1928362 (Refugee)

1928362 (Refugee) [2019] AATA 6213 (22 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1928362
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Nathan Goetz
DATE:22 November 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 November 2019 at 4:31pm
CATCHWORDS
REFUGEE – protection visa – Fiji – health – multiple physical and mental conditions – no or inadequate treatment available in Fiji – left Fiji due to proposed educational opportunities – country information – health and social services in Fiji – race– Indian-Fijian – claim of fear of harm on ground of ethnicity raised late – application for protection made after cancellation of resident return visa – request for referral for ministerial intervention not acceded to – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 417,499
Migration Regulations 1994 (Cth), Schedule 2
CASES
MZAAJ v MIBP [2015] FCCA
Ram v MIEA (1995) 57 FCR 565
SZTEQ v MIAC (2015) 229 FCR 497
SZTEQ v MIBP [2015] FCAFC 39
VSAI v MIMIA [2004] FCA 1602
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Fiji applied for the visa on 2 September 2019. The applicant was not interviewed by a delegate of the Minister. On 3 October 2019 the delegate refused to grant the protection visa.
On 8 October 2019 the applicant applied to the Tribunal for a review of the refusal decision. He attached a copy of the delegate decision with his review application form.
The applicant appeared before the Tribunal on 20 November 2019 to present evidence and arguments in support of his protection claims. He was represented by Mr [A].
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Refugee
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
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.
Complementary protection
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). 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.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration. The relevant country information report is that of 27 September 2017.
CONSIDERATION OF CLAIMS AND EVIDENCE
The evidence before the Tribunal consists of the department file, the Tribunal file and the applicant’s oral evidence that he provided at the Tribunal hearing. The Tribunal has had regard to all material put before the Tribunal, including the written submissions that the applicant’s migration agent provided prior to the Tribunal hearing.
The applicant is an [age] year old Fijian citizen who is currently in immigration detention. The applicant’s mother and sole [sibling] are in Australia and are citizens. His father passed away a couple of years ago. He is married and has two children but given his circumstances, his marriage is under considerable strain.
The delegate did not provide an immigration history of the applicant, but from the movement records and the applicant’s oral evidence, the Tribunal understands that the applicant left Fiji when he was [age] and travelled to [Country 1] to pursue educational opportunities. In 1996 he joined his parents who were in Australia and has remained permanently here since that time, although he has travelled back to Fiji on numerous occasions, with the last trip being in 2012.
The applicant initially visited Australia on a [visitor] visa and then remained here under what appears to be a [family] visa. He was eventually granted a [resident return] visa and finds himself in immigration detention because that visa was cancelled. The applicant told the Tribunal that he had been sentenced to 18 months imprisonment with a non-parole period of 6 months, and then placed into immigration detention where he has been for approximately two and a half years. Attempts to review the cancellation decision were unsuccessful at the Tribunal and at the Federal Court.
The applicant lodged his protection visa application using an online form where he wrote that his reasons for leaving Fiji were due to the “DFAT report, [Mental health condition 1], [Physical condition 1], [Mental health condition 2] and no meds in Fiji, have to import meds, no operating MRI, or doctors, my medical condition makes it a death sentence to go to Fiji. The DFAT report says it to be so”. The applicant wrote that he did not experience harm in Fiji, and although he wrote that he moved, or tried to move to another part of the country, he gave no details about this, other than to write “DFAT report”. When asked what he thought would happen to him if he returned to Fiji, he wrote “DFAT report”. He wrote that he thought he would be harmed or mistreated if he returned to Fiji because there was no medical equipment to treat him in Fiji and again referenced the DFAT report. He thought the authorities of Fiji could not protect him if he returned and again referenced the DFAT report. He wrote that he would not be able to relocate within Fiji to an area where he would not be harmed, and again referenced the DFAT report. He provided a copy of the most recent DFAT report for Fiji (27 September 2017) with his application for protection.
At the Tribunal hearing, the factual basis for the applicant claiming protection was clarified, with the applicant stating that the reason he left Fiji in 1996 was due to proposed educational opportunities in [Country 1]. The Tribunal understands that notwithstanding that the protection visa application put the applicant’s medical conditions as his reason for leaving Fiji, when taken into account that the applicant also wrote that he had never experienced harm in Fiji, the applicant’s claims are that he fears return to Fiji on the basis that he has [Mental health condition 1], and other medical conditions for which he will not receive treatment or adequate treatment. The migration agent’s submission also raises that the applicant, who has no family support in Fiji, will not have access to accommodation or other community support, nor does he have the financial resources or access to funds from family in Australia to provide for his day to day support in Fiji.
From the submission, written protection visa application (in which the applicant provided photographs of medical notes), and oral evidence, the applicant provided the following evidence in regards to his medical conditions:
The applicant has [Physical health condition 1], which is [a kind of] disease. He takes [Medicine 1] on a needs basis when his condition worsens but is otherwise not being treated, although he is hospitalised every few months due to this condition. He has utilised the services of a MRI 50 or 60 times in connection with this condition.
The applicant has a [Physical health condition 2].
The applicant suffers from [Mental health condition 2] which is associated with [abuse] perpetrated on him in [Country 1]. He was diagnosed with this [condition] about two years ago while he was in immigration detention and is currently prescribed [Medicine 2] which he has been on since his diagnosis.
The applicant suffers from [Mental health condition 1]. He was diagnosed three years ago while he was imprisoned and is currently prescribed [Medicine 3], which he has been on since his diagnosis.
The applicant suffers from [Physical health condition 3] for which he uses [Medicine 4] and [Medicine 5].
The applicant was previously a [drug] addict and is currently on [a treatment] programme.
The applicant has low [hormone] and has injections to remedy his [hormone] deficiency.
The applicant has previously had [Physical health condition 4] and [Physical health condition 5].
The applicant told the Tribunal that he could not return to Fiji because he has no family there. His whole family has moved to Australia. He told the Tribunal if was sent back to Fiji he would not get the medical assistance he required, suggested that the medications he required were not subsidized, the welfare system in Fiji was not sufficient and that he would only receive the medical treatment he needed once he was on ‘deaths door’. He told the Tribunal that in order to pay for accommodation and treatment in Fiji, he would need to work but his medical conditions meant that he was unemployable and could not work. With his limited financial means, he would have to make a choice about whether he eats in Fiji or whether he was able to pay for medication. He noted that going to the doctor in Fiji was expensive.
In relation to this family in Australia, he supposed that they could assist him with his living and medical expenses in Fiji, but said that he could not ask for them to do so. The applicant’s mother and [sibling] both attended the hearing and gave evidence that the family provides some support to the applicant while he is in immigration detention to pay for his phone, vitamins and clothing. Both his mother and [sibling] indicated their willingness to try and assist the applicant with the expenses he may encounter if he is returned to Fiji, although the Tribunal notes that these good intentions may not necessarily come to fruition, with his mother on a NewStart allowance and his [sibling] having [his/her] own financial obligations.
The applicant fears returning to Fiji because he will suffer as a result of his medical conditions.
The applicant claimed at the Tribunal hearing that healthcare is inaccessible to him because he was Indian Fijian.
The Tribunal has had regard to information about the Fijian healthcare system and the social welfare system when considering the applicant’s claims. A social assistance system applies to all citizens of Fiji which includes cash transfer schemes such as the payment of a regular allowance and other direct financial assistance (for example, food vouchers) and a few indirect transport schemes such as free bus services for people with disabilities[1]. According to the government of Fiji, its Poverty Benefit Scheme (PBS) targets those poorest of the poor and living in destitution[2]. The Fijian government’s budget for the PBS and food voucher system was increased in the 2017 and 2018 financial year[3]. The Fijian government funds various housing schemes, including the Housing Assistance and Relief Trust, which provides homes and assistance with the welfare of destitute people who have little or no regular source of income and rely on the Department of Social Welfare for financial assistance, and the Public Rental Board which provides rent subsidies[4].
[1] Social Security Administration, Office of Retirement and Disability Policy, Office of Research, Evaluation, and Statistics 2017, Social Security Programs Throughout the World: Asia and the Pacific, 2016 (Washington, DC: SSA Publication No. 13-11802, March), pp. 80-83 ‘Fiji’; UNICEF Pacific and Fiji Ministry of Women, Children and Poverty Alleviation 2015, Child-Sensitive Social Protection in Fiji: Assessment of the Care and Protection Allowance, February, pp. 50, 140-141.
[2] . The Fijian Government 2014, ‘Poverty Benefit Scheme Ensures Objectivity in Selection Criteria’, Media Press Release, 3 January, Kalouniviti M 2017, ‘Fiji Budget For 2017-18 Increases Spending By $459 Million’, Fiji Times Online, 29 June,
[4] UNICEF Pacific and Fiji Ministry of Women, Children and Poverty Alleviation 2015, Child-Sensitive Social Protection in Fiji: Assessment of the Care and Protection Allowance, February, pp.131-132 & 147; The Housing Assistance and Relief trust website, ‘About Us’ and ‘Hart Communities’ Public Rental Board [2015], Annual Report 2014 (Parliament of Fiji, Parliamentary Paper Number 62 of 2015, [document created 16/10/2015]), on Housing Authority of Fiji website , pp. 3, 19, 9, 14, 11 & 13.
There is a free and extensive government healthcare system that is generally available in Fiji, with public hospitals and clinics providing free health care including generalist and specialist services and hospitalisation[5]. The government has prioritised equity and access for the poor in its health services[6]. An MRI is shared between Suva Private Hospital and Colonial Ware Memorial Hospital, which is the major public hospital in Suva[7]. In Fiji there are specialist health care services include services for mental health such as community mental health teams and the St Giles Hospital which provides inpatient and outpatient services for mental illness[8]. There is a Free Medicine Scheme for people on low income services for people who suffer with mental illness[9] Anti-depressants and antipsychotic drugs used to treat schizophrenia and related conditions are among the medicines available under the free medical programme[10].
[5] Social Security Administration, Office of Retirement and Disability Policy, Office of Research, Evaluation, and Statistics 2017, Social Security Programs Throughout the World: Asia and the Pacific, 2016 (Washington, DC: SSA Publication No. 13-11802, March), pp. 81-82.
[6] UNICEF Pacific and Fiji Ministry of Women, Children and Poverty Alleviation 2015, Child-Sensitive Social Protection in Fiji: Assessment of the Care and Protection Allowance, February, p.147; DFAT Report at [2.24].
[7] Department of Foreign Affairs and Trade Country Information Report on Fiji, 27 September 2019 at 2.25
[8] Ministry of Health and Medical Services n.d. [current], ‘Healthy You. Mental Health. Where to get help’, Ministry of Health and Medical Services [2016], Annual Corporate Plan 2016, p.7,
[9] Ministry of Health & Medical Services n.d. [current], ‘Contact Us. Free Medicine Scheme’; DEPTFO News 2017, ‘How to Benefit from Government’s Free Medicines Programme: Akbar’, Fiji Sun Online, 16 February.
[10] Ministry of Health Fiji [Dr D G Chaplow] 2010, Guidelines of Drugs Commonly Used in Treating Mental Illness and Related Disorders, n.d., on [Fiji.] Ministry of Health and Medical Services website, pp. 4, 11, 15 & 27; Free Medicine Program’ [2016], [document created 8/11/2016], on [Fiji.] Ministry of Health & Medical Services website, at 2, 3, 49, 36, 107, 108, 27, 56, 72 & 21.
Methadone is listed on the Fiji Essential Medicines List[11] and notes its use in connection with the Guidelines of Drugs Currently used in treating mental illness and related disorders[12]. There is no information to suggest that a methadone programme as we would understand it in Australia being used to treat drug addicts in Fiji, although services are provided to drug addicts wanting to receive treatment at the St Giles psychiatric hospital in Suva[13]. A new Drug and Alcohol Unit was opened at that hospital on 6 November 2019[14], and that some counselling services are provided in Fiji by the Salvation Army, with St. Giles Hospital act as a referral stream, sending clients to The Salvation Army for specialist assistance[15].
[11] Fiji Ministry of Health and Medical Services, Fiji Ministry of Health and Medical Services, 'Fijian official urges stakeholders to fight against drugs with strategic solutions', Xinhua, 26 June 2019, 20191119141318; 'The new drug highway: Pacific islands at centre of cocaine trafficking boom', Lyons, K, The Guardian, 24 June 2019, 20190624094859; ''I've seen terrible, terrible violence': cocaine and meth fuel crime and chaos in Fiji', Lyons, K, The Guardian, 25 June 2019, 20191119103312. See also '80% of patients admitted at St Giles were involved with drugs', Fijian Broadcasting Corporation (FBC), 8 November 2019, 20191119102148
[14] 'PM: Hard Drugs, Alcohol Abuse A Major Concern For Fiji', Bolatiki, M, Fiji Sun, 7 November 2019, 20191119111203
[15] 'Salvation Army in Fiji', Salvation Army, n.d. (accessed 19 November 2019), 20191119104457
FINDING AND REASONS

The Tribunal finds that the applicant is a citizen of Fiji and no other country on the basis of the evidence he provided in his application for review, including an expired Fijian passport.
Although the Tribunal has not been presented with a comprehensive medical report detailing each of the applicant’s conditions, their date of diagnosis, and current treatment regimes, the Tribunal is satisfied from the oral evidence and medical material did provide demonstrates that the applicant suffers from the medical conditions he describes. It is clear that the applicant has complex medical needs and that his [Mental health condition 2], and interaction with the criminal justice system in Australia, stem from the [abuse] he described as occurring in [Country 1]. The Tribunal accepts the applicant’s evidence in this regard as credible, and notes that his evidence about his medical conditions was earlier raised in connection with his visa cancellation.
The issue in this case is whether the applicant because of his claims is either a refugee or a person who meets the criteria for complementary protection. The Tribunal also needs to consider whether the applicant is a member of the same family unit as a person who is a refugee or meets complementary protection and holds a protection visa.
Notwithstanding that the Tribunal has accepted that the applicant has the medical conditions he has outlined, and that he is being treated as he claims, ultimately the Tribunal has concluded that the decision under review should be affirmed.
Refugee
The Tribunal does not accept that there is a real risk of serious harm to the applicant on the basis that he will be denied medical services because he is an Indian-Fijian. The applicant’s evidence about this claim was vague and lacking in sufficient detail. The applicant spoke about the fact that Fijian Indians could not own land in connection with his claim of an inability to access healthcare, but provided nothing further in support of his contention. The Tribunal was not provided any independent evidence to support the proposition that healthcare or welfare in Fiji is denied to Indian-Fijians on the basis of their race. Indeed, the country information report provided by the applicant notes that DFAT assesses that Indo-Fijians face a low level of official and societal discrimination on the basis of their race/nationality. Although that same report notes that there were anecdotal reports of Indi-Fijians waiting for long periods of time at public hospitals when indigenous nurses were present, these anecdotes were not able to be independently verified. The Tribunal also considers the fact that the applicant had not previously raised this claim until the day of the hearing to demonstrate that the applicant is not genuine when he claims that his racial background would have any impact on whether he could access health services in Fiji. If the applicant genuinely believed that claim, the Tribunal is satisfied that they would have been raised in his written application, noting that he was able to provide (albeit briefly) reasons as to why he could not return to Fiji, none of which included his claim that his race would result in him being denied access to medical services. In addition, the submissions from the migration agent also did not raise this as an issue, which the Tribunal expects would have occurred if such a claim were a genuinely held belief by the applicant. The applicant told the Tribunal that the reason he did not raise this issue prior to the Tribunal hearing was because ‘the DFAT report said so’ and he believed the Tribunal would be aware of this issue. Tribunal does not accept the applicant’s explanation for failing to raise this claim earlier than the Tribunal hearing, and does not accept his genuinely fears that he will not receive services based on his race. The Tribunal finds that this claim was an embellishment of the applicant’s original claims in an attempt by the applicant to bolster his claims concerning his medical conditions, not because he genuinely held such a fear. It follows that the applicant’s fear in this regard is not well-founded.
When turning to the applicant’s claims that he will suffer serious harm because he will not be able to access medical services in Fiji to help with his medical conditions, and will be destitute because he cannot work and would not be able to secure housing, the Tribunal is not satisfied that this is the case. The Tribunal put to the applicant that Fiji had a reasonable health care and social welfare system, but the applicant disputed that any information about the services provided that was generated from the Fijian Government was false and not reflecting what was actually occurring. He noted a decrease in funding for health and welfare services because the Fijian Government is prioritising infrastructure spending. While the Tribunal may accept that the Fijian Government, as any government, may reduce spending in one area to concentrate on another, this does not equate to the Fijian Government, or indeed any government, making a deliberate decision to inflict serious harm on people because of a reduction in the availability of medical services. In regards to the applicant’s content that information about the Fijian health and welfare system should not be relied upon by the Tribunal because it is provided by the Fijian Government and it is false, the Tribunal does not accept that this is the situation, as there is no independent information before the Tribunal to suggest that this is the case.
For a well-founded fear of persecution to be made out, the persecution must involve conduct which is systematic, in the sense of being deliberate and premeditated[16], and discriminatory, in the sense that the persecutor is motivated to harm the applicant personally[17]. For both of those requirements connote a deliberate behaviour on the part of the alleged persecutor, rather than behaviour that is random or accidental.[18] In this case, the evidence before the Tribunal is that the applicant will be able to access health and welfare schemes to assist him managing his housing and his medical conditions, and there is no evidence before the Tribunal that if the applicant were unable to access health or social services, it is because there is a deliberate decision on behalf of the Fijian authorities to deny those services to the applicant or anyone else who has the applicant’s medical profile. The Tribunal accepts that the health and social services of Fiji may not be comparable to the quality and standard of services available in Australia, but this does not equate to the applicant being persecuted because of a lack of parity between the health and social service system between Australia and Fiji. There is nothing before the Tribunal to suggest that any deficiencies in the health and welfare systems in Fiji amount to persecution. The Tribunal is not satisfied that there is a real chance of serious harm to the applicant in Fiji now or in the foreseeable future on account of his numerous medical conditions or the fact that he would return to Fiji and find himself without family support or housing provided for him, as the country information makes it clear that support for the applicant’s medical conditions, and support for him to meet living expenses and housing will allow him to subsist in Fiji, although probably not to the same degree or comfort as that in Australia.
Conclusion
[16] VSAI v MIMIA [2004] FCA 1602; SZTEQ v MIBP [2015] FCAFC 39 (Robertson, Griffiths and Mortimer JJ, 24 March 2015) at [72]
[17] Ram v MIEA (1995) 57 FCR 565 at 568.
[18] SZTEQ v MIAC (2015) 229 FCR 497 at [72].
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).
Complementary protection
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). Ultimately, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji, there is a real risk that he will suffer significant harm now or in the foreseeable future for the following reasons.
Under s.36(2A)(a), a person will suffer significant harm if that person will be arbitrarily deprived of his or her life. Although there is no definition in the Act of ‘arbitrary deprivation of life’ and no express requirement for intention, the word ‘deprived’ may important an element of deliberateness. The courts have suggested that this kind of harm involves matters such as extrajudicial killings or excessive use of force rather than the consequences of scarce medical resources[19].
[19] MZAAJ v MIBP [2015] FCCA.
The Tribunal accepts that the applicant suffers from the medical conditions he claims. The Tribunal accepts that if the applicant were removed from Australia, his current treatment and services would cease, however the Tribunal is not satisfied that the applicant would not be able to access reasonable medical and welfare support if he were to be returned to Fiji so as to provide him with care that is available to all of the Fijian population who have the applicant’s health and welfare needs. However, even if the applicant was to hypothetically die in Fiji as a result of his medical conditions, that death is in no sense arbitrary because there would be no act of deprivation and there are medical and welfare services available in Fiji.
Additionally, even if the withdrawal of the medical assistance that he was currently receiving in Australia resulted in the applicant dying some point in the future in Fiji because the medical assistance he received was somehow inadequate and not comparable to that he received in Australia, this again would in no sense be arbitrary.
The second type of significant harm identified in s.36(2A) is that ‘the death penalty will be carried out on the non-citizen’: s.36(2A)(b). There is no evidence before the Tribunal that this would occur.
The legislation also provides in that for a person to suffer torture, cruel or inhuman treatment or punishment, degrading treatment or punishment (s.36(2A)(c), (d) and (e), there must be an intention to inflict such harm. The country information indicates that there is a health and welfare system in Fiji. While the Tribunal readily accepts that those systems may not be comparable to the level of care and support available in Australia. The Tribunal accepts that where there are deficiencies in the health and welfare system in Fiji, this may cause harm to people need the type of medical and welfare support as the applicant. However, there is no intention by the authorities to inflict harm by failing to provide the same services as those that would be provided in Australia.
The Tribunal, having considered the country information about the medical and welfare systems in Fiji, is not satisfied that the applicant would be arbitrarily deprived of his life if he returned to Fiji because the Tribunal is satisfied that the applicant would receive reasonable medical treatment and assistance for his myriad health problems. Further, even if the applicant’s medical conditions, particularly the [Physical health condition 1] was to result in [cancer] and result in his death (as claimed in the applicant’s written submission), the applicant’s death would in no sense be the type of arbitrary deprivation of life envisaged by the legislation.
Finally, s.36(2B)(c) of the Act provides that there is taken not to be a real risk that the applicant will significant harm if the Tribunal is satisfied that the real risk is one faced by the population of the country generally and is not faced by the applicant personally. In this regard, any deficiencies in medical or welfare systems in Fiji, are those faced by all citizens of Fiji, and not specifically the applicant. Accordingly, the Tribunal finds that the applicant’s claims do not relate to a real risk of harm that he would face personally. As such, there is taken not to be a real risk that the applicant will suffer significant harm.
Conclusion
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)(aa).
Member of the same family unit
Having concluded that the applicant is not owed protection obligations under s.36(a) or (aa), the Tribunal has considered whether the applicant satisfies s.36(2)(b) or (c) on the basis that he is a member of the same family unit as person who satisfies s.36(2)(a) or (aa) and holds a protection visa. There is no evidence before the Tribunal that this is the case.
Conclusion
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)(b) or (c).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Ministerial Intervention Request by the Applicant
At the Tribunal hearing, the applicant requested that in the event the Tribunal affirmed the decision not to grant the applicant a protection visa, the Tribunal consider referring the matter to the Minister under s.417 of the Act for the Minister to consider whether he should substitute the decision with a decision that is more favourable to the applicant. The applicant asked the Tribunal to do so because of the constellation of the applicant’s problems, such as his health problems, the likelihood that the applicant’s complexities have resulted from the trauma he suffered as a victim of [abuse], and the fact that his family, including his two children, are in Australia. The combination of these factors were said to warrant intervention.
The Minister has issued guidelines to govern the circumstances in which the Minister may consider exercising this power 11 March 2016 - Minister's guidelines on ministerial powers (s351, s417 and s501J). Those guidelines contain a section dealing with cases that should not be brought to the Minister’s attention because they are ‘inappropriate to consider’. Relevantly to this applicant, such cases include where the applicant has been refused a visa or had the visa cancelled on character grounds. The Tribunal understands ‘a visa’ to mean any visa, not ‘the visa’ in respect to the review decision.
Given this, the Tribunal has decided not to accede to the applicant’s request that the Tribunal refer the case to the Minister for consideration.
Nathan Goetz
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2019] AATA 6213

22 November 2019

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