2315472 (Refugee)

[2024] AATA 436

2315472 (Refugee) [2024] AATA 436 (17 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2315472

COUNTRY OF REFERENCE:                   Vanuatu

MEMBER:Shahyar Roushan

DATE:17 January 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 January 2024 at 10:12am

CATCHWORDS

REFUGEE – Protection Visa – Vanuatu – loan shark – debt – threats of harm from ex-partner’s family – significant inconsistencies in applicant’s evidence – credibility concerns – fabricated claims – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 56, 441, 426, 499

Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

BACKGROUND

1. The applicant is a [age]-year-old national of Vanuatu. He arrived in Australia on [date] September 2022 as the holder of a Temporary Work (International relations) (subclass 403) visa and lodged an application for a Protection visa on 8 August 2023. On 27 September 2023, a delegate for the Minister of Home Affairs refused to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’). This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).

   CLAIMS AND EVIDENCE

   Protection visa application

2. According to his Protection visa application, the applicant was born in [City 1], but resided in [a town], Vanuatu. He is Catholic and has ‘never married’. He has never been employed and has never studied.

3. In response to questions in relation to his reasons for claiming protection, the applicant made the following claims.

4. He was acting as ‘guarantor’ for his friend, ‘[Mr A]’, in relation to a bank loan to buy a car. Seven months later he received a letter from the bank requiring him to pay all outstanding amounts, including the interest, totalling $9,000. He was advised that the debt must be settled ‘before the bank takes legal action’. His friend also borrowed $10,000 from a ‘loan shark’ in the applicant’s name ‘as a guarantor’. The applicant was ‘very annoyed’ that his friend had borrowed money from a loan shark without informing him. After a few months, [Mr A] escaped and the applicant ‘failed to keep track of’ him. The money lender called the applicant ‘often’ and threatened him. The applicant insisted that he was not the ‘main borrower’, but the lender did not accept this. The money lender also ‘sent people to disrupt [his] family safety’. His car mirrors were broken, and his house ‘was often approached by them’. They ‘tried to threaten [his] family at home’. His family were ‘always locked in the house in a state of fear’ and did not ‘dare to file a police report’. The applicant did not go to work because they physically assaulted him ‘in the middle of the road’. Eventually, he sold his car and paid half of the loan owed to the bank as well as the loan shark and travelled to Australia to work for his ‘sponsor’.

5. The applicant did not file a police report because he felt that the police would not protect him and his family, and it would take a long time for the authorities to investigate the matter. The ‘group’ had also threatened to ‘fracture [his] hand’ if he were to make a police report.

6. His friend, ‘[Mr B]’, has escaped, has left the applicant with a debt and has harmed his family’s ‘privacy, life and safety’. He will be harmed by the loan sharks if he were to return to Vanuatu, unless he pays the remainder of the money owed.

7. Departmental records indicate that the applicant was not invited to attend a Protection visa Interview.

   The delegate’s decision

8. The delegate was not satisfied that there is a real chance or a real risk that the applicant will suffer serious or significant harm on return to the Solomon Islands on the basis of his claims. Therefore, the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Act.

   The review application

9. On 28 September 2023, the applicant applied for a review of the delegate’s decision to the Tribunal.

   The hearing

10. On 14 December 2023 the Tribunal wrote to the applicant advising that it had considered all the papers relating to his application, but 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 on 9 January 2024.

11. On 3 January 2024, the applicant wrote to the Tribunal, stating:

    I am not able to attend the hearing on the date of 9th January. Please be advised I am eligible for video conference and want to reschedule the date and time.

12. The Tribunal responded to the applicant on the same date, advising him that, on the basis of the information provided, the hearing would not be rescheduled. However, he would be able to attend the hearing at the scheduled date and time via video.

13. The applicant appeared before the Tribunal on 9 January 2024, via video from Queensland to give evidence and present arguments. Where relevant, the applicant’s oral evidence at the hearing is referred to in the Tribunal’s analysis below.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Relevant law

14. 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.

15. 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.

16. 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).

17. 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.

18. 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

19. In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    Analysis, reasons and findings

20. For the following reasons, I have concluded that the decision under review should be affirmed.

21. I did not find the applicant’s evidence to be reliable or credible. In reaching this view, as explained below, I have had regard to the significant shifts and inconsistencies in the applicant’s evidence throughout the process and introduction of entirely new claims at the hearing.

22. At the hearing, the applicant claimed for the first time that he feared returning to Vanuatu due to having entered into a new relationship following his arrival in Australia. He claimed that in Vanuatu, he resided with a girlfriend. They were together for 18 months and have a [child]. His girlfriend’s family have found out about his relationship in Australia and have threatened to kill him if he were to return, as he has breached cultural norms and customs. He claimed that these threats were communicated to ‘friends’ who then conveyed the threats to the applicant. He stated that he did not know how his girlfriend’s family had found out about his relationship, and perhaps ‘someone’ had called them.

23. I asked the applicant why he had not raised any of these claims in his Protection visa application. He explained that he had never applied for a visa previously, he was advised by ‘friends’ to tell his story and he thought he would do so in ‘court’. I asked him if he could recall what reasons he had provided in his application form for claiming protection in Australia. He stated ‘maybe’ because there was a ‘cyclone’ and that he wanted to stay in Australia to work. I prompted him by noting that his claims originally appeared to be related to a debt. The applicant then offered a narrative inconsistent with the claims outlined in his application form. He stated that he had borrowed money from a money lender to build a house and was able to pay half of the money owed after he came to Australia. He did not claim to have been harmed in any way or to fear harm in connection with any alleged loan and stated that he intended to repay the remainder of the debt. He was unable to offer a meaningful explanation when I put to him that his story in relation to the loan or debt is different to the claims he had put forward in his application form, which characterised him as a guarantor for a friend who had borrowed money from a bank and a loan shark.

24. I discussed with the applicant my concerns regarding the credibility of his evidence, namely his presentation of different stories throughout the process as the basis of his claims for protection. He responded that his claim regarding his girlfriend in Vanuatu is the ‘main story’. I pressed the applicant further as to why he had not raised the claims regarding his relationship in Vanuatu in his Protection visa application. He responded that his English language skills are not good and the story about his girlfriend was too long, so he wrote about the ‘money’. I did not find this response persuasive in explaining why the matters he had raised at the hearing were not mentioned, even tentatively, in his application form. The applicant presented his evidence at the hearing in English without any difficulty. He is relatively educated, stating at the hearing that he had completed his secondary schooling in Vanuatu. He is also well-travelled, having previously resided in [two countries] for six and seven months respectively. I do not find the applicant’s new claims at the hearing to be credible. I am of the view that these late claims have been manufactured to achieve a favourable immigration outcome. Therefore, I do not accept the applicant’s evidence regarding a serious or de-facto type relationship with a girlfriend in Vanuatu. I do not accept that his relationship in Australia has resulted in anyone in Vanuatu becoming upset or angry. I do not accept that anyone has threatened to harm or kill him upon his return to Vanuatu for the reasons he has provided. I do not accept that the applicant fears being harmed on these bases.

25. I have also formed the view that the claims set-out in the applicant’s Protection visa application are not credible. In reaching this view, I have had regard to the applicant’s inability at the hearing to recall the protection claims he had put forward in his visa application form, particularly in view of the fact that his Protection visa application was lodged only five months earlier, his inconsistent accounts in relation to the debt when prompted, and his inability to offer a persuasive explanation for these significant inconsistencies. Therefore, I do not accept any of these claims. I do not accept that the applicant was acting as ‘guarantor’ for his friend in relation to a bank loan to buy a car and/or in relation to a further loan obtained from a loan shark. It follows that I do not accept that he was put under pressure by the bank or the money lender to repay any money owed by his friend, that he was approached, harassed and threatened by the money lender, that he was unable to go to work, that ‘people’ were sent ‘to disrupt [his] family safety’, that his family lived in fear, that his car mirrors were damaged, and he was assaulted or harmed in any way. Furthermore, I do not accept that the applicant had personally borrowed money from anyone in Vanuatu or that he owes a debt. I do not accept that he fears being harmed for any reason connected to any unpaid debts as a borrower or guarantor. The applicant did not purse any claims of fear of harm on the basis of ‘cyclones’ or other environmental factors in Vanuatu and I do not accept that he holds a genuine fear of harm on this basis.

26. For all the above reasons, I do not find the applicant’s claims to be a reliable, credible, and truthful. His evidence shows a propensity to tailor evidence in a manner which achieves his own purpose. I find that the applicant has fabricated his claims to achieve a favourable immigration outcome. Having rejected all of the applicant’s claims for protection, I find that there is no real chance that the applicant will face serious harm in Vanuatu for the reason of his race, religion, nationality, political opinion, membership of any particular social group or any other reason. I am not satisfied that the applicant has a well-founded fear of persecution. He is not a person in respect of whom Australia has protection obligations under s 36(2)(a).

27. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa). For the reasons outlined above, I am not satisfied 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 he will be subjected to any form of harm that would be the result of an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on the applicant for the reasons specified in paragraphs (a)–(e) of the definition of ‘torture’ in s 5(1) of the Act. I am not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer harm that would involve the intentional infliction of severe pain or suffering, either physical or mental, such as to meet the definition of ‘cruel or inhuman treatment or punishment’ in s 5(1). Nor am I satisfied that there are substantial grounds for believing that there is a real risk that he will suffer such harm as to meet the definition of ‘degrading treatment or punishment’ in s 5(1), which refers to an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable. I am not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer arbitrary deprivation of his life or the death penalty. Therefore, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

28. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

    DECISION

29. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Shahyar Roushan
    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.

    …