2011992 (Refugee)

2011992 (Refugee) [2023] AATA 813 (9 February 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2011992
COUNTRY OF REFERENCE:                   Fiji
MEMBER:Katherine Harvey
DATE:9 February 2023
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 February 2023 at 12:50pm

CATCHWORDS
REFUGEE – protection visa – Fiji – quadriplegic – access to the health care – quality of health care – capacity of the local hospital – intermittent electricity supply – complementary harm – arbitrary deprivation of life – subject to degrading treatment – internal relocation – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB (2013) 210 FCR 505
SZDCD v MIBP [2019] FCA 326
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 on 26 June 2020 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Background
The applicant is a [age]-year-old man who claims to be a citizen of Fiji.
He last arrived in Australia on a tourist visa [in] February 2015. He was unlawfully in Australia from 20 February 2016 until he was granted a Bridging visa E on 30 October 2018.
On 22 September 2018, the applicant had a motor vehicle accident that resulted in a cervical spinal cord injury. The applicant is a quadriplegic with some use of his arms, as observed during the hearing.
He applied for a protection visa on 14 May 2019.
Claims
In his application, the applicant made the following claims.
He left Fiji to visit his sister, to meet and help educate his nieces on Fijian tradition and culture and to expose himself to the great opportunities and developments that Australia showcases through its multicultural society. He comes from a tiny village, where life and daily living is still very primitive.
He did not experience harm in Fiji or try to move to another part of the country as he has not returned to Fiji since February 2015.
He would not mind returning in good health to Fiji as it is his home. Unfortunately, a road accident resulted in his total disability and to return to Fiji would be a deprivation of life. He is confident that over time with specialised medical treatment he will be able to recover from his quadriplegic situation to live an independent life, but this is only possible in Australia. In Fiji life becomes meaningless as there are no support services for patients like him, general mobility is limited as buildings and roads do not have provisions for disabled people and there are no specialised treatments to assist his recovery. His medical condition requires specialised treatment that is not available in Fiji.
He believes that if he returns to Fiji he will experience significant harm due to deprivation of life due to the non-availability of specialised medical care and support for trauma. While there may not be a direct harm or mistreatment by a person or group of people, the harm will come through the lack of or non-existence of trauma support or care in medicine, technology and human expertise.
The authorities will not protect him. His family and the medical officer at [named] Rehabilitation Centre sought accurate and detailed information about the treatment and medical services available to quadriplegic patients. It is evident that Fiji lacks the very basic medical support for trauma victims.
In support of his application, the applicant provided letters of support for his protection visa application. The letters were from:
·   [Dr A], Sub-Divisional Medical Officer, [location], [named] Health Service (dated 14 May 2019) who said that the hospital does not have the facility and necessary equipment to manage a complicated case like the applicant’s. Theirs is a 12-bed hospital managed by a General Practitioner.
·   [Dr B], Rehabilitation Physician, [named] Rehabilitation Centre (undated) providing an update on the applicant’s progress with his cervical spinal cord injury and a revised discharge date of 27 June 2019 and confirming he does not have active tuberculosis or other conditions that might be a threat to public health in Australia, and
·   [Ms C], the applicant’s wife who is a nurse by profession and concerned that her husband will not have the ‘services or support infrastructures for trauma patients’ in Fiji.
On 26 June 2020, a delegate of the Minister refused to grant the visa.
The review application
On 23 July 2020, the applicant applied for a review of the delegate’s decision. He provided the Tribunal with a copy of the delegate’s decision. The Tribunal is satisfied that the decision is reviewable under s 411(1)(c) of the Act.
With his application, the applicant provided:
·   a protection visa decision record review request (undated)
·   a letter from [Mr D], Regional Manager, [named organisation], dated [in] July 2019, confirming that the applicant had been accepted as an interim participant into the scheme for two years from the date of the letter, and
·   a duplicate of the letter from [Dr B] (referenced at [12]).
In the protection visa decision record review request document, the applicant’s representative made the following additional claims:
A few days after his accident, while the applicant was in intensive care, at his immediate family’s request he sought legal advice and consulted with immigration agents. He was advised to apply for a Bridging Visa E, which was granted on 16 May 2019.[1]
[1] The applicant’s first bridging visa was granted on 30 October 2018.
On 14 May 2019, a protection visa was lodged as he was advised that the applicant’s circumstances will only require a protection visa with the emphasis on humanitarian and medical considerations of complementary protection.
The case officer’s findings that the applicant fails to meet the refugee criteria are understandable as he does not qualify. However, the decision was heavily biased towards refugee status and there was no exhaustive assessment on the complimentary criteria.
Denying the applicant continued access to the medical, social and economic support he is receiving will greatly harm his life. He will suffer significant harm if he is arbitrarily deprived of his life or subjected to degrading treatment.
The applicant is a quadriplegic who requires full-time care and specialised treatment for his rehabilitation. He has a custom-made electric wheelchair and a [specified] van, access to training and continued learning, home renovations to support independent living and mobility and daily care by registered care givers.
The consequence of a visa refusal is that the applicant must live with what is available in Fiji. This will have a great negative impact on his life.
The world pandemic COVID-19 has greatly impacted Fiji.
The applicant visited Australia at his sister’s request. He was a father figure to her growing up and her [number of] young daughters are very close to him and view him as a cultural mentor.
On 30 July 2020, the applicant provided:
·   an updated protection visa decision record review request (undated)
·   a report of the applicant’s responses against the international standards for neurological classification of spinal cord injury dated 12 December 2018, and
·   an [insurance company] plan for rehabilitation and community participation for the applicant dated 15 June 2020 for the period 17 June–16 December 2020.
In the updated protection visa decision record review request document, the applicant’s representative made the following additional claims:
If returned to Fiji, the applicant will face significant harm through arbitrary deprivation of his life and he will be subjected to degrading treatment.
He is a quadriplegic who has undergone 21 months of medical treatment and rehabilitation. All his medical and other necessary costs are met by the insurer [insurance company] and other financial needs are met by the family members who are Australian citizens.
If he is returned to Fiji, the limited and lack of specialised medical treatment and support compared to what he is getting on a daily basis now will amount to complementary harm.
A four-hour flight to Fiji and removal of the treatment and rehabilitation received over the last 21 months would create mental and emotional stress, loss of hope and could trigger things unimaginable. This is psychological and emotional torture, caused by degrading treatment.
On 21 September 2020, the applicant provided:
· an [insurance company] care needs assessment report dated 5 June 2020 for the period 17 June–16 December 2020, and
· a duplicate [insurance company] plan for rehabilitation and community participation for the applicant for the period 17 June–16 December 2020 (referenced at [25]).
On 5 December 2022, in pre-hearing submissions, the applicant provided:
·   a letter from [Mr E] (full name obscured by stamp) from [Hospital 1], [Province 1] dated 30 November 2022 explaining that the hospital does not have the capability to care for spinal cord injuries as most cases are referred to the National Rehabilitation Centres in Suva and are then taken care of by their families. The hospital has general practitioners and nurses but they are not fully trained in the care of spinal cord injury patients. The hospital does not have a hoist or working electronic adjustable beds. The hospital has basic equipment and serious cases are referred to Suva.
·   a letter from [Mr F], registered psychologist, dated 1 December 2022, outlining the care he has provided to date and explaining that the applicant’s life would be immensely more difficult for him in day-to-day practical terms if he were to return to Fiji given the relative absence of services and supports there compared to those in Australia. [Mr F] said there is no doubt the applicant’s mental health would decline should he return to live in Fiji.
·   a letter from [Dr G] from [named] Medical Centre dated 2 December 2022. [Dr G] advised the applicant has recently been diagnosed as a diabetic.
·   a letter from [Ms G], HR Officer, [Employer 1], dated 1 December 2022, confirming the employment of the applicant’s wife as a [Position 1], and
·   a letter from [Mr H] of [the] Provincial Council explaining that electricity is supplied by a diesel generator on their remote island, they do not have a 24-hour supply of electricity and if there is a mechanical dilemma with the generator there can be days with no electricity.
The applicant appeared before the Tribunal on 12 December 2022 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s wife. The Tribunal hearing was conducted, with the assistance of an interpreter, in the Fijian and English languages. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments. Where relevant, the applicant’s evidence to the Tribunal is referred to below in the Tribunal’s analysis.
The applicant was represented by his uncle in relation to the review and he was in Australia at the time of this decision.
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 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION
The issue in this case is whether the applicant has a well-founded fear of persecution for a refugee nexus reason, or he is owed complementary protection, or he is a member of the same family unit as a non-citizen who is a refugee or is owed complementary protection.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Country of reference
The applicant claims that he was born in [Village 1], [Province 1], Fiji and is a citizen of Fiji. His passport was sighted at the hearing.
Based on the applicant’s passport, the Tribunal finds that the applicant is a citizen of Fiji and that Fiji is the receiving country for the purpose of s 36(2)(aa) of the Act.
Assessment of claims and evidence
The applicant says that he has not experienced harm in Fiji, which he left in 2015.
The applicant fears that healthcare in Fiji for people with spinal injuries is not equivalent to that provided in Australia. His concerns have been informed by his observations as a hospital orderly in Fiji, his wife’s observations as a nurse in Fiji, the applicant’s wider family, investigations by [named] Rehabilitation Centre, [Dr A], [Mr E] from [Hospital 1] and [Mr H]. The Tribunal considered all of the information provided by the applicant in making its findings.
The applicant’s wife, who is currently in Australia on a visitor visa, said that she was attending the hearing in her capacity as a wife and a member of the Fiji Ministry of Health, where she works. She is a nurse and employed as a [Position 1] in the Ministry of Health and Medical Services Fiji. She confirmed that the applicant is not on any medication other than for pain management and an enema suppository, both related to his spinal injury. She said that he is not on any medication for diabetes. The Tribunal accepts that the applicant’s wife is a nurse and it accepts the evidence from her about the applicant’s medication.
Standard of care
In Australia, the applicant’s care is paid for through the [insurance company] Lifetime Care and Support Scheme. Documents provided to the Department show that the applicant was accepted as an interim participant to receive two years’ support through the scheme that pays for treatment, rehabilitation and care of people who have been severely injured in a motor accident in New South Wales. At the hearing, the applicant’s wife confirmed that he has subsequently been assessed and is now a lifetime care participant of the [insurance company] Lifetime Care and Support Scheme. The Tribunal accepts that the applicant is a lifetime care participant.
The applicant detailed his medical care at the hearing, which aligns with the information provided to the Department. He has two carers who come twice each day to attend to his needs, which includes exercises, moving him to and from his bed, bathing him, administering his enema and emptying his sanitary bag. He receives physiotherapy weekly, pool sessions weekly, visits a psychologist every fortnight, visits the general practitioner each month and the podiatrist every six weeks. A continent nurse changes his supra-public catheter monthly. This care is paid for through his lifetime care. He also attends the Men’s Shed twice a week in a vehicle provided through the lifetime care.
As discussed at the hearing, [insurance company] lifetime care support is provided to recipients living overseas. The applicant confirmed that his package pays for all equipment and carers and all the attending psychology, medical practitioner visits, podiatry, physiotherapy, pool sessions and also covers adjustments to his sister’s rental accommodation, where he is living. The Tribunal is satisfied that the applicant would continue to receive care in Fiji as a lifetime care participant.
The applicant claimed that returning him to Fiji would arbitrarily deprive him of his life. When asked to elaborate on this claim he said that, given the substandard state of the service in Fiji, he will not live more than one year because he would be denied all those services that keep him alive. He provided examples including that he would not have the appropriate bed for his needs, nor would he have the exercises for his limbs that allow him to feed himself. The Tribunal considered this claim in light of the Federal Court’s finding in SZDCD v MIBP, where the Court found that the Australian government would not act arbitrarily in the removal of an applicant and that depriving an applicant of his present access to medical treatment in Australia would not deprive the applicant of his life.[2] The Tribunal is not satisfied that there is a risk that the applicant would be arbitrarily deprived of his life by his removal to Fiji because it would not involve arbitrary conduct.
[2] SZDCD v MIBP [2019] FCA 326 at [48].
The applicant said that in the village, if he soils himself, there would be no one to help him clean himself. He said that there is a cultural taboo for any of his close relatives except his wife to see his ‘nakedness’ if he has uncontrolled body functions. He also said that the villagers would not inflict any physical harm but they would deny him assistance, which contrasts to Australia where he is currently cared for more or less full time. He said in these situations in Fiji, people are passed on to the hospitals and, as an orderly at the hospital, he has seen the state of the services provided, which are not like those in Australia. The applicant was asked why he could not hire the carers he needed to provide care in the village. He said that the qualification of carer doesn’t exist in Fiji. When asked whether people without formal qualifications could undertake the duties of a carer, the applicant said that the decision is up to those who pay the bills, that it was not for him to decide who is to be paid and hired. The Tribunal did not find the applicant’s evidence about the availability of carers to be persuasive. The Tribunal does not accept that the applicant would be unable to access assistance in the village. The Tribunal is satisfied that the applicant can access care to support daily living as a lifetime care participant.

At the hearing, the Tribunal asked the applicant if he would be treated differently to other quadriplegics in Fiji or to other people in a wheelchair. The applicant did not provide any information to suggest that his treatment would be different to anyone else with quadriplegia in Fiji or anyone else in a wheelchair, instead he repeatedly contrasted the medical treatment and care in Australia with what he thought he would receive in Fiji. For example, he said he had not seen anyone in Fiji with an electric wheelchair like his.
At the hearing, the Tribunal asked if the applicant whether he would receive a higher level of care than other quadriplegics in Fiji given his lifetime care support package. He said that he would be able to obtain state-of-the-art equipment from Australia, but Fiji lacks the trained carers and support people to assist him to use it. He said he would be inconvenienced by the delay while waiting for the specialised chairs, bed and supporting equipment to arrive in Fiji. He also said he was concerned that [insurance company] would not respond in time to take care of him in Fiji as he had been waiting for two years for them to fix the flooring in the sitting room to allow easier movement to the bathroom outside his sister’s house. The Tribunal accepts that the applicant may experience inconvenience while waiting for equipment to arrive in Fiji or minor repairs to be effected but the Tribunal does not accept that this inconvenience amounts to serious harm.
As discussed at the hearing, the DFAT Country Information Report Fiji says that:
Healthcare is generally available for those who need it. Quality is better in urban areas and may be basic in rural areas, especially the outer islands. Smaller communities might have access to basic healthcare facilities known as ‘nursing stations’ or ‘health centres’, the latter staffed by a doctor. Specialist healthcare is generally available…Medication availability varies and the range of medications available in Fiji is less than in Australia. Equipment or specialist treatment facilities, for example for chemotherapy, are sometimes lacking. Some facilities are old and not well-maintained, and staff-to-patient ratios can be poor.[3]
Societal treatment
[3] DFAT Country Information Report Fiji, 20 May 2022, 7.
The applicant said that, if he returns to his village, people will be judgmental even to the extent that they would taunt him for having a vision to leave Fiji and make a living for himself in Australia and then to return in his current state. He said the gossip and taunting would be demoralising. Based on the evidence from the applicant and the country information, the Tribunal accepts that the applicant may receive verbal harassment that amounts to low-level societal discrimination.
Relocating
At the hearing, the applicant was asked if anyone would harm him. He said that there may not be anyone who would directly harm him, but he would be faced with mobility difficulties. He is in an electric wheelchair and he said the village has a problem with electricity, which is detailed in the letter from [the] Provincial Council. The Tribunal accepts that the applicant’s village has intermittent electricity supply.
The applicant’s wife said that none of the nurses on the island is currently trained to change a supra-public catheter like the applicant has.
Noting the capacity of the local hospital and the intermittent electricity supply, the applicant was asked if he would move to Suva to access the higher level of care available in the capital. The applicant said he was concerned that in Suva he would not be able to access the standard of care or the professionals who he accesses in Australia. For example, psychologists are only available at the psychiatric hospital in Suva and his wife claimed that they do not have podiatry in Fiji. However, she also agreed that someone other than a qualified podiatrist could cut the applicant’s toenails every six weeks. The applicant was also concerned whether there was an appropriate vehicle to transport his wheelchair in Fiji, and he said that Suva did not have wheelchair-friendly facilities or footpaths.
The applicant said that he did not have any close relatives or a home in Suva. When reminded that his foster daughter (who is also his niece) lives in Suva, he said that she was boarding in someone else’s home and it would be inconvenient for both of them to be living in that kind of arrangement.
His wife said that moving to Suva would be a big adjustment as they would have to look for housing and land. His wife said that it might take one or two years for her to be transferred by her work to Suva.
COVID-19
In the protection visa decision record review request document, the applicant’s representative claimed that the world pandemic COVID-19 has greatly impacted Fiji. The applicant did not provide any information about how the impact of COVID-19 related to his claims. The Tribunal notes that country information claims ‘the pandemic caused significant disruption’ as ‘tourism accounted for about 40 per cent of the pre-COVID-19 economy’[4] and that the applicant’s wife does not work in the tourism sector. The Tribunal does not accept that the applicant would suffer harm as a result of the COVID-19 impact on Fiji.
[4] Ibid, 7.
Finding on refugee criteria s 36(2)(a) of the Act
The Tribunal is satisfied that the applicant is a member of a particular social group, being quadriplegics, and it assessed his claims accordingly.
The applicant claims to fear harm because as a quadriplegic he would not receive the same standard of care in Fiji as he does in Australia. The Tribunal accepts that the care the applicant receives in Australia is likely to be of a higher quality than that he would receive in Fiji and that he would prefer to remain in Australia. However, the Tribunal does not accept that the applicant would be denied care in Fiji.
The applicant’s claim that he would not survive even a few months if removed to Fiji because he would be denied services is not supported by the country information. Based on the country information, the Tribunal does not accept that the applicant would be denied those services if he returned to Fiji. Based on the country information about the availability of healthcare, the Tribunal is satisfied that the applicant will have access to the level of healthcare that is available to the general population of Fiji.
In addition to his access to the health care available to the general population, the Tribunal is satisfied that, as a lifetime care participant, the applicant can access paid carers in Fiji and specialist equipment from Australia, which may provide a higher level of care than that available to the general population of Fiji. The Tribunal accepts that the applicant may be inconvenienced by a delay in specialist equipment being transported from Australia and minor repairs being effected, but the Tribunal does not accept that this inconvenience amounts to serious harm. The Tribunal is satisfied that the applicant can access care to support daily living as a lifetime care participant and that he would continue to receive care in Fiji as a lifetime care participant.
The applicant claimed that the people in the village would gossip about him and taunt him. The applicant said that this behaviour would be demoralising. The Tribunal accepts that the applicant may receive verbal harassment that amounts to low-level societal discrimination. The Tribunal is not satisfied that low-level societal discrimination amounts to serious harm.
The applicant and his wife claimed that the care he would receive in the village would be affected by the electricity supply, the level of health care at the hospital and the availability of specialist medical staff. Based on the information from the applicant and his wife and the country information, the Tribunal accepts that the quality of health care ‘is better in urban areas and may be basic in rural areas, especially the outer islands’.[5] The Tribunal notes that the applicant’s foster daughter lives in Suva. The Tribunal is satisfied that the applicant would have family support in Suva and in his village. The Tribunal is satisfied that, as a lifetime care participant, the applicant can choose whether to live in Suva or in the village and where to access his care.
[5] Ibid.
In his letter of support, the applicant’s psychologist said that he thought the applicant’s mental health would decline, should he return to live in Fiji. In the protection visa decision record review request document, the applicant’s representative claimed that a 4-hour flight to Fiji and removal of the treatment and rehabilitation that he had received for 21 months, restrictions on mobility, and the unavailability of medication and specialised services would create mental and emotional stress, loss of hope and could trigger ‘things unimaginable’. He claimed that this was psychological and emotional torture, caused by degrading treatment. As found earlier, the Tribunal is satisfied that at a minimum the applicant will have access to a level of health care that is available to the general population of Fiji. Based on the evidence from the applicant and the country information, the Tribunal is not satisfied that the treatment the applicant would receive is degrading treatment. While the applicant did not specifically raise suicide at the hearing, the Tribunal considered these claims about the applicant’s mental health and the loss of hope triggering ‘things unimaginable’ in light of the Federal Court finding that it does not consider that self-inflicted harm constitutes ‘harm’ for the purpose of ss 36(2)(aa) and 36(2A).[6] The Tribunal finds that voluntary suicide is not serious harm for a Convention reason for the purpose of s 36(2)(a) nor significant harm for the purposes of s 36(2)(aa) or s 36(2A).
[6] CHB16 v Minister for Immigration and Border Protection [2019] FCA 1089 at [65]–[68].
The criterion in s 5J(1)(a) of the Act contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or 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 MIEA (1989) 169 CLR 379.
For the purposes of s 5J(4), s 5J(5) provides that the following are instances of serious harm: (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.
Considering the applicant’s claims individually and cumulatively, the Tribunal does not accept that, as a quadriplegic, the inconvenience he would experience because of delays and low-level societal discrimination would amount to serious harm. The Tribunal does not accept that the applicant’s life or liberty would be threatened, nor that he would experience significant physical harassment or physical ill-treatment, nor that he would be denied access to basic services. Noting that the applicant’s care would be covered in Fiji as he is a lifetime care participant, that his wife is employed as a [Position 1] and that he has family support in his village and in Suva, the Tribunal does not accept that the applicant’s capacity to subsist would be threatened. The Tribunal is not satisfied that there is a real chance that on return to Fiji now or in the foreseeable future, the applicant would face serious harm as a quadriplegic.
The applicant has not claimed to fear harm for any other reason, and no other claims are apparent on the information before the Tribunal. The applicant has not claimed, and there is nothing to suggest, that he has a well-founded fear of persecution for any other reason listed in s.5J(1) of the Act.
For these reasons, the Tribunal is not satisfied that there is a real chance that on return to Fiji now or in the foreseeable future, the applicant would face serious harm for reasons of race, religion, nationality, membership of a particular social group or political opinion. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Finding on complementary protection criteria s 36(2)(aa) of the Act
A person can be granted a protection visa based on complementary protection if there are substantial grounds for believing that there is a real risk the person will suffer significant harm if they are removed from Australia to their home country. Significant harm is defined as arbitrary deprivation of life; the death penalty; torture; cruel or inhuman treatment or punishment, or degrading treatment or punishment.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB (2013) 210 FCT 505, the ‘real risk’ test was held to impose the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition. That reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.[7] For the same reasons that the Tribunal is not satisfied that there is a real chance that the applicant would suffer serious harm, the Tribunal is not satisfied that there is a real risk that he would suffer significant harm.
[7] See Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), 170–1 at [1169], [1180]
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)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Katherine Harvey
Senior 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.
…

[2023] AATA 813

9 February 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction