2313757 (Refugee) - [2023] AATA 4423

2313757 (Refugee) [2023] AATA 4423 (19 October 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2313757

COUNTRY OF REFERENCE: Vanuatu
MEMBER:Christine Cody
DATE:19 October 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 October 2023 at 10:16am

CATCHWORDS
REFUGEE – protection visa – Vanuatu – particular social group – women – single mother – gender-based violence – sexual slavery – fear of killing – support organisations in Vanuatu – delay in applying for protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 56, 65, 411, 426, 499
Migration Regulations 1994, Schedule 2
CASES
BZADA v MIC and RRT [2013] FCA 1062
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
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 28 August 2023 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 Vanuatu, applied for the visa on 6 June 2022. The delegate refused to grant the visa on the basis that the claims were not credible.
Relevant law is set out in Annexure A.
The application before the Department[1]
[1] There are no non-disclosure certificates on the Departmental file.
Protection visa application form and passport
The applicant lodged a protection visa application form on 6 June 2022 and provided a copy of the biopage of her passport issued [in] 2018.
Protection visa application forms
According to the protection visa application form, the applicant was born in [a named province], Vanuatu, in [specified year]. Her ethnicity is Melanesian, and her religion is Christian. Her status is separated. She speaks, reads, and writes in both Bislama and English. She resided in [a location in] Port Vila until she left Vanuatu for Australia. She attended school in Port Vila, completing [level] in [specified year]. She was unemployed until she came to Australia [in] January 2020. She provides no details of any family members.
Her protection visa claims were set out in the form as follows:
The country from which this applicant is seeking protection and cannot return to?
Vanuatu
Provide reasons why this applicant left that country or those countries:
I am a single mother who has been a victim of physical and sexual abuse. During the 2 years I lived with him I was often snubbed and beaten. Hard mental abuse was like slapping me, punching me in the face, pulling my hair and pushing me…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2313757 (Refugee)

Details

AGLC: 2313757 (Refugee) [2023] AATA 4423
Case: [2023] AATA 4423
Decision Date: 19 October 2023

CaseChat Overview and Summary

The applicant, a national of Vanuatu, sought a protection visa in Australia. The dispute concerned the applicant's claims of gender-based violence, sexual slavery, and fear of killing, which she alleged would befall her if she returned to Vanuatu. The decision under review was made by the Refugee Tribunal, presided over by Christine Cody.

The primary legal issue before the Tribunal was whether the applicant met the criteria for a protection visa, specifically whether she had established a well-founded fear of persecution for a convention reason or a real risk of significant harm amounting to complementary protection. This required the Tribunal to assess the genuineness and well-foundedness of her asserted fears and to determine if Australia owed her protection obligations. A secondary issue arose from the applicant's failure to attend her scheduled hearing, requiring the Tribunal to consider its ability to make a decision without her appearance.

The Tribunal reasoned that an applicant bears the onus of satisfying the statutory elements for a protection visa, including providing sufficient evidence to establish their claims. The Tribunal is not obligated to make or assist in making the applicant's case. Citing *BZADA v MIC and RRT* [2013] FCA 1062, the Tribunal noted that a failure to attend a hearing can prevent the necessary level of satisfaction from being reached, as it impedes the ability to test and examine claims. In this instance, the applicant did not attend her hearing despite receiving proper notification and reminders. Consequently, the Tribunal was unable to test or examine her claims and, pursuant to s 426A of the *Migration Act 1958* (Cth), proceeded to make a decision on the review without further action to enable her appearance. The Tribunal found that the applicant had not satisfied the criteria for the grant of a protection visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The applicant did not appear before the Tribunal on the day and at the scheduled time and place of the hearing. There is also no record of the applicant contacting the Tribunal by any other means at the scheduled time, or before or after, to explain why she did not attend the hearing. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s 441A(5) and the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the applicant about the hearing. The Tribunal has not received any response. In these circumstances, and pursuant to s 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.CONSIDERATION OF CLAIMS AND EVIDENCECountry of reference The applicant produced her passport issued by the government of Vanuatu to the Department, and the Department accepted that he was a citizen and national of Vanuatu and assessed her claims against Vanuatu. The Tribunal is prepared to accept, for the purposes of this decision, that the applicant is a national of Vanuatu, and that the appropriate country of reference for the assessment of the refugee claims, and the receiving country for the purposes of the complementary protection claims, is Vanuatu.Satisfaction of claims The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169–70). In the circumstances where an applicant does not attend a hearing to which he or she is invited, the Tribunal also notes the decision of the Federal Court in BZADA v MIC and RRT [2013] FCA 1062, where Rangiah J held at [21]:As his Honour correctly found, the Tribunal was unable to reach the requisite level of satisfaction to grant the applicant a visa given his failure to attend the hearing and the Tribunal’s inability to test and examine his claims in evidence. The relevant statutory scheme (ss 65 and 36(2) of the Migration Act) requires the Tribunal to reach a requisite level of satisfaction as to the criterion set out in s 36(2). Satisfaction of the criteria for the grant of a protection visa depends not on a particular matter being established but on the Minister (or the Tribunal standing in the shoes of the Minister) attaining a state of satisfaction as to a number of matters which have to exist for Australia to owe protection obligations to an applicant.

Decision

Reasons for decision

The country from which this applicant is seeking protection and cannot return to?Vanuatu Provide reasons why this applicant left that country or those countries: I am a single mother who has been a victim of physical and sexual abuse. During the 2 years I lived with him I was often snubbed and beaten. Hard mental abuse was like slapping me, punching me in the face, pulling my hair and pushing me to the ground. I’ll be angered hard by him if he doesn’t comply with his request. She was an insane boyfriend, drunk leg and committed a crime. He’s a guy who doesn’t work and always expect money from my hard work. All the money was taken away by him and acted to hit me if I went against his will. My soul and heart fell apart when she was so brave to trade myself for sex gratification for his friend. That unfortunate night I acted and was determined to run away from his house because I couldn’t stand his demonic temperament. He insisted on selling me as a sex slave. I went on to get help from my cousin to hide from him who was incompetent. With his help I survived the threat and intimidation of his actions who acted to kill me alive. But after that I feel very grateful to receive a good job and move to Australia.Did this applicant experience harm in that country? Yes. My ex-boyfriend would act violently if he was too drunk and drugged. And I used to be a victim of it, beaten, punched in the face, hit and kicked. My whole body became sick and bruised. He also insisted on having sex even though I wasn’t willing to. Did this applicant seek help within the country after the harm? No. I became a phobia and was always in fear. My life doesn’t change like being in prison. I felt very depressed and ashamed to tell me about my problems. So I acted quietly without reporting to the police. Did this applicant move, or try to move, to another part of that country? No. I didn’t think I was going to move to Australia. I moved in after getting sponsored by work. Explain what the applicant thinks will happen to them if they return to that country? The same thing, abusement in & out. Does this applicant think they will be harmed or mistreated if they return to that country? Yes. Torturely both mental and physical was be abused.Does this applicant think the authorities of that country can and will protect this applicant if they go back? No. At my country there are organisations or society that are responsible for protecting the rights of women but as mentioned I am afraid to take act because it does not hold directly threatened by my ex former. While I must think, may need Protection on myself and my family too.Does this applicant think they would be able to relocate within that country to an area where they would not be harmed? Yes. I am struggling to protect myself safely after what has I faced on. I don’t want the same things to repeat in my life. I feel safe and freedom here and want to build a new life. The delegate’s decision record[2][2] A copy was provided to the Tribunal by the applicant

Ratio Decidendi

Legal Principle Established

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