1928362 (Refugee)

The Administrative Appeals Tribunal considered the case of a Fijian citizen who applied for a protection visa after his resident return visa was cancelled and he was placed in immigration detention. The applicant, who had been living in Australia since 1996, claimed that his multiple physical and mental health conditions meant he could not receive adequate treatment in Fiji, and that his medical condition would make returning to Fiji a "death sentence." He also referenced a Department of Foreign Affairs and Trade (DFAT) report in support of his claims.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa under section 36(2)(b) or (c) of the Migration Act 1958. This required the Tribunal to determine if Australia had protection obligations towards the applicant, specifically whether he was a refugee or would suffer significant harm if returned to Fiji. The Tribunal also considered the applicant's late-raised claim of fear of harm on the grounds of his ethnicity.

The Tribunal applied the principles outlined in Ministerial Direction No. 84, the Refugee Law Guidelines, and the Complementary Protection Guidelines, as well as country information from DFAT. It noted that a person is not considered to have a well-founded fear of persecution if effective protection measures are available or if they could reasonably relocate to an area of the country where there is no real risk of significant harm. The Tribunal found that the applicant had not established a well-founded fear of persecution or a real risk of significant harm, particularly as his claims regarding harm in Fiji were largely based on the DFAT report and he had not provided specific details of any harm experienced or feared on ethnic grounds. The Tribunal also considered the applicant's request for referral to the Minister for intervention under section 417 of the Act, but declined to do so, noting that the Minister's guidelines suggest such cases, particularly those involving visa cancellations on character grounds, are inappropriate for consideration.

The Tribunal affirmed the decision not to grant the applicant a protection visa.