2315808 (Refugee)

[2023] AATA 4745

2315808 (Refugee) [2023] AATA 4745 (19 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2315808

COUNTRY OF REFERENCE:                   Vanuatu

MEMBER:Lilly Mojsin

DATE:19 December 2023

PLACE OF DECISION:  Sydney

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

Statement made on 19 December 2023 at 11:19am

CATCHWORDS
REFUGEE – protection visa – Vanuatu – no response to hearing invitation – claimed attack and extortion by gang members – state protection – paucity of information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 425, 426A, 441A
Migration Regulations 1994 (Cth), 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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 September 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant who claims to be a citizen of  Vanuatu, applied for the visa on 30 August 2023.

3. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant would suffer serious or significant harm, within a reasonably foreseeable future on his return to Vanuatu.

4. The applicant appealed that decision to this Tribunal, attaching a copy of the Department decision to the review application.

5. The applicant was invited, pursuant to s425 of the Act, to appear before the Tribunal on 30 November at 9.00 am. The hearing invitation also stated that if the applicant is not able to attend the hearing, he should advise the Tribunal as soon as possible. The hearing invitation also advised the applicant that if the applicant does not attend the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before it, or may dismiss the application for review, without any further consideration of the application or the information before the Tribunal.

6. The applicant did not respond to the Tribunal’s invitation to attend the hearing. The applicant did not attend the scheduled hearing. Nor has the Tribunal received any communication from the applicant to explain his non-attendance.

7. I am satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

8. I find the hearing invitation which was sent to the applicant's email address for service that was given by the applicant to the Tribunal. I am satisfied the hearing invitation was given to the relevant person by one of the methods in s441A and that the prescribed period of notice of the relevant day, time and place of the scheduled hearing has been given. In these circumstances, pursuant to s.426A of the Act, I have decided to make a decision on the review without taking any further action to enable the applicant to appear before it.

   CRITERIA FOR A PROTECTION VISA

9. See Annexure A

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The applicant claims in his protection visa application:

    · The applicant came to Australia as part of the Pacific Australia Labour Mobility (PALM) scheme to move to a safe place, to work hard and pay off ‘debt’ to gang members.

    · Gang members demanded he pay $10000 damages for a car accident in which he was involved.

    · The applicant was beaten and harmed, had his purse stolen when he could not give the gang members the money. The applicant was threatened not to go to the police or he would risk the safety of himself and family.  He was taken to hospital.

    · The gang members returned to the applicant's family home and began demanding money and making threats. The applicant was out of work and not able to pay the amount demanded.

    · The applicant did not make a police report as police will not be able to protect him and his family.

    · If the applicant is returned to Vanuatu he will continue to have to pay money to the gang members, or face being harmed or possibly killed.

11. The applicant did not provide any submissions to the Tribunal.

    REASONS AND FINDINGS

12. On the basis of his Vanuatu passport, I accept that the applicant is a national of Vanuatu and a not national or citizen of any other country or has a right to enter and reside in any country other than Vanuatu. Therefore, I find that the applicant is not excluded from Australia's protection by subsection 36(3) of the Act. I also find that Vanuatu is the applicant’s “receiving country” for the purposes of s.36(2) (aa).

13. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. Similarly, that the 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.

14. The applicant claims that he was involved in a car accident in Vanuatu and a gang attempted to extort damages of $10000. When he did not pay them the money they beat, hospitalised him, threatened him and his family. He was able to leave Vanuatu and come to Australia to work and attempt to repay the money.

15. Without further information from the applicant I do not accept that the applicant claims he fears harm from non-state agents, a gang, for reasons his race, religion, nationality, membership of a particular social group or political opinion but rather for what he did, refuse to pay extortion money.

16. I accept the applicant arrived in Australia under the PALM scheme to work.  As the applicant did not attend the hearing I am unable to explore aspects of his claims with him. Without further information from the applicant, I am unable to be satisfied that the applicant was attacked by a gang or that a gang attempted to extort money from him. 

17. I have considered the applicant’s evidence singularly and cumulatively. I am satisfied the applicant did not suffer serious harm, in Vanuatu, for a refugee reason ie. for reasons of his race, religion, nationality, membership of a particular social group or political opinion.

18. I am required to consider if the applicant will suffer serious harm, for reasons of his race, religion, nationality, membership of a particular social group or political opinion, on his return to Vanuatu, within a reasonably foreseeable future.

19. The applicant claims that he will be harmed by gang members if he returned to Vanuatu and the Vanuatu authorities are not able to provide him with protection from harm.

20. Since 2000, the Australian Government has been involved in assisting the Government of Vanuatu to improve the capabilities of the Vanuatu Police Force (VPF)[1]. In 2011 the Vanuatu Australia Police Project (VAPP) was created and provides support ‘for law enforcement capacity building initiatives, focusing on the recruit training and professionalism of the VPF, infrastructure, workforce renewal and improvement to internal governance.

    [1] AFP across the world', Australia: Australian Federal Police (AFP), Undated, page 10, 20221125085841; 'Australia recommits to second phase of Vanuatu-Australia Policing Justice Program', Pacific Tourism Organisation (SPTO), 3 January 2021, 20221125085312

21. The 2023 United Kingdom Home Office Safety and Security – Vanuatu travel advice report [2] states that crime rates are low, however there has been an increase in crime, particularly street crime and burglaries, which are often accompanied by violence.

    [2] ‘Safety and security - Vanuatu travel advice - August 2023', UK Home Office, undated, 20230802220327

22. The country information[3] demonstrates that the Vanuatu Police Force is a largely professional law enforcement organisation. It is generally seen to be impartial, and has some ability to protect individuals from societal harassment, discrimination and violence, and is relatively accessible. In addition, there is the chief system that provides support to the Vanuatu Police in resolving disputes.

    [3] US State Department Report Vanuatu 2022 Human Rights Report  

23. The applicant has not provided any information why he did not report the claimed attack and extortion attempts by a gang to the police. As stated above, I do not accept that the applicant suffered any harm by gang members in Vanuatu. The applicant does not claim to have suffered any other harm in Vanuatu. 

24. On the evidence before me, I find there is not a real chance the applicant will suffer serious harm  for reasons of his race, religion, nationality, membership of a particular social group or political opinion, on his return to Vanuatu, within a reasonably foreseeable future.

25. Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).

26. I am required to assess if the applicant will suffer significant harm on his return to Vanuatu within a reasonably foreseeable future.

27. The applicant has not made specific claims for complementary protection separate from those put forward in relation to refugee criteria.

28. The applicant came to Australia as a PALM visa worker. As he did not attend the Tribunal hearing I am unable to explore his claims with him therefore I am unable to be satisfied that he suffered any harm in Vanuatu or that he will suffer any harm within a reasonably foreseeable future on his return.

29. Therefore, having considered the applicants' circumstances singularly and cumulatively, I do not accept on the evidence before me, 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 arbitrarily deprived of life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment.

30. Accordingly, I find that the applicant does not satisfy the requirements of s.36(2)(aa) of the Act.

    Conclusions

31. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

32. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

33. 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

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

    Lilly Mojsin
    Member

    
    

    ANNEXURE A

35. 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.

36. 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.

37. 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).

38. 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.

39. 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

40. 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.

    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.

    …