2316393 (Refugee)
[2023] AATA 4749
•19 December 2023
2316393 (Refugee) [2023] AATA 4749 (19 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2316393
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 12:48pm
CATCHWORDS
REFUGEE – protection visa – Vanuatu – land dispute and political opinion – neighbour occupied land co-owned by applicant – attacked by neighbours and pressured by local politicians to withdraw complaint to police – regained land after court proceedings – application prepared by agent not in accordance with applicant’s instructions – all claims acknowledged as incorrect, and no past harm – came to Australia for work opportunities – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2Any 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 10 October 2023 to refuse to grant the applicant a protection visa [PV] under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Vanuatu, applied for the visa on 13 August 2023.
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.
The applicant appealed that decision to this Tribunal, attaching a copy of the Department decision to the review application.
The applicant appeared before the Tribunal on 30 November 2023 to give evidence and present arguments, via Teams video from [City].
The Tribunal hearing was conducted with the assistance of an interpreter. The Tribunal had regard to the Tribunal's objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by Teams video.
I am satisfied that the applicant was given a fair opportunity to give evidence and present arguments in the format which was utilised. The applicant confirmed that the applicant could hear and see the Tribunal Member and interpreter. I was able to interact with the applicant and was able to maintain line of sight and appropriate communication throughout the proceedings.
I am satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
CRITERIA FOR A PROTECTION VISA
See Annexure A
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant claims in his PV application:
§ The applicant left Vanuatu to save himself from the local government and members of his community.
§ The applicant was forced to withdraw his support for the government party and harassed and questioned by a local NGO.
§ The applicant sought help from the police but was tortured by them.
§ The applicant attempted to relocate to another state within Vanuatu, but the ruling party made it difficult to stay there.
§ The applicant fears that he will be arrested and harassed by authorities and the community if he returns to Vanuatu. He will not be provided with help or protection.
§ The applicant was involved in a land dispute with [Mr A], who had unlawfully occupied land co-owned by the applicant, his nephew and others.
§ [Mr A] attacked and attempted to kill the applicant and his nephew. The applicant made a police report and was pressured by the local politicians to withdraw the complaint.
§ The applicant went through the courts in a process that took 6-8 years and regained possession of the land. After the court case [Mr A] and some politicians began to attack the applicant.
§ The applicant attempted to relocate within Vanuatu, but was spotted, traced and beaten.
In his submission dated 13 August 2023 to the Department, he stated:
I want to explain why I want to seek the protection of Australia. The circumstances arose due to one unfortunate incident in which I was stuck badly without having any fault of mine. I was leading a happy and peaceful life at [Town 1], Vanuatu working as farmer. I was working in a small scale business of farming. I have prime location land near my village. We have land on road. We are three Partner. There was one more partner was my nephew. That land was covered by [Mr A] for small [business]. They tried to cover by temple and converted on that name. Means they were stilled my land. We got actual idea of opposition. When we opposed for that small [business], they attacked on me and my nephew. They tried to kill us. We went to police station and booked F.I.R (First Investigation Report). But Local Politicians supported to opposite party and created pressure on to withdraw of F.I.R.
We went through the court to get back our land. It took almost 6 to 8 years. We won that court matter, we got back our land than we live our healthy and happy life. But then after [Mr A] and few politicians start to attack on me and my nephew. We lived our life under pressure and stress
I was traced even there and was beaten by some people as they considered me to be at fault for the land that was transacted. I went to [my] native village but was spotted there also. I had no other option but to leave Vanuatu. I came to Australia on a visitor visa so that I can spend some time here but here I realized that government of Australia can provide me the permanent protection if I apply for the protection visa. I am attaching here some legal evidences of the charges those were falsely framed against me. I have other papers under my possession in Vanuatu which I will get them translated into English and will send later to the department of immigration and border protection.
I gather some information and decoded to seek the permanent protection of Australian Government. To save myself from the big group of community and the local government. I was forced to withdraw my support to my government. Local ngo group unnecessarily questioned me and harresed me. Yes definitely, as i am taken as a challenge by the government and opposition party.
No further submissions were made to the Tribunal.
At the Tribunal hearing the applicant gave evidence that he is [Age] years of age and single. He has [children], they are [Ages]. They are from different mothers. He lived in [Town 2]. He is supporting his children from income made in Australia. He lived in [Town 1] for 3 years. He finished school in [Town 1] in 2010 and obtained a diploma in [Subject].
He was initially employed in a [company] as [Occupation 1]. He worked there for 5 years in [Town 2], until 2015 or 2016. He then changed jobs to work for [Employer 2], it is [specified] company. He worked for them for 4 years until 2019/2020. He resigned and worked for [Employer 3] as [an Occupation 2]. He worked at that company until he came Australia.
The applicant came to Australia on a 403 visa because salaries are lower in Vanuatu. He came [doing a job task]. He did not get a job in [his field] because he did not bring his certificate. It is hard to get a copy from Vanuatu as his family is not good at IT and so have not been able to send it to him. His 403 visa was for 9 months and he then applied for a 408 visa.
I asked why he applied for a PV and he said that it is visa because he is running out of time and his friends took him to an agent, [Mr B], [a person of a certain ethnicity], in [City] who prepared his application. [Mr B] has made a lot of applications. He did not ask for anything, his details or his stories.
The applicant said that everything in the application was not in accordance with his instructions. When the applicant realised what had been written he tried to look for [Mr B] but could not reach him.
I asked what he fears about returning and he said that he can go back anytime. He does not fear anything he wants to stay in Australia to support his family. He has no problems with anyone in Vanuatu, neither the government nor any person.
REASONS AND FINDINGS
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).
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.
I accept that the applicant’s PV application claims were written without his instructions and he advised that they are not true or correct. Therefore I find the applicant:
§ was not a farmer
§ did not leave Vanuatu to save himself from the local government and members of his community.
§ was not forced to withdraw his support for the government party and harassed and questioned by a local NGO.
§ did not seek help from the police and was not tortured by them.
§ did not attempt to relocate to another state within Vanuatu, but the ruling party made it difficult to stay there.
§ does not fear he will be arrested and harassed by authorities and the community if he returns to Vanuatu and that he will not be provided with help or protection.
§ was not involved in a land dispute with [Mr A], who had unlawfully occupied land co-owned by the applicant, his nephew and others.
§ [Mr A] did not attack and attempt to kill the applicant and his nephew. He did not make a police report and was not pressured by the local politicians to withdraw the complaint.
§ did not go through the courts in a process that took 6-8years for possession of land.
§ was not attacked by [Mr A] and some politicians began to attack the applicant.
§ did not attempt to relocate within Vanuatu, but was spotted, traced and beaten.
I am satisfied that the applicant worked in [Work sector] and came to Australia in order to earn more money.
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.
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.
As the applicant has confirmed that nothing has happened to him when he lived in Vanuatu and he does not fear that he will suffer any harm or serious harm in Vanuatu on his return, 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.
Therefore, the applicant does not satisfy the criterion set out in s.36(2)(a).
I am required to assess if the applicant will suffer significant harm on his return to Vanuatu within a reasonably foreseeable future.
The applicant is a single man with [children]. He wants to remain in Australia to work and support his family because wages are higher in Australia than in Vanuatu. I accept his claim but I note that lower wages affect every person who works in Vanuatu.
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.
Accordingly, I find that the applicant does not satisfy the requirements of s.36(2)(aa) of the Act.
Conclusions
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Lilly Mojsin
MemberANNEXURE A
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
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.
…
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Immigration
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Statutory Interpretation
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Judicial Review
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Jurisdiction
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Procedural Fairness
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