2315040 (Refugee)

2315040 (Refugee) [2023] AATA 4604 (21 November 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2315040
COUNTRY OF REFERENCE:                   Vanuatu
MEMBER:David James
DATE:21 November 2023
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 21 November 2023 at 4:51pm
CATCHWORDS
REFUGEE – protection visa – Vanuatu – fear of harm from neighbouring family/tribe because of land dispute – houses burned and father and brother killed and applicant made sick by black magic – no further harm or threats after relocation to another island – inconsistent claims and evasive and unconvincing evidence – no supporting evidence of house/land ownership or that applicant involved in any incidents – no medical evidence – delays in departing and applying for protection – criminal conviction, imprisonment and immigration detention – intention to remain in Australia – country information – rival chief imprisoned for role in burning – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 411(1)(c), 424AA
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth (1999) 197 CLR 510
ABT16 v MHA [2019] FCA 836
AVQ15 v MIBP [2018] FCAFC 133
Chan Yee Kin v MIEA (1989) 169 CLR 379
Fox v Percy (2003) 214 CLR 118
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
Subramaniam v MIMA (1998) VG310 of 1997
SZLVZ v MIAC [2008] FCA 181
SZRQA v MIBP [2013] FCA 962
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 19 September 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 the Republic of Vanuatu (Vanuatu), applied for the visa on 24 August 2023. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H of the Act and was therefore not satisfied that the applicant was a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Vanuatu, there is a real risk they will suffer significant harm as defined in s 36(2)(aa) of the Act. Therefore, the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
The applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (the Tribunal) on 22 September 2023. The applicant subsequently provided a copy of the delegate’s decision to the Tribunal on 9 October 2023.
As noted above, the applicant provided a copy of the delegate’s decision to the Tribunal. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the applicant a protection visa having considered the material before the delegate. The Tribunal is satisfied that the decision of the delegate is reviewable under s 411(1)(c) of the Act.
The applicant appeared before the Tribunal on 14 November 2023 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A]. The Tribunal hearing was conducted with the assistance of an interpreter in the Pidgin and English languages.
The applicant was not represented in relation to the review.
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.
The criterion in s 5J(1)(a) 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 when the possibility of persecution is below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
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.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.
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 (the Department), 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 OF CLAIMS AND EVIDENCE
Issues
The issues in this review are whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that, if the applicant was returned to Vanuatu they would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Vanuatu, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Documentary evidence before the Tribunal
The Tribunal has before it documents submitted by the applicant to the Department and the Tribunal relating to the applicant’s claims for protection, which includes (but is not limited to) the following documents, considered by the Tribunal:
·The applicant’s protection visa application submitted on 24 August 2023, and the annexed copy of the applicant’s bio data page of his Vanuatu passport;
·The Department’s s 56 (of the Act) ‘Request for more information for a protection visa application’ letter to the applicant of 4 September 2023 in which it was stated that:
In your application, you claimed that you left Vanuatu to work in Australia. You claimed that you don’t have land and have been fighting every day with another tribe.
You claimed that other tribes burned your home and killed people. You claimed that your enemies killed your father and brother using black magic.
You claimed that the authorities in Vanuatu will not protect you. You claimed that if you are returned to Vanuatu, you will be killed and your land will be burned.
Your statement of claims lacks significant details, such as dates and locations, of your claims that you were fighting with another tribe for land, that they burned your home, and that your father and brother were killed. You also did not provide any documents or other evidence in support of these claims.
Therefore, to assist me in assessing whether these claims are genuine, I am inviting you to provide further information about your home being burned down, your fights with the other tribe, and the killing of your brother and father, including dates and locations of events.
In addition, I am inviting you to provide further information and documentary evidence, or other evidence, to support your claims, particularly:
·Further details regarding your fights with the other tribe, and an explanation of why they would target you for harm
·Further details regarding the tribe that you were involved in a fight with, including the name of the tribe, and where in Vanuatu they are located
·Evidence that you owned a property in Vanuatu, for example a title deed in your name
·Evidence that your home was burned down, for example a police report and photographs
·Evidence of any injuries that you sustained during the fights, for example a medical report
·Further information regarding the circumstances surrounding the deaths of your father and brother, including their death certificates and any police reports
In your application, you stated that you fear returning to Vanuatu due to the fact that you will be killed by another tribe. However, you did not apply for a Protection visa until approximately 3.5 years after arriving in Australia. The length of time that passed between your arrival in Australia and when you lodged your application is a matter that raises concerns about the genuineness of your protection claims. Therefore, I am inviting you to provide any comments or information about why this much time passed before you lodged your application.
·The applicant’s 7 September 2023 response to the Department’s ‘Request for more information for a protection visa’ letter, in which he stated that:
Dear Processing Officer,
As per your request, I would like to confirm that I lost my expired passport so I am unable to provide a copy of all pages of my passport to you. I’m currently waiting for the new passport.
In regards to your request on 4th September 2023, my second eldest brother [Mr B] died at the age of [Age] in 2005 over on [Island 1] his death was caused by a dispute between two tribes it was over a jealousy act which got him killed by the chief of the one of tribes As in a custom witchcraft was put on him for his death. The evidence wasn't shown as it was a custom cause of death but we surely know that his death was caused by custom witchcraft from the other tribe on the day of the dispute the chief of the other tribe was saying to our chief of our tribe that he will take our lives one by one til there is nobody left in the tribe for him to gain a custom ritual when he said that I witnessed him speaking of such words but I was only young at that time and that's when I felt afraid to go back to the island as I could end up how my brother [Mr B] did I have not returned to the island since that day, That's when my parents relocated us to [Island 2] as of now all of my siblings have been married and moved out of [Island 2] to live their own lives with their families. I was the only sibling that witnessed that as I didn't have any contact with my other family members back home when I moved here to Australia the day I was leaving Vanuatu my father spoke to me and told me that I couldn't return back home as it was too dangerous for me and told me to make a life of living here in Australia if possible. When my father passed away in 2022 my cousin reached out to me as he came over for work in an agency and told me my father passed away in the same result as my brother and that's when I knew that it was definitely not safe for me to return back home. The attachment of the burning houses is proof of that specific chief of the other tribe destroying the homes of our tribes house's. And to be specific custom witchcraft cannot be dealt with the law as it has its own legacy. If I was to return back home the law will not protect me from custom witchcraft and I could end up dead. The custom witchcraft still puts fear in me to this day as it is not something to ignore and forget about.
The reason I didn't apply for the protection visa was because I was trying to get someone to sponsor me for a permanent residential visa but it was very hard for me to find that kind of help because I wasn't sure how to do the processing of it all as I didn't have much help on this side and more of an understanding of the process of how to apply for protection visa and for the three years I've been here I didn't know about a protection visa if I was aware of it back then I would of applied for it straight away, but now that I'm here in the Immigration Detention Centre and know more of the ABF procedures I'm fully aware of knowing how to apply for a protection visa and I feel that the protection.
·A copy of a [Date] news article from [News source], in which it is in part reported that:
[Deleted].
·The applicant’s application for review of 22 September 2023;
·The administrative and movement records of the Department relating to the applicant;
·A letter of support under the hand of [Ms A], dated 27 October 2023 and received by the Tribunal on 10 November 2023;
·The applicant’s submissions in which he refers to several findings of the delegate and comments on same. As to the issue of the applicant remaining in Vanuatu until 2019, approximately two years the incident occurred, he states in reply that:
After the incident happen my parents relocated us to [Island 2] Vanuatu. During the period of 2 years-time we lived in fear, before coming to Austrlia as I’ve already stated in my previous application before I left to come over whilst having my last family dinner my father spoke to me and said to me “son you have been given this opportunity to go work in Austrlia please try and find a way to make a living there as you can see there is a lot of no good things happening over here and our family is not safe living here due to the dispute between our tribe ([Tribe 1]) and the other tribe ([Tribe 2]).
As to the issue raised by the delegate that there is no evidence that the applicant himself was directly involved in the incident or that he was not the target, the applicant submits that:
I’m the applicant myself that was involved in the incident with the preditors and was targeted as I am a member of [Tribe 1] and I carry the blood line of the tribe that is being targeted if I wasn’t involved in the incident, I wouldn’t have the last name of the [Tribe 1] Family tribe and also, I’m scared to return to Vanuatu to that situation.
In relation to the delegate’s findings that the applicant did not provide any evidence that he owned a property that was burned down by the other tribe, the applicant submits that:
Well at the time of the incident I was still living with my parents which I call our family home as I was only at a young age when the incident happened, and our family home burnt down. I call that home mine too at the time if I’m right to speak so of, it was our family home that was notified in the daily news article in 2019 out of the six houses that was mentioned being burnt down our family home was one of them involved which I’ve stated in my previous application. Where the house is located its in a remote area in the country and we don’t have much access to much evidence on that situation and also there is no saved evidence on any device for me to shou yous but at this moment I am the closest to the evidence as I was on of the people involved and also one of the victims.
As to the delegate’s findings in relation to the applicant not providing any evidence that he was harmed by the other tribe and what threats he has received, the applicant submits that:
I myself have face harm and threat the other tribe I have scars as evidence on my body which I can provide to yous in photo’s that was from [Tribe 2] tribe which they tried to use black magic against me. Lucky for me at that time I was taken to a custom witch doctor to stop it quickly this happened to me in March 2018.
·A copy of a photo depicting a number of apparent raised scars on a person’s torso.
Claims for protection
The applicant, in his visa application, made the following claims for protection, as summarised below:
·He left Vanuatu to work in Australia because he and his family were poor.
·He does not have any land and has been fighting for life everyday with another tribe;
·The other tribe burnt down his house and killed some people;
·His enemies (the other tribe) killed his father and brother by black magic;
·There are no laws to protect him in Vanuatu;
·They reported these matters to the police, however it took three years to get justice;
·The Vanuatu police and the village chief cannot assist him;
·He is unable to relocate to another area of Vanuatu as everywhere has the same problems; and
·He fears that if he is returned to Vanuatu he will be killed, and his land will be burned.
Department interview
The applicant was not interviewed with the Department.
Delegates decision
The delegate’s decision of 19 September 2023 to refuse the protection visa was made on the information before the delegate. The delegate accepted that an incident had occurred where houses were burnt down in a dispute between [Tribes 1 and 2]. However, the delegate found that there was no evidence that the applicant himself was directly involved in the incident or that he was the target of the perpetrators. Furthermore, noting that the applicant remained in Vanuatu until 2019, approximately two years after this incident occurred despite claiming to fear harm, and that he did not lodge his protection visa application until approximately six years after the incident, the delegate found that the applicant’s claims were not credible. Therefore, the delegate was not satisfied that the applicant met the criteria in s 5H(1) of the Act, and therefore was not a refugee. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Vanuatu, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act. In that regard, the delegate found that the applicant could obtain protection from an authority of Vanuatu, such that there would not be a real risk that the applicant would suffer significant harm as defined in s 36(2A) of the Act.
Invitation to attend hearing

On 25 October 2023, the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on 14 November 2023 at 9:30 am. This correspondence advised the applicant that the Tribunal had considered all the material before it relating to their application, but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the case without further notice.
Country information
Air Vanuatu reports on their webpage as to the ‘Mysteries of the Vanuatu Black Magic’ that:
While Vanuatu is often associated with beautiful beaches, lush forests and an endless array of adventures, there is a more mysterious side to it. Black magic plays an important part of the local culture. Belief in powerful spirits remains strong throughout the archipelago and many witch doctors continue to practice the ancient rituals to this day.
For those who seek to learn more about this side of Vanuatu’s culture, a visit to Tanna, Ambrym and Malekula would be a good idea. However, even in more modern Efate and the capital Port Vila, traces of black magic still endure.
In fact, if you visit the Secret Garden on Port Vila’s fringe, a black magic demonstration can often be witnessed. This involves planting a jungle shrub in a shallow hole and challenging visitors to pull it from the ground – volunteers are said to be unsuccessful with the task.[1]
[1] ‘Mysteries of the Vanuatu Black Magic Tours’, Air Vanuatu – stagingtm.airvanuatu.com/home/travel-information/vanuatu-black-magic-tours
The Australian Broadcasting Corporation (ABC) posted a report on 2 December 2014 entitled, ‘Vanuatu police arrest at least 20 people over witchcraft hanging deaths’, in which it was in part reported that:
Vanuatu police have arrested at least 20 people over the hanging deaths of two men accused of sorcery.
Police said they were investigating the incident, which took place in November, as a homicide.
The editor of the Vanuatu Independent, Tony Wilson, said it was likely there would be more arrests because the double hanging had been witnessed by over 40 people on Akam Islands.
Mr Wilson told Radio Australia's Pacific Beat program the case was unprecedented.
"It has taken everyone by surprise, there's a lot of people shocked by it, police absolutely shaking their head in amazement," he said.
No charges have yet been laid but those arrested were being held by authorities, Mr Wilson said.
Last week, former Vanuatu cabinet minister Willie Jimmy called for witchcraft to be made a crime punishable by death following the deaths.
He said he wanted the country's legal system changed so people suspected of practising witchcraft could be prosecuted.
"I think we have a problem with our judicial system here," he said.
"Until the parliament passes a law to do with sorcery and all this black magic, we will have an alternative option on how to handle these people who commit these crimes."
He said he believed the legal process should take its course "but it should not leave the matter there".[2]
[2] ‘Vanuatu police arrest at least 20 people over witchcraft hanging deaths’, Australian Broadcasting Corporation, 2 December 2014 - >
In the Australian National University’s ‘The Vanuatu-Australia Policing and Justice Services Study of May 2023; it was reported that:
Australia has provided assistance to the Vanuatu Police Force (VPF) since the early 1990s and to the justice sector since the mid-1990s. The two programs were combined in 2014, and the current program — the Vanuatu-Australia Policing and Justice Program (VAPJP) — is in its second phase, with the design updated in 2020 to map out Australia’s continued support. The end of program outcomes for the VAPJP are: improving the quality and reach of justice and policing services; women, children and youth increasingly accessing state policing, justice and community services; and policing and justice agencies continuing to maintain public security and the rule of law.
As a baseline study for the VAPJP, a telephone based survey of 1016 adults and nine focus groups with 91 participants was conducted in 2022. The key results from this study form the body of this report, along with key implications and recommendations that emerged from the study. Key findings Perceptions of safety…
More than 90% of respondents felt very or somewhat safe while at home in the daytime or night and while walking around the community in the daytime. Fewer people (84.2%) felt safe at the weekend, while walking around the community at night (72.7%), or during big celebrations (55.5%).[3]
… Not many respondents (13.8%; n=140) indicated they had been a victim of crime in the past 12 months. The most common crime in the past 12 months was assault (23.6%), followed by threatening behaviour (16.4%) and theft (15%). Domestic violence was the fourth most common.
Just under half (45%) of this small cohort had not reported being a victim of crime to the police. Reasons for not making a formal report or statement to the police included dealing it with themselves (44.4%) and that the crime was not important (28%). Statistical analysis revealed no significant differences by age, gender or other socio-demographic variables. Approximately two-thirds of survey respondents — between 62.2% and 69.6% — believed police have improved in the past two years across six police functional areas, including providing appropriate services to victims of domestic/family violence and keeping communities safe. Criticisms of the police were made in every focus group, with young people talking about poor relations between young men and police, and poor behaviour by the police often resulting in violence by police towards young men…[4]
More than half of the survey respondents in the current study said it was either very easy or somewhat easy to access police services when they needed them, but one in 10 did say they were inaccessible. What was apparent from the survey results and focus group discussions was that the police are often only called upon when their assistance is needed because the matter is important or they are the only ones seen as being able to deal with the particular crime or situation. In many cases the police are being contacted by phone — to report a crime or to contact them for other matters — and it is not known from the responses whether the call was answered or whether the police responded appropriately and in a timely fashion. Certainly, in the focus groups, there were complaints about having to fund the police to visit a village or community, and their slowness to respond to and progress the case. When the police do respond to a request for assistance, the survey indicates that most people are satisfied with how they handle an enquiry or a report of a crime. The majority (65.9%) of those who had contacted the police in the past year were satisfied or very satisfied with the way police handled their enquiries. There was a slightly lower proportion of respondents (52%) who had reported a crime who were either very or somewhat satisfied with the way the police addressed the report. Although there were some positive comments, the most trenchant criticisms of the police were heard during the focus groups, especially from young people, in which much was said about the often poor relations between young men and police, with instances of bullying and undue physical force by police being referred to.[5]
[3] ‘The Vanuatu-Austrlia Policing and Justice Services Study’, May 2023, Putt & Dinnen, Department of Pacific Affairs, Australian National University at page 1
[4] Ibid at page 2.
[5] Ibid at pp 37 and 38.
As to the Judiciary in Vanuatu, the United States Department of State in their report on human rights practices in Vanuatu in 2020 reported that:
There is an independent ands impartial judiciary for civil matters, including human rights violations. The government, including police, generally complied with court decisions on human rights violations.[6]
[6] ‘Country Reports on Human Rights Practices for 2022 – Vanuatu’, US Department of State, 20 March 2023, p 4.
This report also noted that the Vanuatu Constitution prohibits arbitrary arrest and detention and provides for the right of any person to challenge the lawfulness of his or her arrest or detention in court, and that the government generally observed these requirements.[7]
[7] Ibid at pp 2 & 3.
Review hearing – 9 November 2023
The Tribunal explained to the applicant that the hearing would consider the applicant’s application for a protection visa afresh.
Under questioning, the applicant informed the Tribunal, that he had completed his application for the visa, his reply to the Department’s ‘Request for more information’ and his submissions to the Tribunal in which he responded to some of the delegate’s findings in the ‘Protection Visa Decision Record’. Under further questioning he told the Tribunal that all the information contained in those documents was true and correct.
The applicant, when questioned by the Tribunal as to his understanding of the relevant statutory framework and concepts as to the refugee and complementary protection criteria, said that he had been given explanations about the criteria by a lawyer in the past and that he understood the criteria.
Given the applicant appeared before the Tribunal alone and was not represented in the review, the Tribunal provided a brief outline of the refugee and complimentary protection criteria to the applicant. The applicant subsequently acknowledged that he understood the criteria.
The applicant told the Tribunal that he had arrived in Australia in December 2019 on a Pacific Islands working visa that had been arranged through [a farming employment agency]. He said that after he arrived in [City] he was taken to [Town] where he was accommodated on a farm and worked [doing a job task] for about three months. He explained that the farm had been damaged by a cyclone or large storm and so he was then transferred to another farming company who employed him on a farm in [City], where he also [did a job task]. He said he worked at the [City] farm for about 12 months before obtaining further employment with [Employer], who employed him as [an Occupation] in a [workplace] on another [farm] in the [City] area. He said he remained working at the [workplace] until 2021 when he was charged with a Domestic Violence Order breach, obstructing police, and later breaching his bail conditions by not signing in at the police station as required. He explained that he was subsequently imprisoned for ten months in relation to these offences and upon his release he had been taken into Immigration detention where he presently remained.
The applicant later explained that whilst in Immigration detention he had inquired as to obtaining a permanent visa or having someone sponsor him for work so he could remain in Australia. He told the Tribunal that he had applied for protection after being told by a lawyer who visited the Detention centre that he could apply for protection if he had fears about returning to Vanuatu. He told the Tribunal that because he held fears for his safety arising from a Tribal dispute, he had made his application.
He told the Tribunal that he had been brought up by his parents in their family home on [Island 1] with his [brothers] and sister. He said that there had been a long running tribal dispute between his family, the [Tribe 1] family, and their rival tribe, the [Tribe 2] family. He explained that the two families lived in the same village on the Island but had been in dispute for many years over who should control and use the surrounding land.
The applicant told the Tribunal that he had witnessed fighting between the two families when he was about [Age]. He said he saw some of the young men fight each other in the village using clubs and knives and that some of them had been injured in this fight. He explained that one or two years later, in about 2005, one of his brothers had become ill and was taken to the hospital. He said his family were told that his brother’s body was not producing white blood cells and he became very unwell and small in stature before he died. He said that his family and tribe believed that his brother’s death was a result of witchcraft on the behalf of the [Tribe 2] family and that he believed that [Mr C] had killed his brother through witchcraft.
The applicant, in reply to the Tribunal, said that he did not have any medical reports or any other documents from the doctors and/or the hospital as to his brother’s treatment and/or the cause of his brother’s death. He told the Tribunal that he did not think he needed to provide such information to the Tribunal and that as he had been in detention, he had lost all his contact details from his phone and could not contact anyone to obtain such information.
He also told the Tribunal that, although the [Tribe 2] family chief was a sorcerer, the [Tribe 2] family had also accused his family of witchcraft. However, the applicant did not provide any details of these allegations or any information as to when and on what basis these allegations had been made against his family.
The applicant told the Tribunal that, [in] 2017 the [Tribe 2] family had burnt down his family home at [Island 1]. Under questioning the applicant referred the Tribunal to his application and his response to the Department saying that he had already provided all the information about this and given the lapse of time he did not have a good memory of these events.
He said that he recalled the family home being burnt down [in] 2017 at [Time]. Under further questioning, he referred the Tribunal to the [News source] [article], which reported the conviction and sentencing of [Mr C] [in] relation to that incident.
The applicant was then questioned as to his claim that this matter had been reported to police but that it took three years for his family to get justice. The applicant told the Tribunal in reply that the burning down of his family house and other houses had been reported to the police at the time and it had taken two or three years for the police to have taken action and [Mr C] to have been imprisoned.
The Tribunal then in accordance with the provisions of s 424AA of the Act, highlighted to the applicant that it had been his evidence that the burning down of his family home had occurred [in] 2017, yet the [News source] article, which was dated [on the same date], reported the conviction and imprisoning of [Mr C] for the fire on that date. It was also highlighted to the applicant that it had been his evidence that he and his family had waited two to three years for justice. When asked to explain this inconsistency in his evidence and the [News source] article as to the date of the fire, he replied that he had been in detention and it had been difficult to get material and he cannot remember everything as his mind is not a computer.
Under further questioning, the applicant agreed that he and his family left [Island 1] in or around 2005 after his brother had died. He said his parents, his other [siblings] relocated to [Island 2] where he worked in [Work sector]. He agreed that, while in [Island 2] he and his family were not approached, threatened or harmed by any of their enemies from the [Tribe 2] family and tribe.
The applicant told the Tribunal that his family returned to [Island 1] in around 2014 and 2015, but that there was nothing much for them there as the families were still in dispute over the land and there was much fighting about who gets to use the land.
Under questioning, he agreed that neither he or any of his immediate family were threatened or harmed by the [Tribe 2] family until their home was burnt down. He said that the burning down of their house was reported to the local chiefs and the police. However, after waiting for a decision from the local Village Court for an order of compensation, his family decided not to wait for the decision of the local Village Court, and instead they returned to [Island 2].
Once he had relocated with his family to [Island 2], he said that he decided to find a way to come to Austrlia as he wanted to get away from the family dispute.
Under questioning, he agreed that while in [Island 2], he and his family had not been approached or threatened by any member of the [Tribe 2] family. However, he said that in 2018 he had become unwell and developed sores over his body as depicted in the photo he had provided to the Tribunal. He said that he was hospitalised in [Island 2] and nearly died. He explained that the doctors found no reason for his illness, but that he had suffered similar symptoms to that of his brother who had died in 2005. He told the Tribunal that the cause of his illness had been witchcraft and that [Mr C] had caused him to nearly die through his witchcraft.
The applicant under further questioning told the Tribunal that he had received a hospital discharge report when he left the hospital in [Island 2] and that it had reported that there was no known cause for his illness. When questioned further, he told the Tribunal he did not have that report, and as he had been detained, he was unable to obtain a copy of that report from either the hospital or any of his family who remained in Vanuatu.
The applicant told the Tribunal that his other brother now lived near [City 2 in Australia] and had been granted protection because of his fears of the [Tribe 2] family and their witchcraft and so he should likewise be granted protection as he fears returning to Vanuatu.
He said that his sister had since married and continued to live in Vanuatu with her husband and that they had not been approached, threatened and/or harmed by the [Tribe 2] family. However, he told the Tribunal that he was in danger as his father had since died in 2020 from a mystery illness in which he had displayed the same symptoms that he and his brother had suffered. He told the Tribunal, that as the hospital did not know the cause of his father’s illness and death, it was also a case of witchcraft from the [Tribe 2] family. Under further questioning, he said his father had suffered a stomach complaint and, after seeking treatment at the hospital in [Island 2], he had died. Again, he said he did not have any medical reports or hospital records as to his father’s illness and death.
He explained to the Tribunal that it was not what the hospital could find or could say caused his brother’s and father’s death, but rather how they had become sick. He said it was witchcraft from the [Tribe 2] family that had caused his brother and father to fall ill and die, and if he returned to Vanuatu, he would also be killed in the same way by the [Tribe 2] family through their witchcraft.
When questioned about his ability to have relocated to [Island 2] where he had not been approached, threatened and/or harmed by the [Tribe 2] family, but for his claim of being made ill by witchcraft. In reply, he told the Tribunal that the [Tribe 2] family could come to [Island 2] at any time and do him harm through witchcraft. He said he would not be safe anywhere as they had already killed his brother and father and would kill him also through witchcraft if he returned to Vanuatu.
The Tribunal further questioned the applicant in relation to obtaining protection from the police who had charged and convicted the [Tribe 2] family chief in relation to the burning down of his family’s home. He said in reply, that he did not trust the police as they were corrupt, and his government was unstable and often having elections. He further explained that the authorities were only interested in themselves and would not be able to protect him from the [Tribe 2] family’s witchcraft.
When asked whether he wished to make any final submissions, the applicant told the Tribunal that he was scared for his life, and although he does not know much about the law he has human rights, and as he is scared for his life he should be allowed to stay in Australia.

At the request of the applicant, the Tribunal contacted [Ms A] who then appeared by telephone and gave oral evidence in accordance with her letter of support. She told the Tribunal that she had met the applicant after he had arrived in Australia and that they had a family connection through Vanuatu. She said that the applicant had told her that he was scared of returning to Vanuatu because of a land dispute involving his family in which his brother and father had been killed through witchcraft. Under questioning she told the Tribunal that she believed witchcraft was still being used in Vanuatu and that the applicant was in danger of being harmed through witchcraft if he returned to Vanuatu.
FINDINGS AND REASONS
The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa.
Country of reference
According to his protection visa application, the applicant claims to be citizen of Vanuatu and provided a copy of his Vanuatu passport to the Department. Based on this material, the Tribunal finds that the applicant is who he says he is, and a national of Vanuatu. Vanuatu is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
Analysis
The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.
The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[8] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish, or assist in establishing, the claim.[9] This is consistent with the established proposition that it is for the applicant to make his or her own case.[10]
[8] Section 5AAA of the Act.
[9] Ibid (with effect from 14 April 2015).
[10] Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. 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 of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[11] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[12]and notes that in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.
[11] Fox v Percy (2003) 214 CLR 118
[12] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[13] A similar approach is taken in the Department’s Refugee Law Guidelines[14] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[15] which both provide useful guidance for this Tribunal.
[13] SZLVZ v MIAC [2008] FCA 1816 at [25].
[14] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
[15] UNHCR, re-issued February 2019 at [203]–[204].
The Tribunal found the applicant to have been evasive at times during the hearing when questioned as to his claims and evidence, often referring the Tribunal to his earlier written claims and stating that he had already provided the relevant information to the Department and/or the Tribunal. When confronted with inconsistencies between his evidence and his written claims and his reply to the Department’s request for more information, he told the Tribunal that he did not have a good memory, or that as he had been held in detention, he had been unable to properly prepare for his hearing.
The Tribunal, having had the benefit of assessing the applicant as he gave his oral evidence and while he was questioned by the Tribunal, found the applicant to be an unconvincing witness and an unreliable historian.
Land dispute with the [Tribe 2] family and fears of harm through witchcraft
The applicant claims that if he returns to Vanuatu, he will be harmed and/or killed by the [Tribe 2] family, most likely through witchcraft, because of a long-standing and ongoing land dispute between his family and the [Tribe 2] family as to the land surrounding their village on [Island 1].
Notwithstanding the Tribunal’s observations of the applicant’s overall credibility, the Tribunal is satisfied that the applicant is a member of the [Tribe 1] family from [Island 1] and that his family has been involved in a long-standing dispute with their rivals in their village, the [Tribe 2] family. It is accepted that this dispute, which has been the subject of un-finalised complaints before the Village Chiefs and the Courts, has involved some physical violence between younger members of the families over time. Additionally, the Tribunal accepts that, as reported by [News source], members of the [Tribe 2] family prior to 2017 were responsible for the burning down of the [Tribe 1] family’s house at [Island 1], and that [Mr C] and others were subsequently arrested and sentenced by the Vanuatu authorities in relation to that incident.
However, the applicant has not provided a level of detail necessary to satisfactorily establish the relevant facts of this case in support of his claims. Further, it is noted that, despite having received an unfavourable decision from the delegate, the applicant has not sought to obtain and/or provide any documents in support of his claims to the Tribunal prior to, or at, his Review hearing.
In that regard, the Tribunal notes that the applicant has not provided any evidence in support of his claim that his family owns land and/or a house on [Island 1] and relies solely on the [News source] article of [Date], which reports that the burning down of houses at [Island 1] was a result of dispute between the [Tribes 1 and 2] families. However, although members of the [Tribe 2] family are specifically identified in the article, the applicant is not referred to as having been involved.
Additionally, the applicant has not provided any medical or other evidence in support of his brother and father having been murdered, or himself having been purposely infected or induced into illness.
It was also the applicant’s oral evidence under questioning that, since the burning down of his family home some time before 2017, neither himself or any other members of his immediate family had been subject to any confrontations, threats and/or actual harm at the hands of any [Tribe 2] family members, but for his claims as to the deaths of his father and brother and his illness all supposedly caused by the witchcraft of [Mr C]. As such, the applicant has not in the view of the Tribunal provided any evidence of him having faced any harm from the [Tribe 2] family or any evidence that he will face any harm from the [Tribe 2] family if he was to return to Vanuatu.
Therefore, for the reasons outlined above, and given the passage of time since the applicant’s home was burnt down, the absence of any incidents of threats having been made to the applicant, or he having been harmed in anyway by any member of the [Tribe 2] family, the Tribunal is not satisfied that the applicant does face a real chance of harm if he was to return to Vanuatu in the reasonably foreseeable future.
Further, the Tribunal notes that, as reported in the [News source] article, which was relied upon by the applicant, the Vanuatu authorities did take action through the arrest, conviction and subsequent imprisonment of [Mr C] in relation to the burning down of the applicant’s family home on [Island 1]. Therefore, the Tribunal finds that the applicant can, if he so needs to, or believes he needs to, obtain from an authority of Vanuatu protection, such that there would not be a real chance of the applicant facing persecution involving serious harm or a real risk of significant harm if he was to return to Vanuatu on account of this land dispute with his family’s rival tribe and/or family, the [Tribe 2] family.
In this regard, the Tribunal also notes that, in the two periods that the applicant relocated to [Island 2] with his family from their home on [Island 1], he and his family were able to support themselves and were not the subject of any threats and/or harm from members of the [Tribe 2] family, but for the claimed illnesses and deaths of family members purportedly from witchcraft.
Finally, the Tribunal notes that the applicant arrived in Australia [in] December 2019 and subsequently made his application for a protection visa whilst in immigration detention on 24 August 2023, over two and half years after arriving in Australia. The Tribunal finds that this delay is inconsistent with the applicant’s claims being genuine. In that regard, the Tribunal has considered Anadaraj Subramaniam v MIMA (1998) VG310 of 1997, where the Court held that even a three-month delay in lodging a protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant’s fears of persecution; and SZRQA v MIBP [2013] FCA 962 at [17] where the Court found no want of logic in the Tribunal reasoning, in circumstances where the applicant had obtained his student visa fraudulently, that the applicant ought reasonably to have realised that he was vulnerable to deportation, and that if he were in genuine fear of persecution he would not have delayed applying for a protection visa. The Tribunal in this regard notes the applicant arrived in Australia on a student visa with the support of his Vietnamese employer to complete studies which he failed to commence. Therefore, although this delay is a factor that the Tribunal has considered, it has placed little weight on this issue and has rather relied upon the inconsistent and vague evidence of the applicant in rejecting the applicant’s evidence and rejecting his claims.
Refugee criterion
Based on the information before it, the Tribunal rejects the applicant’s claims of fear of persecution in their entirety and, having considered all of the applicant’s claims both individually and cumulatively, finds there has been no evidence of persecution or fears of persecution for the reasons provided in s 5J of the Act.
Additionally, on the information before it, the Tribunal is satisfied that the applicant could, if he so needed, avail himself of effective state protection on his return to Vanuatu. Therefore, the Tribunal finds that the applicant does not face a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal finds that the applicant’s fears of persecution are not well-founded as required by s 5J of the Act and therefore, the applicant is not a refugee within the definition of s 5H of the Act.
For the reasons provided 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) of the Act.
Complementary protection
Having concluded the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has also considered whether the applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
As noted above, the Tribunal is not satisfied that any of the applicant’s claims meet the refugee criterion. It is for the same reasons that the Tribunal is not satisfied that the applicant meets the refugee criterion, that it is also not satisfied that the applicant meets the complementary protection criterion. Given the evidence before it, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vanuatu, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
The Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Additional findings
Additionally, there is no suggestion that the applicant satisfies 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa.
As the Tribunal has found that the applicant does not meet the refugee and complimentary criteria and does not satisfy the criteria in s 36(2) of the Act the Tribunal has not found it necessary to assess s 36(3) of the Act as to whether the applicant has a right to enter and reside in a country other than Vanuatu.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
David James
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 4604

21 November 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice