2010545 (Refugee) - [2024] AATA 4439

2010545 (Refugee) [2024] AATA 4439 (2 October 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2010545
COUNTRY OF REFERENCE:                   France (New Caledonia)
MEMBER:Stefanie Memmott
DATE:2 October 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 02 October 2024 at 10:39am

CATCHWORDS
REFUGEE – protection visa – France (New Caledonia) – family’s treatment of wife and pressure to divorce – wife from another country and instigated removal of applicant from her protection visa application to improve her chances as a single woman – unaware of wife’s claims – separation, wife’s allegations of domestic violence against applicant and applicant’s ADVO against wife – recent unrest in capital, but no fear of harm on smaller home island – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5F, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), r 1.12(4), Schedule 2
CASES
AWC21 v MHA [2022] FCA 1568
GLD18 v MHA [2020] FCAFC 2
SZRSN v MIAC [2013] FCA 751
WZARI v MIMAC [2013] FCA 788
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 5 February 2018 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant who, claims to be a citizen of France, applied for the visa on 16 November 2016.
CLAIMS AND EVIDENCE
Claims and evidence before the Department
Protection visa application
The applicant’s protection visa, made in November 2016, was lodged together with the applications of his wife and [children]. [Another] was born in [Year] 2017. Claims for protection were advanced by his wife relating to her country of nationality, [Country]. No claims were advanced by the applicant, rather his application relied on being a member of her family unit.
The applicant’s protection visa application form, among other things, included the following personal information:
·He was born in [Year] in [Island], New Caledonia. He is a citizen of France and no other country.
·He speaks, reads and writes in the French, English and [Wife’s country language] languages.
·His ethnicity is Melanesian.
·He is a member of [a Church].
·He was married on [Date] in [Country], though the relationship began in December 2005.
·He worked in [work sector] in New Caledonia, after completing his religious mission.
·He arrived in Australia [in] June 2016, travelling from New Caledonia on a visitor visa. He travelled on a French passport issued in New Caledonia.
Supporting documentation
The file held by the Department of Home Affairs (the Department) contains a copy of the biodata page of the applicant’s French passport. It also contains a copy of his certificate of marriage.
Delegate’s decision
A delegate of the Minister for Home Affairs (the delegate) refused the visa application on 5 February 2018. The delegate considered that the applicant was still a member of his wife’s family unit, and the reasons for refusal related to her claims for protection.
Claims and evidence before the Tribunal
The applicant lodged an application for review by the Tribunal on 22 June 2020 following effective, lawful notification of the refusal decision by the Department on 22 June 2020.
In his application for review form, the applicant answered a question which asked ‘why do you claim the decision is wrong?’ by setting out concerns relating to his family’s treatment of his wife. He indicates people in the village were against them because he married outside their custom, and they wanted him to divorce her.
The applicant provided the Tribunal with a copy of his marriage certificate, NSW drivers licence and biodata page of his passport with the application form.
The hearing
The applicant appeared before the Tribunal on 27 September 2024 to give evidence and present arguments. His evidence is discussed in more detail below.
He presented his French passport by way of identification, and also provided a copy of an interim apprehended violence order issued for his protection (in respect of his wife) in February 2023. The applicant did not ask the Tribunal to hear from any witnesses.
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 expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant has claimed to be a citizen of France and no other country, having been born in New Caledonia. The Tribunal notes the status of New Caledonia as a semi-autonomous French territory,[1] and the passport held by the applicant which was issued by the Republic of France and records his nationality as French. The Tribunal accepts that he is a national of France and that France is the receiving country for the purpose of assessing his claims.
[1] Australian Government Department of Foreign Affairs and Trade ‘New Caledonia Country Brief’ (>
The Tribunal considers that New Caledonia, and specifically his home Island of [Island], is the area of his country of nationality the applicant will live on return.
At hearing, the applicant explained that he came to Australia in June 2016 because his wife wanted to live here, as her parents lived here and held refugee visas (such that they could not travel back to [Country]). She spoke good English and ran everything; he didn’t really understand what visas they had applied for or what they were about. Then, his wife decided to have him removed from her visa application, and when he sought some advice about his options he was told he needed to stick with the protection visa application.
The applicant gave evidence that his wife wanted to remove him from her protection visa application because she thought she’d have a better chance of being granted the visa if she was single and that they could get back together later. However, the applicant wasn’t happy about this and thought they should stick together as a family. He didn’t want to play games and get back together later. The applicant also referred to his wife making false allegations of domestic violence against him.
The applicant gave evidence that he and his wife separated in 2022, though they are not formally divorced. He gave evidence that they haven’t really lived together since then. He said that since last year he has been living with friends in [Suburb] and before that he was renting rooms he found on Facebook. The applicant indicates his children live with his wife, but that he spends time with them on occasion. The Tribunal accepts this evidence.
The applicant said that he was originally from [Island], where he is part of a chiefly family. His parents still live there in a house they own, and [Number] of his siblings remain living in New Caledonia also. He used to have his own business there, doing [job task], though he gave that up when his wife wanted to move to Australia. He keeps in touch with his parents and siblings by phone. The Tribunal accepts this evidence.
When asked whether he had any fears about returning to New Caledonia, the applicant said not really. He said that things are pretty bad at the moment in Noumea because there has been looting and burning of shops and businesses, so there is a curfew in place and many people have lost their jobs. However, the applicant gave evidence he would go and live with his parents on [Island] and maybe do farming work, and there weren’t problems like that there.
The applicant also said he was concerned about being separated from his children, as he thinks they will be staying in Australia (though he wasn’t entirely sure of the status of their visas). He was not sure about seeking custody of the children as he didn’t want to fight in court and wanted his wife to decide what was best for them. He also referred to not wanting the children to be split up and to the difficulties they would have in New Caledonia as they only speak English now. The Tribunal considers, accordingly, that the applicant’s children will remain living with their mother for the reasonably foreseeable future, would not return to New Caledonia with him and would not visit him there or spend time living there in the reasonably foreseeable future.
The applicant did not refer to any of the claims made by his wife in her original protection visa application and indeed indicated he was not aware of what those claims were. The Tribunal notes these claims relate to [Country], being the country of her nationality. The Tribunal has not considered these further.
The Tribunal is not satisfied that the applicant has a well-founded fear of persecution. While he referred to recent unrest in Noumea, he said that there hadn’t been problems like that in [Island], which is where he would live on return to New Caledonia. Accordingly, the Tribunal is not satisfied that he faces a real chance of serious harm due to recent unrest.
The Tribunal appreciates that being separated from his children would be difficult, however the Tribunal considers that this would not result from persecution in his country of nationality, but rather the operation of Australian migration law.
The Tribunal also notes the written claims made in his application for review, concerning rejection of his wife by people in his home village and his wife’s fears for her life and the lives of their children as a result. However, these claims were not mentioned by the applicant at hearing. Given this, and given the applicant’s evidence that he is now separated from his wife and she would not be living with him on return to New Caledonia, and given the Tribunal’s finding his children are will not visit or live in New Caledonia in the reasonably foreseeable future, the Tribunal is not satisfied the applicant faces a real chance of harm because of disapproval of his marriage by people in his home village.
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 faces a real risk of significant harm due to unrest in Noumea, as the applicant would not live there and he has stated no such problems exist in [Island] where he would return to.
The Tribunal appreciates that being separated from his children would be difficult, however the Tribunal is not satisfied that separation arising from the act of removal itself would constitute significant harm, as defined by the Act.[2] It does not involve the death penalty or arbitrary deprivation of life, and the Tribunal is not satisfied that any of the intentionally elements would be present such as to satisfy the definitions of torture, cruel and inhuman treatment or punishment or degrading treatment or punishment.
[2] SZRSN v MIAC [2013] FCA 751 at [47]–[49] (upholding the reasoning at first instance SZRSN v MIAC [2013] FMCA 78 at [61]–[65]); GLD18 v MHA [2020] FCAFC 2 at [36]–[58]; AWC21 v MHA [2022] FCA 1568 at [29]; WZARI v MIMAC [2013] FCA 788 at [31]–[32] (special leave to appeal dismissed: WZARI v MIAC [2013] HCASL 201).
The Tribunal is not satisfied that the applicant faces a real risk of significant harm due to disapproval of his marriage by people in his village given he is now separated, his wife would not return with him and his children will not be visiting or living there in the foreseeable future.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
The Tribunal has considered whether 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. However, he gave evidence his only family in Australia are his children, and there is no evidence before the Tribunal to suggest they satisfy s 36(2)(a) or (aa) and hold a protection visa. Having regard to regulation 1.12(4) of the Migration Regulations 1994, the Tribunal is also not satisfied that he is a member of the family unit of any of his children.
The Tribunal is also not satisfied that the applicant is now a member of his wife’s family unit, given his evidence they are separated. Though still legally married, the Tribunal is not satisfied that he and his wife meet the definition of spouse set out in s 5F of the Act, given it is apparent that the relationship is not genuine and continuing, and that they do not now have a mutual commitment to a shared life as a married couple.
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.
Stefanie Memmott
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.
…