2317204 (Refugee)

[2024] AATA 1979

2317204 (Refugee) [2024] AATA 1979 (2 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2317204

COUNTRY OF REFERENCE:                   Vanuatu

MEMBER:Shahyar Roushan

DATE:2 April 2024

PLACE OF DECISION:  Sydney

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

Statement made on 02 April 2024 at 12:13pm

CATCHWORDS

REFUGEE – Protection Visa – Vanuatu – political opinion – threatened after election – concerns about witchcraft – economic hardship – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 499

Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

BACKGROUND

1. The applicant is [age] years old and a national of Vanuatu. He arrived in Australia on [date] November 2021 as a holder of a Temporary Work (International Relations) (subclass 403) visa and lodged an application for a Protection visa on 5 September 2023.

2. On 12 October 2023, a delegate for the Minister of Home Affairs refused to grant the applicant a Protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). This is a review of that decision by the Administrative Appeals Tribunal (the Tribunal).

   CLAIMS AND EVIDENCE

   Protection visa application

3. In his Protection visa application form, the applicant made the following claims in response to questions in relation to his reasons for claiming protection.

4. He left Vanuatu due to his ‘political opinions of the government’, ‘economic hardship’ and instability and to ‘flee tribal dispute’. The harm that he suffered in Vanuatu was ‘psychological, mental, economic, and physical harm and abuses.’ He had no support and nowhere else to go. The authorities would not be able to protect him if he were to return to Vanuatu.

5. Departmental records indicate that the applicant was not invited to an interview.

6. As already noted, a delegate of the Minister refused the Protection visa application. The delegate was not satisfied that there is a real chance or a real risk that the applicant will suffer serious or significant harm if he were to be removed to Vanuatu. The delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa) of the Act.

   The review application

7. The applicant applied for a review of the delegate’s decision.

8. The Tribunal wrote to the applicant on 10 January 2024, inviting him to appear before it to give evidence and present arguments on 28 February 2024. This invitation was returned to sender and the applicant did not attend the scheduled hearing. The Tribunal subsequently identified an error in the applicant’s email address as recorded on the Tribunal’s records and the applicant was invited to a new hearing.

9. The applicant appeared before the Tribunal on 18 March 2024 via video link to give evidence and present arguments. In presenting his evidence, he was assisted by an interpreter in Bislama and English languages. Where relevant, the applicant’s oral evidence at the hearing is referred to further below.

   The relevant law

10. 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.

11. 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.

12. 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).

13. 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.

14. 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

15. 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

    Analysis, reasons and findings

16. For the following reasons, I have decided to affirm the decision under review.

17. At the hearing, I asked the applicant why he did not wish to return to Vanuatu. He responded that he would like to remain in Australia as he is employed here and is in a position to support his relatives, including his parents in Vanuatu. When pressed, he added that he also did not wish to return due to his ‘political opinion’ and concerns relating to ‘witchcraft’.

    Political opinion

18. The applicant claimed at the hearing that in the last [City 1] municipal elections held sometime before he came to Australia, a candidate by the name of [Mr A] in his locality [was] not successful in his election bid after community leaders threw their support behind a different candidate. [Mr A] became upset and clashes ensued between his supporters and others. [Mr A] and his supporters also threatened those who they thought might have voted for the other candidate. The applicant claimed that he was threatened and verbally abused by some of [Mr A]’s followers for not voting for [Mr A]. When asked how they knew this about him, he said he was associating with the supporters of the other candidate. The applicant acknowledged that he had faced no other ham and that the threats were not acted upon by supporters of [Mr A]. He claimed, however, that one of [Mr A]’s relatives was a candidate in the October 2022 municipal elections and he and others in Australia had been asked to vote for [Mr A]’s relative by ‘proxy’. He expressed concern that he might face threats again if he were to return to Vanuatu because he did not vote for [Mr A]’s relative in 2022 elections.

19. As I put to the applicant at the hearing, the country information sources before me indicated that the Vanuatu 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.[1] Democratic municipal elections in [City 1] in 2018 and 2022 were held freely and without any reported issues.[2] I was unable to locate any information to point to any form of election related violence or intimidation before, during or in the aftermath of these elections. The applicant did not provide any meaningful comments in response.

    [1] 'Country Reports on Human Rights Practices for 2022 - Vanuatu', United States Department of State, 20 March 2023,

    [2] [Source deleted].

20. I’m prepared to accept that candidate rivalry in the municipal elections might have given rise to some political tensions in the applicant’s locality. However, I do not accept that threats made against the applicant and the verbal abuse he encountered on one occasion in the past amount to serious harm. The applicant was not involved in politics or political activity in Vanuatu beyond participating in elections as a voter. As already noted, those making the threats against the applicant did not act on their threats and the applicant did not experience any other harm despite continuing to reside at a single address in his locality.

21. I have greater difficulty accepting the applicant’s claims that Vanuatu nationals in Australia were somehow pressured to vote for a relative of [Mr A] or anyone else in the most recent municipal elections. The applicant’s evidence in this regard was vague and highly unpersuasive. Even if I were to accept, which I do not, that Vanuatu nationals in Australia, including the applicant, were the target of a political campaign by any candidate in the lead up to the most recent municipal elections, I do not accept that the identity of those who did or did not vote ‘by proxy’ or otherwise is known to anyone in Vanuatu. Nor do I accept that any retaliatory action would be taken by anyone in Vanuatu against those who did cast a ballot in Australia in support of any candidate. Indeed, as I put to the applicant at the hearing, it would be reasonable to assume that many in Vanuatu had voted in the municipal elections in [City 1], casting votes for different candidates in different localities. If any of the candidates or their followers had retaliated against and harmed those who they perceived as not having voted in their favour, it would also be reasonable to expect that their actions and/or any ensuing consequences would have been reported by the media in Vanuatu, which is free, or by independent human rights observers visiting the country.[3] For these reasons, I find that there is no real chance that the applicant would face serious harm at the hands of [Mr A], his supporters or anyone else for the reason of his political opinion whether imputed, expressed or exercised by participating in elections. For the same reasons, I do not accept that there is a real risk that he will face significant harm in Vanuatu for any reason arising as a consequence of him expressing his political opinion, exercising his political rights by participating in elections or being imputed with a particular political opinion by anyone.

    Witchcraft

    [3] See United States Department of State, n1, above, noting the presence of such observers in the country.

22. The applicant claimed at the hearing that he fears witchcraft in Vanuatu. He explained that there is a lot of ‘jealousy’ in the community, and he is worried that he would be the target of witchcraft by relatives because he is in Australia, he is working, and he is assisting his family financially. He stated that his parents have been unwell recently and he believes that they might have been targets of witchcraft because they had sent him (the applicant) to Australia, enabling him to provide them with financial assistance.

23. I accept that witchcraft and sorcery beliefs and practices are pervasive throughout Melanesia, including Vanuatu.[4] These beliefs and practices exert a powerful influence on many aspects of day-to-day life, as well as being significant vectors for community tensions, conflict, and violence.[5] In recent years, most of the attention given to the problems arising from sorcery and witchcraft beliefs and practices has been on the attacks and killings of accused sorcerers and witches.[6] I find the applicant’s claims of fear of harm on the basis of being a target of witchcraft by jealous relatives to be grounded in far-fetched assumptions based on superstitious beliefs divorced from reality. I do not accept that these claims give rise to a real chance of serious harm for any of the reasons listed in s 5J(1)(a) of the Act. Nor do I accept that there is a real risk that the applicant would face significant harm on the basis of his claims relating to witchcraft.

    Economic claims

    [4] Miranda Forsyth & Richard Eves, The Problems and Victims of Sorcery and Witchcraft Practices and Beliefs in Melanesia: An Introduction, ANU Press, 2015, The-Problems-and-Victims-of-Sorcery-and-Witchcraft-Practices-and-Beliefs-in-Melanesia-An-Introduction.pdf (anu.edu.au)

    [5] Vanuatu police arrest 20 over witchcraft hanging deaths, ABC News, 3 December 2014, See ibid.

I accept that the applicant wishes to remain in Australia in order to continue to work and support his family in Vanuatu. I explained to the applicant at the hearing the criteria for a Protection visa as set out in the Act and the Regulations and I put to him that it did not appear that these reasons would satisfy the refugee criterion or the complementary protection criterion. The applicant stated that he understood and did not provide any further comments.

I do not accept that any economic challenges faced by the applicant in Vanuatu constitute persecution for the reasons of his race, religion, nationality, membership of a particular social group or political opinion. Nor do I accept that any harm suffered by the applicant in this context amounts to significant harm as defined under s 5(1) of the Act.

On the basis of the evidence before me, I am not satisfied and do not accept that there is a real chance that, if the applicant returned to Vanuatu, he would be persecuted for one or more of the reasons mentioned in s 5J(1)(a) of the Act. Similarly, I am not satisfied and do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vanuatu, there is a real risk that he will suffer significant harm.

For the above reasons, I am not satisfied that the applicant has a well-founded fear of persecution. I am, therefore, not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), I have considered the alternative criterion in s 36(2)(aa) and I am 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.

Shahyar Roushan
Senior 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.

…