2318814 (Refugee) - [2024] AATA 1964

2318814 (Refugee) [2024] AATA 1964 (18 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2318814

COUNTRY OF REFERENCE: Vanuatu
MEMBER:Donald Gordon
DATE:18 March 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 18 March 2024 at 4:15pm
CATCHWORDS
REFUGEE – protection visa – Vanuatu – particular social group – skinny people – child with single mother – fear of detention – fear of money theft – economic conditions – employment – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 423A, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v Commonwealth [1999] HCA 14
Chan Yee Kin v MIEA (1989) 169 CLR 379
EQU19 v MICMSMA [2022] FedCFamC2G 609
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 14 November 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 2 October 2023.
The delegate refused to grant the visa on the basis that:
a.With respect to the refugee criterion set out in s 36(2)(a) of the Act, the delegate was not satisfied that the applicant has a well-founded fear of persecution, in that there is not a real chance that, if the applicant returned to their country of nationality, the applicant would be persecuted on account of his race, religion, nationality, particular social group or political opinion.
b.With respect to the complementary protection criterion set out in s 36(2)(aa) of the Act, the applicant is not a person 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 applicant being removed from Australia to their country of nationality, there is a real risk that the applicant will suffer significant harm.
The applicant appeared before the Tribunal on 28 February 2024 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Bislama and English languages.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2318814 (Refugee)

Details

AGLC: 2318814 (Refugee) [2024] AATA 1964
Case: [2024] AATA 1964
Decision Date: 18 March 2024

CaseChat Overview and Summary

The applicant, a citizen of Vanuatu, sought a protection visa in Australia. The dispute concerned whether Australia had protection obligations towards the applicant under the Migration Act 1958 (Cth). The Administrative Appeals Tribunal considered the applicant's claims for protection.

The Tribunal was required to determine if the applicant met the criteria for a protection visa under s 36(2)(a) of the Act (refugee criterion) or s 36(2)(aa) (complementary protection criterion). Additionally, the Tribunal considered whether the applicant qualified by being a member of the same family unit as someone who met these criteria, pursuant to ss 36(2)(b)-(c).

The Tribunal found that the applicant's claims of being bullied due to his physique, facing threats to his family land, and having no financial means or state protection in Vanuatu were not substantiated by his evidence. During the hearing, the applicant admitted his mother was not single, no one was taking his family land, and he was not facing threats of death. He also stated he had no problems in Vanuatu and wished to remain in Australia to earn money. Consequently, the Tribunal concluded that the applicant did not satisfy the refugee or complementary protection criteria, nor the family unit criterion. The decision under review was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 EVIDENCEISSUE The issue before the Tribunal is whether the applicant is a person in respect of whom Australia has protection obligations pursuant to:a.The refugee criterion in s 36(2)(a) of the Act; or b.The complementary protection criterion in s 36(2)(aa) of the Act; or c.By virtue of ss 36(2)(b)–(c), being a member of the same family unit as a non‑citizen who is mentioned in s 36(2)(a) or s 36(2)(aa) and holds a protection visa of the same class as that applied for by the applicant. For the following reasons, the Tribunal has concluded that the decision under review ought to be affirmed.COUNTRY OF NATIONALITY The Tribunal finds the applicant’s identity and nationality are confirmed by his passport and recorded personal particulars. The Tribunal finds that the applicant is a citizen of Vanuatu, which is also his receiving country for the purpose of his protection claims and assessments. In the absence of any contrary evidence before it, the Tribunal finds the applicant does not have a right to reside in a country other than Vanuatu, and therefore s 36(3) of the Act is not applicable.THE PROTECTION VISA APPLICATION The Tribunal has before it the protection visa application form lodged by the applicant on 2 October 2023. The applicant, in his protection visa application form, sets out his reasons for claiming protection, which are summarised as follows:a.The applicant is seeking protection in Australia so he does not have to return to Vanuatu. b.The applicant was always bullied because he was very skinny. c.He was always pushed around and beaten up because of his size and because people wanted to take over his family land. d.Nobody would help him as he has a single mother and he has no money. e.He was unable to move elsewhere as he had no money. f.If he continued to stay in Vanuatu he would get beaten to death. HEARING BEFORE THE TRIBUNAL The applicant appeared before the Tribunal to give evidence and make submissions in support of his claims for protection. He did not call any supporting witnesses. The applicant gave sworn evidence as follows. The applicant was born in Vanuatu. At the time of this hearing, he was [age] years old. He had gone up to [grade] in his secondary schooling. From [specified year] to January 2022, he was a [farmer]. The Tribunal questioned the applicant about the claims in his protection visa application. The applicant stated his mother is married, and not single as claimed in his protection visa application. Further that no one is taking his family land or threatening to beat him to death. He did have any problems in Vanuatu and wanted to stay in Australia to earn monies.

Decision

Reasons for decision

There is no suggestion that the applicant satisfies s 36(2) 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) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).DECISION

Ratio Decidendi

Legal Principle Established

If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.Mandatory considerations In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCEISSUE The issue before the Tribunal is whether the applicant is a person in respect of whom Australia has protection obligations pursuant to:a.The refugee criterion in s 36(2)(a) of the Act; or b.The complementary protection criterion in s 36(2)(aa) of the Act; or c.By virtue of ss 36(2)(b)–(c), being a member of the same family unit as a non‑citizen who is mentioned in s 36(2)(a) or s 36(2)(aa) and holds a protection visa of the same class as that applied for by the applicant. For the following reasons, the Tribunal has concluded that the decision under review ought to be affirmed.COUNTRY OF NATIONALITY The Tribunal finds the applicant’s identity and nationality are confirmed by his passport and recorded personal particulars. The Tribunal finds that the applicant is a citizen of Vanuatu, which is also his receiving country for the purpose of his protection claims and assessments. In the absence of any contrary evidence before it, the Tribunal finds the applicant does not have a right to reside in a country other than Vanuatu, and therefore s 36(3) of the Act is not applicable.THE PROTECTION VISA APPLICATION The Tribunal has before it the protection visa application form lodged by the applicant on 2 October 2023. The applicant, in his protection visa application form, sets out his reasons for claiming protection, which are summarised as follows:a.The applicant is seeking protection in Australia so he does not have to return to Vanuatu. b.The applicant was always bullied because he was very skinny. c.He was always pushed around and beaten up because of his size and because people wanted to take over his family land. d.Nobody would help him as he has a single mother and he has no money. e.He was unable to move elsewhere as he had no money. f.If he continued to stay in Vanuatu he would get beaten to death. HEARING BEFORE THE TRIBUNAL