2317003 (Refugee)
[2023] AATA 4852
•18 December 2023
2317003 (Refugee) [2023] AATA 4852 (18 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2317003
COUNTRY OF REFERENCE: Vanuatu
MEMBER:Paul Windsor
DATE:18 December 2023
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 18 December 2023 at 12:08 pm
CATCHWORDS
REFUGEE – protection visa – Vanuatu – no response to tribunal communication – family violence claims – claims are vague, lacking in detail and contradictory – delay in protection application – no further information to support claims – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 426A, 441A(5), 499
Migration Regulations 1994 (Cth), Schedule 2CASES
MIEA v Guo (1997) 191 CLR 559
MIAC v SZQRB [2013] FCAFC 33
Prasad v MIEA (1985) 6 FCR 155Any 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 19 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 22 August 2023.
In his Protection visa application, the applicant stated he was born on [date] in [Town 1], Vanuatu. He stated he is a member of the ‘Vanuatu’ ethnic group, is a Christian and has never married. The applicant indicated he departed Vanuatu legally [in] September 2021 on a Vanuatu passport and arrived in [Australia] on the same day, entering on a temporary working visa.[1]
[1] See the Departmental file.
In his application the applicant indicated he left Vanuatu because he suffered a really serious injury due to violence by his family members.[2]
[2] Ibid.
The delegate refused to grant the visa, noting the applicant did not respond to a letter sent on 19 September 2023 inviting him to provide further details regarding his claims. The delegate indicated that, due to the lack of detail and evidence in support of the claims, they found the applicant’s claims were not credible and rejected them in their entirety.
The applicant sought review of this decision on 21 October 2023. He provided the Tribunal with a copy of the delegate’s decision record.
Failure to attend the scheduled hearing
On 29 November 2023, the Tribunal wrote to the applicant advising that the Tribunal had considered all the material before it relating to his application but was unable to make a favourable decision on that information alone. The applicant was invited to appear before the Tribunal to give evidence and present arguments at a hearing scheduled for 9:00 am on 18 December 2023. The applicant was requested to read and complete an attached ‘Response to hearing invitation’ form within 7 days of receipt of the letter.
The letter advised the applicant that if he was not able to appear as scheduled, he should advise the Tribunal as soon as possible. He was advised to note that the Tribunal will only make changes to the hearing arrangements if satisfied that it is reasonable and there are good reasons for doing so, and he must assume that the hearing will go ahead as scheduled unless he has been advised otherwise.
The applicant also was advised that if he did not participate in the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear before the Tribunal.
SMS reminder messages were sent to the applicant regarding the hearing, five business days and one business day before the scheduled hearing.
The applicant did not respond to the invitation to attend the hearing.
The applicant did not attend the scheduled hearing. He did not contact the Tribunal to explain his non-attendance.
Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s 441A(5) of the Act. The invitation was sent by email to the email address provided in the applicant’s review application. In these circumstances, and pursuant to s 426A of the Act, the Tribunal decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.[3]
CONSIDERATION OF CLAIMS AND EVIDENCE
[3] Note that there is no DFAT Country Information Report in relation to Vanuatu.
Claims
The applicant’s written claims from his Protection visa application are summarised as follows:[4]
·He left Vanuatu because he suffered family violence there.
·He suffered a really serious form of injury. His own family members engaged in a great deal of violence that caused a great deal of problems.
·The type of harm was very bad. It included a lot of yelling, screaming, pushing and shoving. The people responsible were his own family. He never did anything wrong they always just wanted to make him fell bad to show off in front of other family members.
·He did not seek help in case it made the situation worse. He just tried to deal with it. The behaviour of families that involves violence is not taken into consideration by the local authorities.
·He tried to move to another part of the country.
·He also tried to go to some of his family members to sort the problem out but they did not believe him and didn’t give him a chance so he had to go back.
·He fears that, if he returns to Vanuatu, the same things will continue to occur and he will continue to be treated disrespectfully.
·He does not think he would be able to relocate within Vanuatu as they will find him easily.
[4] See the Departmental file.
Findings and reasons
Identity
On the basis of the copy of his passport submitted to the Department,[5] the Tribunal accepts that the applicant is a citizen of Vanuatu and that his identity is as claimed. The Tribunal accepts that Vanuatu is his ‘receiving country’ for refugee criterion purposes and for complementary protection purposes.
Issues
[5] See the Departmental file.
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J(1) and if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to his receiving country of Vanuatu, there is a real risk he will suffer significant harm.
For the following reasons the Tribunal has concluded that the decision under review should be affirmed.
Assessment of claims
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 an 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. A decision-maker is not required to make the applicant's case for them. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s.5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70.)
Background
The available evidence indicates the applicant is [an age] year old Vanuatu man of the Christian faith who has never married. In his application he indicated he has no immediate family members in Australia or overseas. He indicated he has not travelled to any other counties apart from when he came to Australia in September 2021.
Claim to fear family violence in Vanuatu.
The Tribunal finds the applicant’s claims are vague, lacking in detail and contradictory. He has not provided any supporting evidence, such as medical records, photographs or witness statements.
In his Protection visa application the applicant stated his ‘own family members engaged in a great deal of violence that caused a great deal of problems’. He stated he suffered a ‘really serious form of injury’. However, he has not provided any details of what the injury was, how and when it was sustained and who caused it. He did not provide any photographic evidence or medical records in relation to the claimed injury. When asked what type of harm he suffered, he did not mention this ‘really serious form of injury’ but stated the harm he suffered included a lot of yelling, screaming, pushing and shoving.
The applicant replied ‘Yes’ to the question asking if he moved or tried to move to another part of the country to seek safety, but he did not indicate where he went and what happened. He has not indicated who he was living with in Vanuatu and whether, if he was living with abusive family members, he sought to live elsewhere, either independently or with other persons. He commented that he also tried to go to some of his family members to sort the problem out but they didn’t believe him and didn’t give him a chance so he had to go back. He did not, however, indicate who these family members were, where they lived, why they didn’t believe him and why he had to go back.
Later in the application form, when asked if he thought he would be able to relocate within the country to an area where he would not be harmed, the applicant replied ‘No’, commenting they would be able to find him easily. If this was the case, it is not clear why he indicated he tried to move to another part of the country previously.
The applicant stated he did not seek help from the authorities because he thought that might make the situation worse and because the local authorities do not give consideration to family violence. He did not, however, explain why that would be the case if he suffered a really serious form of injury as claimed.
The delegate’s decision record, a copy of which the applicant provide to the Tribunal, indicates that the delegate wrote to the applicant on 19 September 2023, in accordance with s 56 of the Act, inviting him to provide additional information and evidence in support of his claims. It was suggested the applicant include dates and locations of events, the identity of family members who have been causing them harm, the type of harm received, what assistance they have sought out, and if help may be available to them in Vanuatu. The delegate also put to the applicant that they had been in Australia since September of 2021 and the applicant was invited to provide information about their delay in applying for protection, as they had been in Australia for 2 years before they applied for protection. No response was received from the applicant.
The applicant did not provide any further information in support of his claims, either with the review application or in response to the hearing invitation.
These are all matters the Tribunal would have questioned the applicant about in detail had he attended the hearing.
Having carefully considered the applicant’s claims and the available evidence, the Tribunal is not satisfied that the applicant’s claims have been made out. The Tribunal does not accept that the applicant left Vanuatu because he suffered family violence in Vanuatu that caused him a great deal of problems and to suffer a really serious form of injury. The Tribunal does not accept that the applicant tried to move to another part of Vanuatu or that he tried to seek assistance from some family members to sort out the problem. Accordingly, the Tribunal does not accept that the applicant would face a real chance of suffering disrespectful treatment amounting to serious harm or violence involving serious harm from one or more family members, or anyone else, should he return to Vanuatu.
Does the applicant have a well-founded fear of persecution if he returned to Vanuatu?
Accordingly, the Tribunal does not accept there is a real chance that the applicant will suffer persecution involving serious harm from a family member or from family members, or any other person, group, authority or organisation, for one or more of the five reasons mentioned at s.5J(1)(a), if he was to return to Vanuatu, now or in the foreseeable future.
Accordingly, 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).
In considering whether there is a real risk that the applicant will suffer significant harm, as a necessary and foreseeable consequence of him being removed from Australia to Vanuatu, the Tribunal has noted that in MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in relation to the ‘refugee’ criterion.[6]
[6] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
Significant harm is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
Included in this definition is the requirement that the pain or suffering must be intentionally inflicted, or be an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable.
Considering the available evidence, and having regard to the findings of fact set out above, the Tribunal also finds there are not substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Vanuatu, there is a real risk that the applicant will suffer significant harm, as set out in s.36(2A), from a family member or from family members, or any other person, group, authority or organisation.
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Member of the same family unit
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, he does not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Paul Windsor
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
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Immigration
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Administrative Law
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