2316972 (Refugee)
[2023] AATA 4821
•1 December 2023
2316972 (Refugee) [2023] AATA 4821 (1 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2316972
COUNTRY OF REFERENCE: Vanuatu
MEMBER:Member Nathan Goetz
DATE:1 December 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 01 December 2023 at 1:00pm
CATCHWORDS
REFUGEE – protection visa – Vanuatu – political opinion – disagreement with government’s policies against Islam and claim of one-party rule and no freedom of speech – no claims of expressing disagreement or harm – no explanation of relevant policies – delay in applying for protection – no response to invitation to provide information and loss of right to hearing – country information – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65, 424(2), 425(1)
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 merits review of a decision made under s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister refusing to grant the applicant a protection visa.
BACKGROUND
On 29 November 2022 the applicant was offshore and applied for a temporary work visa. The applicant was granted that visa on 13 December 2022 and arrived in Australia holding that visa [in] February 2023. That visa ceased on 2 November 2023.
On 30 August 2023 the applicant applied for the protection visa. On 2 October 2023 the delegate refused to grant the visa on the basis that the applicant did not satisfy s 36(2)(a) or (aa) of the Act.
On 22 October 2023 the applicant applied to the Tribunal for review of the decision.
On 16 November 2023 the Tribunal wrote to the applicant for two reasons.
The first reason was to invite the applicant under s 424(2) of the Act to provide the Tribunal with information in writing by 30 November 2023. The invitation warned the applicant that if the applicant did not provide the information requested or seek an extension to provide the information by 30 November 2023, the applicant would lose any entitlement to appear at a Tribunal hearing.
The second reason was to invite the applicant under s 425(1) of the Act to appear at a Tribunal hearing scheduled for 9:00am on 5 December 2023.
By the end of 30 November 2023, the applicant had not provided the Tribunal with the information requested. The information requested is detailed later in this decision record. As the applicant had not provided the information requested, or sought an extension of time to provide the information requested, the Tribunal determined that it should cancel the Tribunal hearing and proceed to make a decision on the review.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
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.
Sections 36(2)(b) and (c) provide as an alternative criterion that the applicant is a non-citizen in Australia who is a member of the same family unit as a non-citizen mentioned in s 36(2)(a) or (aa) who holds a protection visa of the same class as that applied for by the applicant. Section 5(1) of the Act provides that one person is a ‘member of the same family unit’ as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. Section 5(1) also provides that ‘member of the family unit’ of a person has the meaning given by the Regulations for the purposes of the definition. The expression is defined in reg 1.12 of the Regulations
CONSIDERATION OF CLAIMS AND FINDINGS
The issue in the review is whether the applicant is a ‘refugee’ or a person who meets the requirements for ‘complementary protection’ or a person who is a member of the same family unit of a person who is a ‘refugee’ or meets the requirements for ‘complementary protection.’
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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.
There is no DFAT Country Information Report on Vanuatu.
Identity and country of reference
Evidence
According to the protection visa application form, [the applicant is] a female who was born on [Date] in [Island], Vanuatu. She resided in [Island], Vanuatu until February 2023 when she departed for Australia.
The applicant identified that she was a citizen of Vanuatu from birth and that she does not hold citizenship to any other country or hold a right to enter and reside in any other country. She identified her ethnicity as Vanuatu and her religion as Christian.
In support of her identity, the applicant provided the front page of a Republic of Vanuatu passport issued in her name on [in] 2020.
Finding
Based on the applicant’s passport, and in the absence of any evidence to contradict her claims that she is a citizen of Vanuatu with no right to enter and reside in another country, the Tribunal is satisfied as to the applicant’s identity and citizenship and that she does not possess any right to enter and reside in another country.
Therefore, for the purpose of the protection visa application assessment, the country of reference is Vanuatu.
Member of the same family unit
Evidence
The applicant was the only person included in the protection visa application form. She indicated that she was raising her own claims for protection and did not claim to meet the requirements for the protection visa based on membership of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act.
Finding
Based on the above concession, and in the absence of any evidence to the contrary, the Tribunal is not satisfied that the applicant is a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act.
Protection claims
In the visa application form, the applicant claimed that she left Vanuatu because she ‘strongly disagree that the Vanuatu Government opposes Islam. Government country’s policies racially discriminate against Islam. If no freedom of speech.’ She did not claim to have experienced harm in Vanuatu.
The form asked the applicant what she thought will happen to her if she returned to Vanuatu. She wrote that ‘If express different opinions, will be arrested at any time without any reason. May send to jail and harm.’ She wrote that there was ‘Government control by one party. No way is safe. Facing arrest any time.’
Apart from the completed protection visa application form, the applicant provided no further evidence in support of her claims.
Noting that the applicant declared in the protection visa application form that her last date of arrival was [February] 2023, and that the protection visa application form was lodged on 30 August 2023, the Tribunal wrote to the applicant under s 424(2) of the Act to request information about why the applicant lodged the protection visa application form almost 7 months after her arrival in Australia. The Tribunal was curious to understand why this had occurred in August 2023, given the applicant claimed that she left Vanuatu because of her strong disagreement with the Vanuatu Government.
As detailed previously, the applicant did not provide the Tribunal with the information it requested. The applicant therefore provided no explanation about the timing of her protection visa application form relative to her arrival in Australia in February 2023.
The delegate decision record provided the following information about Vanuatu, including with references for the source material:
‘Vanuatu is a multiparty parliamentary democracy with a freely elected government. Observers considered the October 13 2022 parliamentary election generally free and fair. The constitution provides citizens the ability to choose their government in free and fair periodic elections held by secret ballot and based on universal and equal suffrage.
The elected prime minister and cabinet determine and implement government policies without improper interference, and the legislature serves as a check on executive power. The government largely operates with transparency.6 Numerous political parties operate without restrictions in Vanuatu. There are frequent shifts in political coalitions and unstable parliamentary majorities.
The constitution provides for freedom of expression, including for members of the press and other media, and the government generally respected this right. An independent media and judiciary and a functioning democratic political system combined to promote freedom of expression, including for members of the media. The government does not monitor personal communications, and individuals are able to discuss politics and other matters without interference. The law provides for freedom of assembly, and the government typically upholds this right in practice. Public demonstrations generally proceed without incident. Although political corruption is a major problem, the largely independent judiciary has been able to hold elected officials accountable in high-profile cases.
Ethnic minorities enjoy equal political rights. The constitution provides for individual freedom of “religious or traditional beliefs” and there is no official state religion. The penal code provides a penalty of up to two years in prison for discrimination, including on the basis of religion.’
Having considered that information, and considering the source material, the Tribunal is satisfied that it is a fair summary of the political climate in Vanuatu.
Findings
The Tribunal is not satisfied that the applicant is a witness of truth about her claims for the following reasons.
First, the applicant provided no evidence of how she ‘strongly disagrees’ with the Vanuatu Government’s policies towards those of the Muslim faith or identify what those policies are. The Tribunal has no knowledge of discriminatory policies in Vanuatu concerning Islam, and the country information indicates that difference of religious belief is tolerated, as is freedom of speech. Given that the applicant claimed that she left Vanuatu because of this ‘strong disagreement,’ it would be reasonable to expect that the applicant would be able to provide evidence that is more than a bald assertion.
Second, the applicant disclosed no experience of harm in Vanuatu at all in connection with her ‘strong disagreement’ which suggested that if she did express her ‘strong disagreement’ no harm came to her as a result of this expression. It may suggest that the applicant did not express her disagreement at all
Third, the applicant’s evidence about her fear about arrest and harm is vague and not accompanied by any meaningful detail. She provided no evidence about how she has expressed (if at all) her disagreement with the Vanuatu Government, either when she was in Vanuatu, or during her time in Australia.
Fourth, the country information as detailed in the delegate decision and repeated here does not support the applicant’s claims, because the country information suggests that Vanuatu is a multiparty democracy, with free election where freedom of expression is tolerated, as is public protests. The Tribunal has not been provided with anything to suggest that the Vanuatu Government ‘discriminates’ against Muslims as suggested by the applicant.
Fifth, the timing of the applicant’s protection visa application supports an inference that the applicant did not leave Vanuatu because of her ‘strong disagreement’ with the Vanuatu Government. The Tribunal wrote to the applicant under s 424(2) of the Act noting that she declared her arrival in Australia as 3 February 2023 and asked for information about why she did not lodge the protection visa application until approximately 7 months after her arrival.
She provided the Tribunal with no explanation about why she would not lodge a protection visa shortly after her arrival if it was her ‘strong disagreement’ that caused her to leave Vanuatu. Given the timing of the protection visa application being some six weeks before her temporary work visa was due to expire, the Tribunal suspects that the protection visa application was lodged not because she feared harm in Vanuatu, but to maintain the residency that she had been granted with the temporary work visa.
CONCLUSION
The Tribunal is not satisfied that the applicant it a witness of truth to her claims about her ‘strong disagreement’ with the Vanuatu Government. The Tribunal is not satisfied on the basis of the vague evidence the applicant provided, and the country information referred to, that the applicant would express her ‘strong disagreement’ with the Vanuatu Government upon her return to Vanuatu, or that if she did, there would be a real chance of serious harm to her, or a real risk of significant harm to her in that country.
Refugee
For the above reasons, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution in Vanuatu based on her race, religion, nationality, membership of a particular social group, or political opinion.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(a) or (aa) of the Act.
Complementary protection
For the reasons given above, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Vanuatu, there is a real risk she will suffer significant harm as defined in the Act.
Therefore, the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Member of the same family unit
For the reasons given above, the Tribunal is not satisfied that the applicant is a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act.
Therefore, the applicant is not a person who satisfies s 36(2)(b) or (c) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Nathan Goetz
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.
…
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Standing
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Natural Justice
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Statutory Construction
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