2318515 (Refugee)

2318515 (Refugee) [2024] AATA 621 (12 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICATION FOR REVIEW:                  Application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Protection XA subclass 866 Visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’)
APPLICANT’S REPRESENTATIVE:        Unrepresented
CASE NUMBER:  2318515
COUNTRY OF REFERENCE:                   Vanuatu
MEMBER:Kate Chapple
DATE:12 January 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 12 January 2024 at 12:26pm
CATCHWORDS
REFUGEE – protection visa – Vanuatu – natural disasters and environmental challenges, resources and infrastructure – safety and quality of life – delay in applying for protection while working – application prepared by niece – country information – high exposure and low coping capacity – natural disasters not persecution as defined – International Covenant on Civil and Political Rights signed and ratified but not adopted into Australian law – UN Human Rights Committee decision not binding on tribunal – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA(2), 5H(1)(a), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASE
MIMIA v Al Masri [2003] FCAFC 70
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.
EVIDENCE BEFORE THE TRIBUNAL
Protection visa application

The applicant’s protection visa application lodged 18 September 2023 setting out the following claims (spelling and grammatical errors not corrected):
1.1.[reason applicant left Vanuatu] In my home country, Vanuatu, I face significant threats to my safety and well-being due to the recurring natural disasters and environmental challenges outlined above. These disasters have severely affected my life and livelihood, making it increasingly difficult for me to lead a stable and secure life. The ongoing impact of natural disasters, particularly cyclones, volcanic eruptions, and rising sea levels, has created a precarious living environment in Vanuatu. I fear for my safety and that of my family, as we are exposed to life-threatening conditions that have led to a deterioration in our quality of life.
1.2.[whether harm experienced by applicant in Vanuatu] No.
1.3.[reason applicant did not move to another part of Vanuatu] Nothing different I choose to move out or staying because I think is the same move any island in Vanuatu.
1.4.[what applicant thinks will happen to him if he returns to Vanuatu] I may need to reconsider my preparations for natural disasters and worry every day about the natural disasters will come whether they will harm me.
1.5.[whether applicant thinks he will be harmed or mistreated if he returns to Vanuatu] No.
1.6.[reason applicant thinks the Vanuatu authorities can’t and won’t protect him] Despite the efforts of the government of Vanuatu, the resources and infrastructure needed to adequately protect and support its citizens during and after natural disasters are often insufficient. This has left me and my family without reliable access to basic necessities and protection in times of crisis.
1.7.[whether applicant thinks he can relocate within Vanuatu] I wish I can relocate to Australia to giving myself one new life for myself I scare to see I lose anyone or may anyone will lose me the feeling is so stress.
Decision record relating to the delegate’s refusal decision dated 31 October 2023.
Departmental case file.
Internal departmental records relating to the applicant.
Application for review
Application for review lodged 8 November 2023, including the following statement responding to the question, why do you claim the decision is wrong?:
I am writing to appeal my application for protection, which has been denied based on the information provided. I would like to provide further details regarding the reasons behind my application for protection from returning to Vanuatu.
Vanuatu, my country of origin, has been grappling with a series of recurring natural disasters and environmental challenges that have severely affected the safety, well-being, and quality of life of its citizens. The government of Vanuatu, due to limited resources and inadequate infrastructure, has struggled to respond effectively to these disasters, leaving its citizens vulnerable to the ongoing impacts of these events.
I fear that if I am forced to return to Vanuatu, the adverse consequences of these recurring disasters may pose a significant threat to my safety and that of my family. The local authorities may not have the capacity to provide the necessary protection or basic necessities during times of crisis, which can lead to severe and life-threatening consequences.
I would like to emphasize that I do not claim to have personally experienced harm in Vanuatu thus far. However, the reason for my application for protection is rooted in the potential dangers and threats posed by the continuing environmental challenges and the government's limited ability to respond effectively to these crises.
As part of my initial application, I have made every effort to provide all the details of my protection claims, as required. The application form I completed explicitly informed me to provide comprehensive claims and all necessary documentation or evidence to support my case. I understand that a decision has been made based on the information I initially submitted, but I urge you to reconsider my case in light of the additional information I have provided in this appeal.
I kindly request a thorough review of my application and a reconsideration of my eligibility for protection based on the ongoing environmental challenges and the potential threats to my safety and well-being if I am returned to Vanuatu. I believe that the circumstances in my home country warrant a closer examination of my case, and I hope that my appeal will be given due consideration.
I am willing to provide any further documentation or information that may be required to support my appeal. Your understanding and compassion in this matter are greatly appreciated.
Thank you for your time and attention to my appeal. I look forward to a favorable response.
Screenshots of online news reports dated October 2023 about Cyclone Lola in Vanuatu.
The Tribunal wrote to the applicant inviting him to attend a hearing on 21 December 2023 and to provide pre-hearing submissions. At the applicant’s request, this was subsequently changed to a video hearing on 11 January 2024.
The applicant did not respond to the Tribunal’s hearing invitation or provide any further submissions.
The Hearing
The applicant appeared before the Tribunal at a hearing conducted via video link on 11 January 2024, with the assistance of an interpreter (also via video link) in the Bislama and English languages. The applicant was unrepresented.
The applicant gave evidence, summarised by the Tribunal as follows:
10.1.The applicant was born in [Year] in [Village] where he grew up with his parents and [siblings]. He lived there for [Number] years. His father is [an Occupation] and his mother a housewife; they are aged [Ages]. His parents now live on [Island] where [Number] of his siblings also live; the other sibling lives in [Town] and works in a [shop]. The applicant completed 12 years of schooling. After he finished school he joined his brother-in-law in his [business] for a time and then did small paid jobs with friends. The applicant has a partner and [children] aged [Ages] in Vanuatu. He supports them from his earnings in Australia.
10.2.The applicant came to Australia to work for a few months in 2017 and again in 2018 and earn money to purchase land and build a house in Vanuatu. He wasn’t able to earn enough in those periods, so returned to Australia to work in October 2019 on a nine-month 403 visa that was repeatedly extended until December 2023. The applicant has been doing picking jobs on farms in Victoria, Tasmania and Queensland. Depending on his hours, earns $400-700 per week, and sends money home to pay for the children’s schooling and living expenses. He needs to keep working in Australia until he’s earned enough money to finish building the house in Vanuatu and acquire title to the property, then he will go home.
10.3.The applicant referred to his home in Vanuatu having been destroyed by a cyclone at some stage.
10.4.The Tribunal asked the applicant why he delayed in making a protection visa application: nearly 4 years after he last arrived in Australia, and 6 years after he first arrived here. The applicant said he didn’t know about protection visas, he just followed what others were doing; he needed a way to stay here and work until his house in Vanuatu is finished. He told his niece in Australia about the cyclone in Vanuatu and she prepared the visa application for him, which was lodged in September 2023. He didn’t know that protection visas were for refugees.
10.5.The Tribunal asked the applicant if he wanted repeated the legal requirements for the grant of a protection visa under the refugee and complementary protection criteria. He said he understood what he’d been at the start of the hearing. The Tribunal explained to the applicant that a protection visa is a very specific type of visa for people experiencing persecution in their home country; it is not a work visa. The Tribunal also explained that while natural disasters such as cyclones cause harm and economic loss, these circumstances do not come within the definition of persecution; they are not targeted, they are experienced by the nation as a whole.
10.6.The applicant didn’t understand the protection visa, but he does now. He’s in Australia because he wants to help his family in Vanuatu live well.
Country information
A UN Capital Development Fund (UNCDF) report, ‘Economic Impacts of Natural Hazards on Vulnerable Populations in Fiji, Papua New Guinea, Samoa, Solomon Islands, Tonga, and Vanuatu’, UN Capital Development Fund (UNCDF), December 2020] stated of climate change and Vanuatu:
Vanuatu – Natural Hazards
Vanuatu is ranked as the most hazardous country in the world by WorldRiskIndex on the basis of its high exposure to natural hazards and relatively low coping capacity (Day et al., 2019). INFORM ranks Vanuatu joint 50th (tied with Tonga) out of 191 countries on exposure to natural hazards, meaning that approximately one quarter of the countries of the world have higher exposure (IASC, 2020). Tropical cyclones and earthquakes are the principal hazards affecting Vanuatu, although the country is also exposed to volcanoes, tsunamis, and droughts. An [International monetary Fund] IMF study estimates that Vanuatu has a 57% chance of suffering a significant (based on EM-DAT [Emergency Events Database] data) disaster related to natural hazards each year (Lee et al., 2018, p. 7).PCRAFI [Pacific Catastrophe Risk Assessment and Financing Initiative] estimates that cyclones, earthquakes, and tsunamis cause average annual damage and losses equivalent to 6.6% of GDP, and that within the next 50 years, Vanuatu has a 50% chance of experiencing a loss due to cyclones, earthquakes, or tsunamis valued at more than 45% of GDP and a 10% chance of a loss exceeding 74% of GDP (PCRAFI, 2011f, pp. 1, 5). The effects of climate change in Vanuatu by the end of this century are expected to include continued El Niño and La Niña events, rising annual mean temperatures and maximum daily temperatures, continued ocean acidification and increased coral bleaching, continued sea-level rise, and slightly decreased frequency of cyclone formation but increased maximum wind speeds (Australian Bureau of Meteorology and CSIRO, 2014, pp. 320–339).
Cyclones, bringing damaging winds, heavy rain, flooding, and storm surge, are the most significant natural hazard for Vanuatu. The country experiences an average of 2 to 2.4 cyclones per year, mainly between November and April (Australian Bureau of Meteorology and CSIRO, 2014, p. 320; Handmer & Iveson, 2017, p. 60). Storm surges associated with cyclones, and flooding due to heavy rains, are common occurrences (Jackson, McNamara, & Witt, 2017, p. 365). Landslides are also occasionally triggered by precipitation from cyclones (Jackson et al., 2017, p. 365). The average annual loss caused by cyclones has been estimated as 5.0% of GDP (PCRAFI, 2011f, p. 5). Climate change models produce varying projections of cyclone formation rates, with a majority suggesting a likely decrease of 15% to 35% in cyclone formation affecting Vanuatu by the end of the century (Australian Bureau of Meteorology and CSIRO, 2014, p. 333).
Droughts have serious impacts on subsistence agriculture and on water supplies, which in Vanuatu are heavily dependent on rainwater harvesting. Droughts are generally associated with the El Niño phenomenon, which affects precipitation patterns across the Pacific. Region-wide, high dependence on subsistence agriculture makes Pacific Islands vulnerable to the effects of El Niño conditions including drought (Thomalla & Boyland, 2017, p. 40). In Vanuatu, the drought that occurred during the 2016 El Niño led to shortages of drinking water, hindered the regrowth of crops damaged by TC Pam the previous year, and required emergency food distribution targeting 90,000 people (Eriksson et al., 2017, p. 52; OCHA [United Nations Office for the Coordination of Humanitarian Affairs], 2015, p. 4). The impact of climate change on the risk of drought is uncertain: the incidence of drought may remain approximately unchanged under most carbon emissions scenarios, and may decrease slightly under conditions of high emissions, but these projections carry a low degree of confidence because there is a lack of consensus on projections of average rainfall and on potential changes in the El Niño phenomenon, which directly influences drought (Australian Bureau of Meteorology and CSIRO, 2014, pp. 331–332).
Agriculture and Fisheries
Climate change is expected to adversely affect agriculture and fisheries through increased frequency of extreme weather, sea-level rise, and disruption of aquatic ecosystems. Across the Pacific region, most cash crops are vulnerable to extreme weather, and high winds from more intense tropical cyclones severely threaten crops such as bananas, breadfruit, and coconuts (Bell et al., 2016, p. 17). In Vanuatu, projected consequences of climate change on agriculture include reduced availability of fresh water, changes in growing seasons, increases in pests and diseases, sea-level rise, saltwater inundation and intrusion into coastal land and groundwater, ocean acidification and coral reef deterioration, reduced fisheries productivity, loss of coastal land, damage to infrastructure and equipment, and compromised food security (Government of Vanuatu, 2015a, pp. 6–7). It is possible that cacao production could be enhanced by rising temperatures (Bell et al., 2016, p. 17).
Commerce and Industry
Tropical cyclone Pam caused widespread damage to buildings and inputs to production. Damage and economic losses to commerce and industry were estimated at [Vanuatu Vatu] VUV 3.3 billion (approximately USD 30 million; 4.4% of GDP) (Government of Vanuatu, 2015b, p. 22). Home-based businesses are presumed to have been badly affected, as 81% of households in affected areas reported some level of damage (REACH, 2015, p. 2), but no specific data on home-based small businesses could be located. However, despite the high frequency of natural hazards affecting Vanuatu, in a survey of [Micro-, Small- & Medium-sized Enterprises] MSMEs carried out in November 2016, only 1% of respondents identified natural hazards as being among their most pressing problems; most businesses identified more routine concerns such as competition from other businesses (31%) and finding customers (24%) as their most pressing problems (Reserve Bank of Vanuatu, 2016b, p. 27). MSMEs in the agriculture sector did, however, identify natural hazards and climate change as creating credit risk which inhibited borrowing (Reserve Bank of Vanuatu, 2016b, p. 46).
Tourism
Across all of the countries reviewed in this report, tourism is largely nature-based and dependent on coastal and marine ecosystems and coastal infrastructure, which are vulnerable to natural hazards and the impacts of climate change. Tourism development is expected to be negatively impacted by climate change through increased intensity of storms, increased temperatures and extreme weather events, damage to infrastructure, beach erosion, damage to marine ecosystems, and policy responses such as carbon taxes which will increase travel costs (Van Der Veeken, Calgaro, Munk Klint, Law, Jiang, de Lacy, Dominey-Howes, & Reis, 2016, p. 53).
Vanuatu has a large and growing tourism industry which is extremely important to the country’s economy, but is vulnerable to natural hazards. Estimates of the economic importance of travel and tourism to Vanuatu range between 35% and 45% of GDP, between 14% and 38% of total employment, and up to 67% of total export earnings (Jacqueline Connell, 2019, p. 327; ILO, 2017a, p. 30; World Travel & Tourism Council, 2020; WTO, 2019b, p. 31). The World Travel and Tourism Council predicts industry growth of 4.1% per year over the next decade with tourism’s contribution to Vanuatu’s GDP expected to reach 50% of GDP by 2027 (WTO, 2019b, p. 31). The major attractions for tourists include adventure tourism, volcanoes, beaches, cruising, cultural activities, diving and snorkeling, eco-tourism, and fishing (Perrottet & Garcia, 2016, pp. 12–13), which are vulnerable to the impacts of climate change and natural hazards as is the case for all countries in the region.
Coping Mechanisms - Community support
In Vanuatu, the national Climate Change and Disaster Risk Reduction Policy calls for working collaboratively with and strengthening the capacity of local (including provincial and community) groups, traditional governance systems, and faith-based organizations working on climate change and disaster risk reduction decision-making and implementation (Government of Vanuatu, 2015a, pp. 9, 18–19). The government recognizes traditional knowledge and practices in disaster resilience and aims to collect and record them, incorporate them into planning, make traditional knowledge accessible to decision-makers, and include traditional knowledge in school curricula (Government of Vanuatu, 2015a, p. 14).
ReliefWeb, an information service offered by the United Nations Office for the Coordination of Humanitarian Affairs (OCHA), reported on 2 November 2023 (inter alia) that:
The cyclone left a trail of devastation across Vanuatu’s northern and central islands of Vanuatu in its wake two weeks ago. It made landfall on northern Pentecost Island in the early hours of Wednesday, 25 October 2023 with sustained wind speeds of up to 215km/h.
Cyclone Lola is the third severe tropical cyclone to hit Vanuatu so far this year, after the twin TCs Judy and Kevin in February-March.
Cyclone Lola arrived a week before the official start of Vanuatu’s cyclone season on 1November, and is also the earliest category 5 cyclone ever recorded in the Southern Hemisphere.
This unusually early storm is a wake-up call for the region for the coming cyclone season. The region’s climatologists and meteorologists are predicting an above-average number of tropical cyclones to form in the western Pacific this cyclone season, which coincides with the arrival of a strong El Niño ENSO phase, which is also likely to mean that these cyclones may be more intense than normal.
Some islands in Vanuatu’s Torba and Penama, and Malampa provinces have been greatly impacted, with reports emerging of significant damage on Pentecost Island. The storm surge and intense winds also wreaked havoc on coastal areas of Ambae Island and on the western side of Ambrym Island. Numerous other islands in the northern provinces have also been affected by flooding and destruction of homes and buildings. Numerous communities have been displaced, leaving families homeless and in urgent need of assistance.
Power and telecommunications infrastructure have also been damaged, exacerbating the challenges for the disaster response to Cyclone Lola. Power outages have been reported throughout the affected areas, further hampering relief efforts and hindering communication lines vital for coordinating emergency response activities.
The agricultural sector, upon which many local communities heavily for subsistence and for cash crops, has suffered extensive losses. Lush green landscapes have been transformed into scenes of destruction as crops, plantations, and livestock were hit by the powerful cyclone.

WorldData.info states that:
Cyclones occur frequently in Vanuatu. On average, they happen about 7 times a year. However, cyclones often do not make landfall in Vanuatu, but turn away beforehand. The remnants then cause gusts of wind and rain on land. The most affected regions are Sanma and Tafea. The typical cyclone season depends on the summer monsoon. In the months before (May to June) and after (October to November), the most severe storms occur.
The most severe cyclone to make landfall in Vanuatu in the past 12 months was Lola. It reached a wind speed of up to 220 km/h on October 24 2023 at 11am local time near Sola and was 93 km in diameter. According to the internationally accepted Saffir-Simpson classification, this corresponded to a category 4 cyclone.
The UNSW Kaldor Centre for International Refugee Law Factsheet, ‘Climate change, disasters and displacement’, provides (inter alia) as follows:
Many more people are displaced by disasters each year than by conflict or violence. For those who cross an international border, only some will be eligible for protection under refugee law or human rights law.
What’s the context?
Each year, many millions of people are displaced by the impacts of climate change and disasters – about one person per second. Most of these people move within their own countries, but some are forced across international borders.
Who is in need of protection?
Legally, there is no such thing as a ‘climate refugee’ or an ‘environmental refugee’. But there are refugees whose predicament is made worse because of the impacts of disasters or climate change. Climate change and disasters provide a context in which existing persecution may be amplified, or exposure to risks may increase.
Human rights law protects people from being returned to life-threatening conditions or inhuman or degrading treatment. So, if circumstances are dire – say, if water, food, shelter and healthcare become too scarce – then protection might be forthcoming on these grounds. To date, however, no claims have succeeded on the particular facts at hand.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal notes that s 5AAA(2) of the Act provides that it is the applicant’s responsibility to specify all particulars of her protection claim and to provide sufficient evidence to establish the claim.
In considering the applicant’s claims and evidence, the Tribunal has taken account of the Department of Home Affairs ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’, and the country information set out in this decision record.
Further, the Tribunal has made an assessment of the credibility of the applicant’s claims and evidence having regard to the Migration and Refugee Division Guidelines on the Assessment of Credibility.
The Tribunal notes from the country information that Vanuatu is ranked the most hazardous country in the world by WorldRiskIndex on the basis of its high exposure to natural hazards and relatively low coping capacity, and that cyclones are the most significant natural hazard for Vanuatu.
The Tribunal notes the applicant refers in his written claims to Vanuatu being subjected to recurring natural disasters and environmental challenges that have severely affected the safety, wellbeing and quality of life of its citizens. The Tribunal notes this accords generally with the country information.
The Tribunal notes the applicant in his written claims expresses a fear of adverse consequences from these recurring natural disasters posing a significant threat to his and has family’s safety, however he emphasises that he does not claim to have personally experienced harm in Vanuatu.
The Tribunal notes the applicant in his oral evidence referred to his home in Vanuatu being destroyed by a cyclone at some stage, however provided no further detail. The Tribunal notes further that the applicant provided with his application for review screen shots of October 2023 news reports about Cyclone Lola in Vanuatu.
The Tribunal considers it is possible that the applicant and/or his family have in the past been adversely affected by cyclones and other natural hazards in Vanuatu.
The Tribunal considers it is possible that the applicant and/or his family will in the future be adversely affected by cyclones and other natural hazards in Vanuatu.
The Tribunal considers that Vanuatu’s exposure to cyclones and other natural hazards is naturally occurring and unrelated to the intentions or actions of the Vanuatu government, authorities and/or individuals.
The Tribunal notes there is no evidence before it of the applicant having experienced targeted serious harm or otherwise significant harm when he was living in Vanuatu.
The Tribunal considers there is no evidence before it of the applicant being at any risk of targeted serious harm or otherwise significant harm if he returns to Vanuatu such as to engage Australia’s protection obligations.
The Tribunal considers that in the absence of such evidence, there is no basis to conclude that the cyclones and other natural hazards have increased or will increase the applicant’s exposure to such risk.
The Tribunal notes the United Nations Human Rights Committee determination in January 2020 in the case of Teitiota v New Zealand that people who flee the effects of climate change and natural disasters should not be returned to their country of origin if essential human rights would be at risk on return.
The Tribunal notes that decisions of the United Nations Human Rights Committee may be used by Australian courts as a persuasive source of interpretation of the International Covenant on Civil and Political Rights (ICCPR) (MIMIA v Al Masri [2003] FCAFC 70 at [146]-[148]). The Tribunal further notes that while Australia signed the ICCPR in 1972 and ratified it in 1980, Australia has never adopted it into domestic law.
The Tribunal considers that the United Nations Human Rights Committee determination in Teitiota v New Zealand is not binding on the Tribunal.
The Tribunal accepts the applicant’s oral evidence that his niece helped him with his protection visa application.
The Tribunal accepts the applicant’s oral evidence that he didn’t know the purpose of a protection visa until it was explained to him at the hearing.
The Tribunal notes the applicant’s oral evidence that he is in Australia because he wants his family in Vanuatu to live well.
The Tribunal considers the applicant’s primary motivation for coming to Australia in 2017, 2018 and 2019, and remaining here since, is to work and earn enough money to support his wife and children in Vanuatu and to fund the purchase and building of their land and house in Vanuatu.
The Tribunal accepts that it has always been the applicant’s intention to return to Vanuatu when he’s earned enough money to finish building the house in Vanuatu and acquire title to the property.
The Tribunal is satisfied that the applicant’s material does not raise any further protection claims requiring its consideration.
Application of law
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. Attachment A sets out the applicable law.
The Tribunal finds that:
38.1.The applicant is a citizen of Vanuatu and a non-citizen in Australia.
38.2.The applicant’s claims for protection do not satisfy the refugee or complementary protection criterion set out in the applicable law.
38.3.If the applicant is returned to Vanuatu, there is no real chance that he would be persecuted, and accordingly the applicant does not have a ‘well-founded fear of persecution’ as required by s 5H(1)(a) of the Act and as defined in s 5J(1) of the Act.
38.4.There do not exist 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.
CONCLUSIONS
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s 36(2)(aa) of the Act. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
There is no evidence before the Tribunal that suggests that the applicant satisfies s 36(2)(b) or (c) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2)(b) or (c) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Kate Chapple
Member

ATTACHMENT A
Summary of applicable law
The criteria for a protection visa are set out in s 36 of the Migration Act 1958 (Cth) 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.
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).
Relevant extracts 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.

[2024] AATA 621

12 January 2024

Key Legal Topics

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Immigration

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction