2316949 (Refugee)

2316949 (Refugee) [2023] AATA 4679 (13 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2316949
COUNTRY OF REFERENCE:                   Vanuatu
MEMBER:  Rosa Gagliardi
DATE:13 December 2023
PLACE OF DECISION:  Australian Capital Territory

DECISION:
The Tribunal affirms the decision not to grant


the applicant a protection visa.
Statement made on 13 December 2023 at 4:56pm

CATCHWORDS
REFUGEE – protection visa – Vanuatu – no appearance at hearing and application dismissed – no application for reinstatement and consent to decision on papers – guarantor for friend’s loan from bank and money lender – threatened and attacked by money lender and car damaged – no approach to police or attempt at relocation – vague claims and evidence – country information – independent and impartial judiciary – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
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 20 October 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Vanuatu applied for the visa on 19 September 2023. The delegate refused to grant the visa on the basis that the decision-maker in the first instance 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 is a person in respect of whom Australia has protection obligations as outlined in s.36(2) of that 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 he will suffer significant harm as defined in s.36(2)(aa) of the Act.
Engagement with the Tribunal
On 7 November 2023 the Tribunal wrote to the applicant to advise that it had considered the material before it but was unable to make a favourable decision on this information alone. The applicant was therefore invited to a hearing to have been held on 1 December 2023 at 10.00am EST.
The hearing invitation advised that if the applicant was not able to appear as scheduled, for instance if he was not available on this day or believed he would experience difficulty participating in the hearing as arranged, he needed to advise the Tribunal as soon as possible.
The applicant was also asked to provide all documents he intended to rely on to support his case by 24 November 2023. Moreover, the applicant was encouraged to have regard to the reasons set out in the Departmental decision, and to advise the Tribunal of any changes in his circumstances.
In the hearing invitation of 7 November 2023, the applicant was also advised that it was open to the Tribunal to dismiss the case if the applicant failed to appear on the scheduled date and time.
The Tribunal sent the applicant two SMS reminders prior to the upcoming hearing.
The applicant did not appear on the day of the scheduled hearing. To enable the applicant to engage with the Tribunal further, it made an initial dismissal decision which meant the applicant could have the matter reinstated if he applied in writing for reinstatement of the application for review by 15 December 2023. The applicant was advised that in a reinstatement application he should set out why he failed to appear at the hearing and provide any other information he wanted the Tribunal to take into consideration when deciding whether his reinstatement application should be granted.
On 11 December 2023 the applicant wrote to the Tribunal indicating that he would not be attending a hearing and that he gave his consent to the Tribunal to make a decision on the papers without taking further steps to enable him to appear before it.
The Tribunal is satisfied that in the circumstances it can proceed to a decision on the basis of the material before it. This is particularly so as the applicant has provided the Tribunal with a copy of the Departmental decision for the purposes of 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.
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.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant has a well-founded fear of persecution for reasons set out in s.5J(1) of the Act, and there is a real chance that if the applicant was returned to Vanuatu now or in the reasonably foreseeable future, he would be persecuted for one of those reasons and/or whether he would suffer serious harm. In the alternative, the Tribunal is required to consider whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Vanuatu, 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.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant’s claims at the time of application
In his application the applicant was asked why he had left his home country, Vanuatu. He responded:
I was in trouble when I became a Guarantor to my friend to buy a car. After 7 months I have received a letter from the Bank. The letter requires me to pay for all unsettled borrowing costs including interest. All $9000 in debt must be settled before the bank takes legal action. I understand from my friend [Mr A] has escaped out. He also borrowed $10,000 in my name as a guarantor. I felt very annoyed that he borrowed with a loan shark and did not tell me clearly. After a few months I failed to keep track of [Mr B]. The money lender often called and threatened me to pay the loan. I insist on saying I am not the main borrower, but he not accepted because I am the main guarantor. The money lender has also sent people to disrupt my family safety. My car mirrors were broken, my house was often approached by them and tried to threaten my family at home. Were always locked up in the house in a state of fear and did not dare to file police report. I didn’t dare to go to work because they often hit me in the middle of the road, my face was punched and hit my head. My luck was good, till I am getting a job offer in Australia by Company sponsor. I have sold my car and paid half of bank loan and ‘shark loan too’. Then I save myself to Australia.
The applicant wrote “yes” he had experienced harm in his country.
In his application the applicant was asked to provide details about the harm he experienced, the people or persons responsible for the harm, and why they harmed the applicant. He answered:
Totally I was sabotaged from my friend who make my life in trouble, I was a guarantor too but after he was escaped my life was miserable with a lot of debt which is not from myself. I’m like in a big wave and fall into a deep ravine.
The applicant was asked whether he had sought assistance in his country after the harm and if not, why he did not try to seek help. The applicant responded, “no” he did not seek help in his country and:
I didn’t make any police report. I feel nothing will end my problems and it will take most long time for the case to be investigate (sic). I didn’t make a police report because the Group will be continuing act harm me and warn to fracture my hand if I did it. I am thinking that if I make a police report didn’t mean me and my family will fully be protected.
The applicant was asked whether he had moved or tried to move to another part of his country to seek safety. He responded, “no”. Asked to give details about why he did not try to move to another part of the country, the applicant responded:
I decided to move to Australia after I have received the sponsor job from Company while I need Protection to keep me safe.
The applicant was asked what he thought would happen to him if he returned to his country and the applicant replied in writing, “I didn’t think to return to that country at this difficult time, I don’t want to harm myself with continuing threatened and things harm around me, until I work and get enough money to pay all the debt”. The applicant also confirmed he thought that he would be harmed or mistreated if he returned to his country.
The applicant was asked to give details including: the type of harm or mistreatment he was likely to experience; the person/persons who would be responsible for the harm or mistreatment; and why he thought he would be harmed or mistreated. He answered:
The people who will be possible on this situation is my friend [Mr C]. He was suddenly escaped, and I am the victim of him role play. He left me with a lot of debt and harm my family privacy, life, and safety. He is very unresponsible person who make me in trouble. I have to understand my life to settle all the debt he was plan.
The applicant was asked whether he thought the authorities of his country can and will protect him if he returns. The applicant wrote, “No”. He stated, “The authorities will blame us because have trusted people who scammer even its your friend. They just advise us to make a police report to get them investigate”.
Asked whether the applicant thought he could relocate within his country, the applicant responded, “yes” but possibly misunderstood as when asked to provide details about where he could relocate within Vanuatu, he wrote, “I choose Australia because I feel safe and secure here. I believe I will get Protection and feel safe here. I found Australia have a good job opportunity and hope my application was successful”.
From the Departmental decision it would appear that the applicant initially left Vanuatu to work in the Seasonal Worker Program in Australia.
Prior to deciding the applicant’s case, the Department wrote to the applicant on
21 September 2023, acknowledging he had made a valid application and advised him he was able to provide additional information relating to his claims. No further information was submitted to the Department or the Tribunal.
FINDINGS AND REASONS
In assessing the applicant’s credibility, the Tribunal notes that the mere fact that a person claims fear of persecution for a particular reason does not establish the genuineness of the asserted fear, that the fear is “well-founded” or that it is for the reason claimed. A fear of persecution is not “well-founded” if it is merely assumed or if it is mere speculation. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)
In determining whether an applicant is entitled to protection in Australia the Tribunal must first make findings of fact on the claims he or she has made. This may involve an assessment of the applicant's credibility and, in doing so, the Tribunal is aware of the need for and importance of being sensitive to the difficulties asylum seekers often face. Accordingly, the Tribunal notes that the benefit of the doubt should be given to asylum seekers who are generally credible, but unable to substantiate all of their claims.
On the other hand, the Tribunal is not required to accept uncritically any or all allegations made by an applicant. In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
The Tribunal notes that the delegate arrived at a conclusion that the applicant could reasonably avail himself of effective state protection in Vanuatu as the country information stated, among other things:
There is an independent and impartial judiciary for civil matters, including for human rights violations. The government, including police, generally complied with court decisions on human rights violations.[1]
[1]
Before taking into account whether the applicant could avail himself of state protection in Vanuatu, however, the Tribunal is required to be convinced of the strength and genuineness of the applicant’s claims. Unfortunately, in this instance, the Tribunal is not satisfied that the applicant has made out his claims in detail, instead the Tribunal finds that the information provided is unspecific, there is little about locations and dates where key events occurred for example, and the Tribunal has many unanswered questions about the key protagonists in his account who are referred to in only general and confusing terms and on a first-name basis.
For example, had the applicant attended a hearing it would have asked the applicant about the characteristics of his “friend”, (who it appears is called “[Mr A]”) who he claims he became a guarantor for, and why he considered that his friend was reliable enough for him to place himself in such a vulnerable position in the event his friend defaulted. The Tribunal would have explored with the applicant the nature of his friendship with [Mr A], and whether the applicant considered himself in such a strong financial position that he was an appropriate person to go guarantor for this friend, who ultimately it is claimed proved to be totally unreliable as a friend and in terms of his financial commitments.
The Tribunal also has questions about who the personage “[Mr B]” is and why he failed to keep track of him as claimed in his application. The other person in the applicant’s account whose role is unclear, is that of the applicant’s friend “[Mr C]”. The applicant wrote in his application that he was the “victim of him role play” and the Tribunal would have asked the applicant to clarify whether he intended that he was [Mr C]’s victim.
The details about these personages are so vague as to, together with the other difficulties the Tribunal has about the general nature of the evidence submitted, lead the Tribunal to reject that such people ever existed as friends of the applicant in relation to debts or any other matter.
Notwithstanding that an applicant is not required to substantiate their claims with supporting material, in this instance the Tribunal would have expected that the applicant could easily demonstrate that he had been a guarantor for someone who had taken a loan for a car. This agreement would have been set out in official banking documentation, for example.
Had the applicant attended a hearing the Tribunal would have also liked to ask the applicant how his friend was able to borrow $10,000 from a loan shark listing his name as a guarantor without his knowledge. Did the loan sharks, for example, not undertake any scrutiny of the guarantor’s (in this case the applicant’s) willingness and capacity to cover his friend’s debt in the event his friend defaulted on repayments? The Tribunal finds it difficult to accept that loan sharks who are motivated purely by profit as they operate on setting high interest rates, would not have ensured that the nominated guarantor would be in a financial position to repay the loan and interest and would have simply accepted the applicant’s say so.
At a hearing the Tribunal would have encouraged the applicant to provide details about how it was that he came to find out about his friend’s, deceptive actions towards him and whether the applicant had confronted him about the matter at all. The applicant has claimed that the money lender often called him and threatened him to pay the loan. Had the applicant attended a hearing he would have had an opportunity to flesh out the identity of this claimed loan shark and what was said to the applicant when he was being threatened, for example.

The applicant has also claimed that the money lender sent people to disrupt his family’s safety and his car mirrors were broken, his house often approached by “them”, and his family were threatened. The applicant also claims he remained locked in his house in a state of fear. If the applicant was the breadwinner or otherwise, the Tribunal would have asked the applicant at a hearing how long he was confined in this manner and how he met his financial commitments in general if he were not able to work for a period. These are all important and unanswered questions, particularly as later the applicant claimed that he was able to pay half of the bank loan and the shark loan also.
Other questions the Tribunal has is the nature of his injuries when he was hit in the middle of the road, punched to the face and hit on the head, and whether the applicant had sought medical assistance for any injuries.
The applicant claimed in his application that did not dare make a police report concerning the threats and intimidation because the “Group” warned him they would fracture his hand if he did. He had no confidence that if he made such a report his family would be protected. Yet as the Departmental decision indicates the country information illustrates that the Vanuatu Police Force is a largely professional law enforcement agency, which is generally seen as impartial, with some ability to protect individuals from societal harassment, discrimination and violence. It is also relatively accessible.[2]
[2] See, for example, Executive Summary, ‘Country Reports on Human Rights Practices for 2022 – Vanuatu’, US Department of State, 20 March 2023 which states:
Furthermore, the 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 the government generally observed these requirements’.[3]
[3] Ibid., pages 2 and 3.
The Australian Government has also invested in the assistance of the Government of Vanuatu to improve the capabilities of the Vanuatu Police Force (VPF). The VPF has had wide exposure to recruit training, internal governance and capacity building and the partnership has provided the VPF with a standard of policing which is relatively high.[4] This being the case, the Tribunal would have liked to explore with the applicant at a hearing how the country information was not consistent with his claims that there was no point approaching the authorities in relation to his difficulties with his friend who had in effect used the applicant’s name in a false manner by listing him as a guarantor without seeking the applicant’s permission, and the loan sharks and his associates who had threatened him and his family and caused damage to his car and had assaulted him. The applicant claimed that it would take a long time to investigate the matter by the police, but the applicant has not provided any basis for this contention. At a hearing the Tribunal would have asked the applicant that even if it accepted that his fears about returning to Vanuatu were subjective (and the Tribunal does not because it does not accept the applicant’s claims in their entirety), the applicant has not made out that he has an objective fear of returning to Vanuatu.
[4] ‘Australia recommits to second phase of Vanuatu-Australia Policing Justice Program’, Pacific Tourism Organisation (SPTO), 03 January 2021.
On the basis of the information before it, the Tribunal finds the applicant’s claims to be general and lacking detail, particularly in relation to his claimed dealings with [Mr A], [Mr B] and [Mr C] and becoming a bank guarantor unwittingly, for a friend who had borrowed ($10,000) from a money lender/s. The Tribunal notes that the applicant’s narrative is lacking in significant detail also in terms of dates and locations regarding critical events and that his account is not set in any context which would persuade the Tribunal that these events ever occurred or that the persons referred to in his application ever existed.
The applicant not having established his claims, given the vague and undetailed information provided leads the Tribunal not to accept any of the claims that the applicant:
·had a friend called [Mr A], [Mr B] or [Mr C] and the Tribunal rejects that these persons existed.
·the applicant is in debt to a bank and money lenders because a friend/s borrowed money from a bank, and then a money lender, and used the applicant as a guarantor (in the case of the money lenders unknowingly).
·has significant debts to a bank and money lender/s in Vanuatu which the applicant cannot repay as his friend/s defaulted on their repayments and left the applicant to cover the debts.
·was threatened and assaulted by money lenders and associates because he could not repay the debt and hence the applicant remained confined at home unable to attend work because of his fear.
·the money lender/s sent people to disrupt the safety of his family and broke his car mirrors and sent people to approach his house, and his family was threatened at home.
·and his family’s privacy, lives, and safety were compromised by anyone in Vanuatu.
·was often hit in the middle of the road.
·the “Group” will continue to harm him and warned him not to go to the police otherwise they would fracture his hand.
The Tribunal rejects the applicant’s substantive claim that he ever became a guarantor for anyone involving the bank or money lenders and it follows that the Tribunal rejects all consequential claims regarding having been assaulted and having his family’s safety compromised. The Tribunal rejects that the applicant was and is being pursued by any state or non-state actors in his home country.
The applicant has not made out his claims and the Tribunal therefore finds that there is not a real chance that the applicant will face persecution for reasons of being a person who owes money to a bank or money lenders or for any other s.5J reason if he returns to Vanuatu now or in the reasonably foreseeable future. The Tribunal also finds that the applicant will not suffer serious harm because he will not be able to subsist, given he has had work experience in Australia and would have developed skills that he can employ in the Vanuatu economy.
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).
Complementary protection
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 has not accepted that there is a real chance that the applicant faces serious harm from a bank, the state or any other non-actors in Vanuatu, now or in the reasonably foreseeable future. In MIAC v SZQRB [2013] FCAFC 33, the Full Federal Court held that the ‘real risk’ test imposes the same standards as the ‘real chance’ test. As the Tribunal has found that the applicant has not made out his claims that he will be persecuted on return to Vanuatu by persons who wanted to force him to repay money incurred by others to either a lending institution or money lenders, or that his family was harmed for any reason, it follows that the Tribunal is 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 the applicant will suffer significant harm.
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.
Rosa Gagliardi
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.
…

‘Country Reports on Human Rights Practices for 2022 – Vanuatu’, US Department of State,
20 March 2023.

The Vanuatu Police Force maintains internal security. The Vanuatu Mobile Force, a paramilitary police unit, is responsible for external security but is part of the police force and has a domestic law enforcement role. Both agencies report to the Ministry of Internal Affairs. Civilian authorities maintained effective control over the security forces. Members of the security forces were not reported to have committed abuses.

[2023] AATA 4679

13 December 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice