country Information Report, health services are widely available through the public system: at [2.24]. We accept that the treatment the applicant may receive in Fiji may not be the same level he would have received in Australia. Against this, there is evidence that he would receive treatment given there are facilities available and that the Fijian government, while recognising concerns about stigma and mental health, are working on improving the delivery of mental health services. This is also recognised by Ms McDonald in her thesis where she states:
The latest change around mental health in Fiji in the last decades is the growing awareness around mental illness and mental health services. Recent efforts within Fiji have concentrated on the promotion of awareness and combating the stigma and fear surrounding mentally ill individuals and mental health services. Non-government organisations such as Youth Champs for Mental Health have run campaigns around stopping the silence around the stigma…
…
Furthermore, this growing demand for the provision of mental health care has seen the spread of biomedical frameworks of mental issues to more rural areas of Fiji.[37]
[37] Ibid at pp.12 - 13.
Based on the evidence provided, we are not satisfied there is a real risk the applicant will suffer significant harm through subjective intention to harm as a result of his mental illness. There is no evidence that treatment of people with mental illness is intended to harm and while there may be instances of abuse by members of the community, in particular family members who do not understand the illness, there is no evidence this is widespread or condoned by government officials. There is no evidence, nor do we understand there to be a contention, that mental health sufferers are deliberately stigmatised or punished or subjected to inhuman treatment in mental health facilities. Relevantly, there is no evidence to the effect that authorities in Fiji have the practice of inflicting pain and suffering on mental health patients in mental health facilities without any therapeutic purpose. Nor is there evidence to suggest the applicant would be subject to family abuse. While the applicant’s immediate family is in Australia, there is evidence he has extended family in Fiji. It is not apparent whether he is close to that family but nor is there evidence that he would be exposed to harm by them or by antiquated attitudes to mental illness. There is evidence his immediate family return to Fiji frequently and, given the statements received by the Tribunal, it is clear his family are supportive of him, although we accept this will more difficult if he is in Fiji.
Having regard to the evidence and submissions provided and judicial authority on this issue, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.
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 ss.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 (Class XA) (Subclass 866) visa.
RECOMMENDATION FOR MINISTERIAL INTERVENTION
Under s.417 of the Act the Minister may substitute a more favourable decision if it is in the public interest to do so.
Having had regard to the unusual circumstances in this case, we make a recommendation that consideration be given to referring this case to the Minister for intervention under s.417 on the basis that this case appears to raise unique or exceptional circumstances.[38]
[38] Refer Procedural Advice Manual 3 (‘PAM3’) ‘Act – Ministerial powers – Minister’s guidelines on ministerial powers (s345, s351, s391, s417, s454 and s501J)’.

The applicant has lived in Australia since he was 14 years old. He experienced trauma in Fiji and on his return to Australia following this incident, the applicant appears to have gone off the rails. There is evidence that this related to his previous experience of trauma, for which he did not seek or receive treatment. The applicant did not raise these issues at the time his visa was cancelled. It is unclear to us how this matter proceeded as we were not provided with this information but it appears that the applicant lost a vital opportunity, albeit from his own actions, in putting forward his case. His family reside in Australia and he has now spent over four years in detention. There is evidence that the applicant’s mental health issues will be exacerbated by returning to Fiji and that the facilities available may be inadequate. His family, who are permanent Australian residents, will face hardship. These are matters that may make the applicant’s case unique and may raise compassionate and compelling reasons for intervention in accordance with the Guidelines.
Jan Redfern
Deputy President

Darren Renton
Member

ATTACHMENT - Extract from Migration Act 1958
5(1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)that is not inconsistent with Article 7 of the Covenant; or
(d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)that is not inconsistent with Article 7 of the Covenant; or
(b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)for the purpose of obtaining from the person or from a third person information or a confession; or
(b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)for the purpose of intimidating or coercing the person or a third person; or
(d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:    For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:    For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
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36Protection visas – criteria provided for by this Act
(1A)An applicant for a protection visa must satisfy:
(a)both of the criteria in subsections (1B) and (1C); and
(b) at least one of the criteria in subsection (2).
(1B)A criterion for a protection visa is that the applicant is not assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security (within the meaning of section 4 of the Australian Security Intelligence Organisation Act 1979 ).
(1C)A criterion for a protection visa is that the applicant is not a person whom the Minister considers, on reasonable grounds:
(a) is a danger to Australia's security; or
(b) having been convicted by a final judgment of a particularly serious crime, is a danger to the Australian community.
Note:For paragraph (b), see section 5M.
(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.
Ineligibility for grant of a protection visa
(2C) A non-citizen is taken not to satisfy the criterion mentioned in paragraph (2)(aa) if:
(a) the Minister has serious reasons for considering that:
(i) the non-citizen has committed a crime against peace, a war crime or a crime against humanity, as defined by international instruments prescribed by the regulations; or
(ii) the non-citizen committed a serious non-political crime before entering Australia; or
(iii) the non-citizen has been guilty of acts contrary to the purposes and principles of the United Nations; or
(b) the Minister considers, on reasonable grounds, that:
(i) the non-citizen is a danger to Australia's security; or
(ii) the non-citizen, having been convicted by a final judgment of a particularly serious crime (including a crime that consists of the commission of a serious Australian offence or serious foreign offence), is a danger to the Australian community.
Protection obligations
(3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
(4) However, subsection (3) does not apply in relation to a country in respect of which:
(a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.
(5) Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that:
(a) the country will return the non-citizen to another country; and
(b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.
(5A) Also, subsection (3) does not apply in relation to a country if:
(a)   the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and
(b)   the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.
Determining nationality
(6) For the purposes of subsection (3), the question of whether a non-citizen is a national of a particular country must be determined solely by reference to the law of that country.
(7) Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act.
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