2107567 (Refugee)

2107567 (Refugee) [2021] AATA 5052 (14 October 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:2107567

COUNTRY OF REFERENCE: Fiji
MEMBER:Damian Creedon
DATE:14 October 2021
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 October 2021 at 12:37pm

CATCHWORDS
REFUGEE – protection visa – Fiji – particular social group – sufferers of mental illness – fight within family – fear of physical violence – illegal military assignment – financial reasons – Australian born child – access to schizophrenia medication – referral for Ministerial Intervention – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 417, 427, 499
Migration Regulations 1994, Schedule 2
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 dependants.
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 2 June 2021 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
Background
The applicant, [an age]-year-old citizen of Fiji, applied for the visa on 5 May 2021.
The applicant first arrived in Australia [in] August 1999 as the holder of a Child Offshore Visa Subclass 101 granted on 15 July 1999 which was cancelled on 23 October 2019. The applicant is presently in immigration detention.
Protection visa application.
The applicant’s written claims for protection are set out in his protection visa application. They are brief and it is convenient to set them out in full (uncorrected):
SINCE APPLICANT WAS IN FIJI ARMY AND THE ASSIGNMENT WAS GIVEN TO APPLICAT WAS ILLEGAL
ON ARRIVAL TO FIJI ISLANDS APPLICANT WILL BE PROSCUTED AND THROWN IN PRISON
FIJI IS SMALL COUNTRY ANYWARE APPLICAT WILL GO HE WILL BE NOTCIED
The applicant then states in his application that he is known to the authorities in Fiji, that the Fijian Government will prosecute him on arrival and that he could not obtain protection from the authorities there as they are the prosecuting authorities he fears.
The applicant participated in an interview with the delegate of the Minister on 19 May 2021 via telephone; the interview may be summarised as follows:
a.The applicant has family living in Australia: [specified family members] as well as their extended family. The applicant’s Australian family reside in Sydney. The applicant’s father died in 2020.
b.The applicant’s mother and one [brother] are resident in Fiji. The applicant maintains contact with his family in Fiji.
c.The applicant is engaged, and his fiancé is resident in Australia. The applicant has one daughter from a previous relationship.
d.Before coming to Australia, the applicant was resident in Suva, Fiji.
e.The applicant clarified his protection visa application in that he was not in the Fijian military; rather his father served in the Fijian army.
f.The applicant was assisted to complete his visa application form by a “[name]”, a fellow immigration detainee.
g.When pressed by the delegate as to his claims for protection, the applicant stated that he feared returning to Fiji as “they” were into alcohol and drinking and would hurt him.
h.The applicant stated that he was worried that his “older brother” that is, his “[specified relative]”, would be angry at him.[1] The applicant stated that his cousin would be angry because they had had a “touch up”, an argument when he had visited Australia. The applicant stated that the argument became physical, that he (that is the applicant) put his cousin on the ground and that he was concerned that there would be some retribution for this.
[1] For the sake of convenience, the Tribunal will refer to this person as the applicant’s “cousin”.
i.The applicant stated that the fight occurred some 10 or 11 years ago, that he had spoken to his cousin about the incident afterwards and that his cousin had said to him words to the effect that “it’s all ok, we’re family”.
j.When the delegate put to the applicant that his cousin had forgiven him, the applicant agreed with this characterisation of the events. The delegate then asked the applicant whether he was concerned that alcohol may change his cousin’s attitude, to which the applicant responded that that was what he worried about.
k.The applicant was asked whether, if this occurred, the police in Suva would assist him, to which the applicant responded that he thought they would protect him.
l.The applicant expressly disavowed the written claims set out in his protection visa application, including that he had been in the Fijian army and had been given an illegal assignment.
m.The delegate asked the applicant whether he feared that, if he returned to Fiji, the Fijian Government would harm him, to which the applicant responded that they would not harm him, that “they would be alright”.
n.The applicant stated that his [brother] returned home to Fiji for a visit and that “nothing happened to him”.
o.The applicant stated that his uncle had beaten him before he came to Australia, as well as his mother. The applicant’s uncle is still resident in Fiji, however he has not maintained contact with him.
p.When asked by the delegate to outline all of the reasons why he feared returning to Fiji, the applicant stated that he “really wants to stay in Australia for financial reasons”. When pressed on this issue, the applicant stated that he wanted to support his mother financially and that, should he return to Fiji, he would be approaching retirement age.
q.The applicant stated:
I’ve got no problem returning back to Fiji; I’m alright to go back home.
r.The delegate reminded the applicant of the purpose of the interview (in appropriate terms) and asked the applicant whether there were any “bad things” that might happen to him if he returned to Fiji. The applicant’s response was (with respect) rambling and largely incoherent, save that he claimed to be at risk because he might break the law.
s.When pressed by the delegate as to whether there was something out of the applicant’s control that might force him to break, or place him in breach of, the law, the applicant stated that we would see if he could do the right thing rather than “go drinking or partying”.
t.The applicant confirmed, in response to a direct question from the delegate, that if he returned to Fiji, he would be able to live with his mother and brother. The applicant confirmed that his Australia-based family help to financially support his mother and brother in Fiji.
u.The applicant confirmed, in response to a direct question from the delegate, that he had been diagnosed with schizophrenia. He stated that he was diagnosed “last month” and that the medication he had been prescribed helped with the symptoms. The applicant stated that his family were aware of his diagnosis and that his mother had advised him to “eat right” and “drink a lot of water” to help “cure it”. The applicant confirmed that his mother understood the necessity for him to take the prescribed medication.
v.The applicant stated, in response to a direct question from the delegate, that if he returned to Fiji that he would not be able to receive the same treatment as in Australia. He stated his belief that he could not obtain the same medication in Suva. He stated that, in Fiji, there would be “nothing to stop [him] from playing up”.
w.The applicant stated that, if he could not obtain his medication in Fiji, he would “probably be living with his family for one day”. He stated that he would have difficulty adjusting to life in Fiji, and that he would “be in trouble”. When asked to clarify his meaning, the applicant stated that he would have trouble “with the local people”.
x.The delegate asked the applicant whether he feared that the local people would do something or say something to the applicant on account of his mental health illness; in response the applicant stated that he would “stick to [himself]”.
y.The applicant stated, in response to a direct question from the delegate, that there were no other fears that he held in respect of returning to Fiji and that he had no questions for the delegate.
z.When pressed as to whether there was anything further he wished to add, the applicant stated that he “really wants” to stay in Australia to improve his education, his job prospects and to maintain his relationship with his daughter.
aa.The delegate asked the applicant whether he held any fears of returning to Fiji as a member of a particular social group, being “people (or a person) with schizophrenia in Fiji”; the applicant’s response was largely incomprehensible, save that he did refer to hearing voices telling him to do things.
bb.The delegate then asked the applicant what would happen to him if he returned to Fiji and was unable to receive his medication to which the applicant responded that he “would die”. When pressed as to what would happen if the voices told him to hurt someone, would he get into trouble with the police, the applicant confirmed that he would; when further pressed as to the community’s judgment, the applicant stated that he feared that the “people of the interior” would attack him.
The delegate refused to grant the visa on 2 June 2021 on the basis that the applicant is not a refugee as defined by s5H(1) of the Act and there were not substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to his receiving country, there was a real risk he would suffer significant harm.
The applicant applied for a review of the delegate’s decision on 9 June 2021.
Application for review
The applicant appeared before the Tribunal on 7 July 2021 and again on 11 October 2021 (both times by via video link) to give evidence and present arguments.
Where relevant, the applicant’s oral evidence to the Tribunal is referred to below.
CONSIDERATION OF CLAIMS AND EVIDENCE
The relevant law
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
Analysis, findings and reasons
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
First hearing: 7 July 2021
The first hearing was conducted on 7 July 2021 via video link to the immigration detention facility at [location].
The applicant’s evidence to the Tribunal raised two principal claims for protection: firstly, the consequences to the applicant of his alleged military service in Fiji; and secondly, the potential consequences to him of his mental illness should he return to Fiji.
The Tribunal began the hearing by discussing with the applicant his personal history. The applicant confirmed that he was born in Fiji in [year], that he first arrived in Australia in 1999 as [an age]-year-old and that he is presently [age] years old. He stated that his mother is resident in Fiji along with one of his brothers and that his [specified family members] are resident in Australia with their respective extended families.
The applicant finished his schooling to [grade] level in Australia, and after leaving school he worked as [an occupation 1] and in [industry 1]. He has one child, a daughter, who is presently [age] years old. The applicant’s daughter lives in Sydney with [a relative]. The applicant is presently in a de facto relationship, but that person is not his daughter’s mother. The applicant’s de facto partner lives in Sydney.
The Tribunal then asked the applicant what it was that he feared about returning to Fiji. The applicant stated that he was concerned that the military would “harm” and “persecute” him.
When pressed by the Tribunal as to why this was the case, the applicant stated to the effect that he “didn’t follow orders to join the army back in Fiji”, “to hit the people back in town when they were looting”.
When asked whether he had ever been a member of the Fijian military, the applicant stated “yes” and that he had joined in [specified year]. The Tribunal put to the applicant that he would have been around 16 years of age at that time, and he agreed, stating that he wanted to join the civil service to “achieve something higher”.
When asked why he wished to join the army, the applicant stated to the effect that “some Indian people wanted me to hurt other Fijians”. The applicant stated that he left the Fijian military when he came to Australia in 1999.
The Tribunal asked the applicant whether he was a member of, perhaps, a military cadet corp, and he said that he was. When asked whether it was connected with his school or outside of school, he stated that it was connected with his school. The Tribunal’s impression of the applicant’s answers to these questions is that he was simply adopting the Tribunal’s offered terminology.
When asked what he feared about returning to Fiji on account of his claimed military service, the applicant stated that he “didn’t listen to the authority of the person above [his] rank” and he refused to “belt people up” during “the military coup”.
The applicant stated that he was not punished at the time by the authorities in Fiji in respect of his claimed behaviour, and when asked why they would still be interested in persecuting him today, some 20 years later, the applicant stated that:
They have my name at the airport, with my photo to be detained
The applicant was unable to provide any meaningful particulars of this claim despite being pressed by the Tribunal on several occasions, saying only that he was “in a frightening situation” at the time.
The applicant agreed with the Tribunal’s proposition to him that he had been diagnosed with schizophrenia.
He stated that he has stopped taking illicit drugs and is now taking medication to help with his mental health. He stated that he was first diagnosed when he was [age range] years of age.
When asked by the Tribunal whether he had concerns about accessing mental health treatment, including medication, in Fiji the applicant stated:
Nah, I think they’ve got treatment – medication [is] available in Fiji – when Mum came over from Fiji to Australia – she’s taking the same medication.
The applicant made no claim as to his fear of a social stigma in Fiji on account of his mental health diagnosis.
During the hearing the applicant also stated the following other concerns at returning to Fiji, but he provided no meaningful detail in relation to them and they appeared to the Tribunal to be expressions of broad opinion built upon anecdote, namely:
a.that the ethnic Indian population of Fiji had “chased” people off their ancestral land; and
b.that people in Fiji were messaging him about people “getting tortured by the Indians”.
The applicant also stated that he was scared of his uncle who used to discipline him when he was a child.
First Hearing - Analysis
Overall, the applicant was a willing participant in the first hearing and seemed eager to answer the Tribunal’s questions and to be “helpful”. However, he appeared to the Tribunal to have trouble concentrating and, moreover, expressing complex thoughts, particularly when asked to explain his fears at the prospect of returning to Fiji.
Summons
On 16 July 2021, the Tribunal issued a summons to the Department seeking documents within the following description:
1) Psychiatric and/or psychological reports notes records and/or opinions made in respect of the review applicant.
2) All documents which touch upon or concern the review applicant's diagnosis of schizophrenia, in particular those which touch upon or concern his cognitive abilities and competence to give evidence.
The Department responded to the summons on 21 July 2021, providing a bundle of documents which appear to comprise the applicant’s New South Wales Health Department file and its contents covering the period 19 May 2014 to 16 May 2016. Key aspects of the notes on the file may be summarised as follows:
a.The “principal diagnosis” is recorded as “schizophrenia”.
b.The applicant has had “long standing schizophrenia” including “numerous” admissions to hospitals in NSW.
c.When the applicant was received into custody in May 2014 he was “unmedicated”.
d.Despite compliance with his prescribed medical treatment during his time in custody it is recorded that:
[The applicant] continued to experience positive symptoms of schizophrenia, including auditory hallucinations and thought disorder.
e.He has experienced “paranoid beliefs”.
f.Among the medical observations it is recorded that:
[The applicant is] a large build Melanesian man. Vague, thought disordered. Poor concentration. No overt delusions.

The Tribunal notes that phrase “thought disorder” describes a specific psychiatric condition. The Johns Hopkins Psychiatry Guide provides the following definition:[2]
Formal thought disorder refers to an impaired capacity to sustain coherent discourse, and occurs in the patient’s written or spoken language.
·Whereas delusions reflect abnormal thought content, formal thought disorder indicates a disturbance of the organization and expression of thought.
(Emphasis in original)
[2] >
The Johns Hopkins Psychiatry Guide also provides the following definition of “Schizophrenia”:[3]
A disorder characterized by psychotic symptoms, including hallucinations, delusions, or formal thought disorder, and accompanied by disorganized behaviors [sic], negative symptoms, and/or a decline in premorbid functioning
Psychiatric assessment
[3] >
On 5 August 2021 the Tribunal issued a request to the Department pursuant to s.427(1)(d) of the Act in the following terms (materially):
The Member requests the psychiatric assessment of the applicant, and for a report of the assessment to be provided to the Tribunal to evaluate the competence of the applicant for the purposes of conducting the review. This is relevant to the Member’s review of a decision to review a visa refusal.
The Tribunal requests that the Department organise this psychiatric assessment and report pursuant to s427(1)(d) of the Migration Act.
The Department responded to the request by email dated 2 September 2021, providing a copy of a letter dated [in] August 2021 from “International Health and Medical Services” (IHMS) with the subject line “Capacity Assessment Request – [the applicant’s name]”. The letter is brief, and it is convenient to set out its substance in full:
IHMS provides the following assessment in reference to the ABF request dated [in] August 2021 for a capacity assessment to be conducted to ascertain if [the applicant] is in a position to make lawful decisions on his immigration pathway.
IHMS can advise that [the applicant] was assessed by an IHMS psychiatrist [in] March 2021 and demonstrated the capacity to make immigration decisions. [The applicant] continues to be stable in his mental health and continues to have the capacity to make immigration decisions.
Second hearing: 11 October 2021
A second hearing was conducted on 11 October 2021 via video link to the immigration detention facility at [location].
At the hearing the Tribunal raised with the applicant his claim to having been a member of the Fijian military and having refused to follow illegal orders. The applicant stated to the effect that he had been “mistaken” about this in his previous hearing with the Tribunal and apologised.
The applicant stated to the effect that he was mistaken in that he had not been a member of the Fijian military, but rather his father had been.
The Tribunal asked the applicant whether he had any fears about returning to Fiji, and he made vague references to the criteria for a protection visa, in particular “religion”. The Tribunal was not persuaded by these statements that the applicant was doing anything other than attempting to say something appropriate that would appeal to the Tribunal. This did not appear to the Tribunal to be malicious or deceptive on the applicant’s part, rather it appeared to the Tribunal that the applicant was trying to be “helpful”.
The Tribunal put to the applicant that in fact he preferred to stay in Australia rather than return to Fiji and he agreed with that proposition, indicating to the Tribunal that he had successfully completed parenting and other social improvement courses while in detention, and referring to copies of certificates which he provided to the Tribunal, and which the Tribunal accepts.
Analysis
Written claims for protection
The applicant’s written claim for protection is that he feared retribution from the authorities in Fiji for failing to follow the “illegal” orders of a superior in the Fijian military.
In assessing the applicant’s evidence on this issue, the Tribunal has made allowance for his mental health condition, in particular that he suffers from “thought disorder” as part of his broader diagnosis of schizophrenia.
Overall, and noting the IHMS assessment that the applicant has “the capacity to make immigration decisions”, the applicant appeared to the Tribunal to be aware of the context and importance of the hearings and to be a willing, indeed eager participant. Notably, he answered questions regarding his personal circumstances clearly and succinctly, and consistently with known facts.
In addressing the issues relevant to his written claim for protection during the first hearing, however, the applicant appeared to the Tribunal to have difficultly explaining his concerns at returning to Fiji. After the first hearing the Tribunal was uncertain whether the applicant’s inability to express himself as regards these matters was because the facts alleged to underlie his claim did not happen, or because he could not adequately express what did happen.
The second hearing, however, allayed the Tribunal’s uncertainty. When the Tribunal raised with the applicant his claims to have been a member of the Fijian military, the applicant apologised for his previous “mistake” as regards this issue and did not seek to press it, stating that it was his father who had served in the military. The Tribunal notes that the applicant’s evidence at the second hearing in this regard is consistent with that given during his immigration interview on 19 May 2021.
Overall, the Tribunal is persuaded that the facts alleged by the applicant to underlie his written claim for protection – that he was a member of the Fijian military who refused to carry out “illegal” orders – did not happen. It follows that the applicant does not have a well-founded fear of persecution on this basis.
Other grounds for protection
The Tribunal has considered whether as a result of his diagnosis of schizophrenia the applicant may face forms of targeted discrimination, harassment and violence as a person suffering mental illness on return to Fiji.
While it is appreciated that mental illness may be caused by being the victim of ignorance and stigma, the fact that the applicant has identified his diagnosis to the Tribunal, and has participated in life-skills courses while in detention, would tend to suggest that he may be receptive to acknowledging his vulnerability and seeking psychiatric and/or psychological support should he require it in the future in Fiji.
According to the World Health Organisation (WHO) Mental Health ATLAS 2017 Member State Profile – Fiji,[4] there are available inpatient and outpatient mental health services in Fiji. With respect to inpatient services, there is one mental health hospital and three psychiatric units in general hospitals. Concerning outpatient services, there are 3 mental health outpatient facilities attached to hospitals and 26 community-based non-hospital mental health outpatient facilities. Per population size of 100,000, the proportion of mental health professionals is recorded at 0.22 for psychiatrists and 0.56 for psychologists and social workers, respectively.
[4] >
It would appear from the WHO report that there are available hospital and community groups that provide mental health services in Fiji. While there are ongoing challenges to individuals accessing services and treatment (compounded by the increased demand on resources placed by the COVID-19 pandemic) and mental health services may not be of the standard provided in Australia, the Tribunal considers that the applicant would be able to access necessary mental health services should he require it in the future. The importance of family and local support to an individual’s mental health is appreciated and, on his own evidence, the applicant has maintained a relationship with his mother and brother in Fiji.
Accordingly, the Tribunal recognises that the applicant may require psychiatric and/or psychological care and support in the future which engages his right to access the highest attainable standard of health as contained in Article 12(1) of the 1966 International Covenant on Economic, Social and Cultural Rights. Article 12(1) recognises the right of all persons to the “enjoyment of the highest attainable standard of physical and mental health”. Attributes of the minimum core content of the right include the availability, in sufficient quantity, of public health and health care facilities, goods, services and programmes, accessible without discrimination, and cultural and ethical acceptability and quality.[5] The Tribunal is satisfied that the applicant will have access, free from discrimination, to any mental health services he may require in Fiji.
[5] see the United Nations Committee on Economic, Social and Cultural Rights General Comment No 14: The Right to the Highest Attainable Standard of Health (Art. 12) E/C.12/2000/4 (11 August 2000) at [12].
The applicant’s claims as regards “Indians” in Fiji were vague and anecdotal in nature and not reflective of holding a well-founded fear of persecution or of his being at risk of suffering significant harm.
The applicant’s claims as regards the behaviour of his uncle were similarly vague and did not amount to a well-founded fear of persecution or of his being at risk of suffering significant harm.
Conclusions
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, and country information, as well as having considered the personal circumstances of the applicant as contained in his application and as discussed in the hearings, the Tribunal finds that there is no real chance that the applicant will suffer persecution on the grounds of race, religion, nationality, membership of a particular social group or political opinion, or any other reason if he returns to Fiji now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any reason (including race, religion, nationality, political opinion or membership of a particular social group) now, or in the reasonably foreseeable future, if he returns to Fiji. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Are there substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there is a real risk that he will suffer significant harm
The Tribunal has considered the applicant’s claims under complementary protection.
In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to Fiji now or in the reasonably foreseeable future.
The Tribunal is satisfied there is no real risk that the applicant will be subjected to any form of harm which would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflected on the applicant, such as to meet the definition of torture; or the definition of cruel or inhuman treatment or punishment; or the definition of degrading treatment or punishment. It is also not satisfied that there is a real risk he will suffer arbitrary deprivation of his life or the death penalty. The Tribunal finds no grounds that suggest the applicant will be subject to significant harm for any reason if he returns to Fiji. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.
Conclusion: Refugee Criterion
Considering all of the above circumstances, both individually and cumulatively, the Tribunal finds there is not a real chance that in the reasonably foreseeable future the applicant will be persecuted for any reason (including race, religion, nationality, political opinion or membership of a particular social group). His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.
Conclusion: Complementary Protection
Considering the applicant’s individual circumstances both individually and cumulatively, and the country information, the Tribunal finds that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Fiji that there is a real risk that he will suffer significant harm.
Overall 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.
RECOMMENDATION FOR MINISTERIAL INTERVENTION
Under s.417 of the Act the Minister may substitute a more favourable decision if it is in the public interest to do so. The Minister’s Guidelines indicate the matters that should be brought to their attention.[6] In particular it refers to:
Cases that have one or more unique or exceptional circumstances, such as those described below, may be referred to me for possible consideration of the use of my intervention powers:
·strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.[7]
·compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person
[6] PAM3: Act - Ministerial powers - Minister’s guidelines on ministerial powers (s351, s417 and s501J)
The applicant has lived in Australia since he was [age] years old, having, therefore, lived the majority of his life in Australia.
In recent times the applicant has been convicted of serious criminal offences for which he has served a period of imprisonment. This, of itself, militates against there being exception circumstances in his case. However, it is unclear to the Tribunal whether and to what extent the applicant’s mental illness contributed to his offending behaviour; and whether and to what extent he has since availed himself of the opportunity of proper medical care and social rehabilitation programmes aimed at addressing the causes of his offending and other anti-social behaviour.
Further, and decisively, it appears to the Tribunal that these issues should be assessed in the context of the risk of serious, ongoing and irreversible harm and continuing hardship to an Australian citizen, namely the applicant’s daughter.
The Tribunal therefore refers the matter to the Minister for consideration
Damian Creedon
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.
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[2021] AATA 5052

14 October 2021

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Immigration

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Statutory Interpretation

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