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

1. 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).

2. The applicant who claims to be a citizen of Vanuatu, applied for the visa on 2 October 2023.

3. 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.

4. The applicant appeared before the Tribunal on 28 February 2024 to give evidence and present arguments.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Bislama and English languages.

   CRITERIA FOR A PROTECTION VISA

6. 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.

7. 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.

8. 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).

9. 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.

10. 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

11. 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

    ISSUE

12. 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.

13. For the following reasons, the Tribunal has concluded that the decision under review ought to be affirmed.

    COUNTRY OF NATIONALITY

14. The Tribunal finds the applicant’s identity and nationality are confirmed by his passport and recorded personal particulars.

15. 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.

16. 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

17. The Tribunal has before it the protection visa application form lodged by the applicant on 2 October 2023.

18. 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

19. The applicant appeared before the Tribunal to give evidence and make submissions in support of his claims for protection.

20. He did not call any supporting witnesses.

21. The applicant gave sworn evidence as follows.

22. The applicant was born in Vanuatu. At the time of this hearing, he was [age] years old.

23. He had gone up to [grade] in his secondary schooling. From [specified year] to January 2022, he was a [farmer].

24. The Tribunal questioned the applicant about the claims in his protection visa application.

25. 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.

26. The Tribunal put to the applicant that based on the above, he did not have a claim for protection unless there was anything else he wished to submit to the Tribunal to consider.

27. The applicant stated if he went back to Vanuatu, he would be banned from coming back to Australia.

28. The Tribunal asked the applicant whether he had any fears of returning to Vanuatu. The applicant replied that he had no fears of returning, and he was just in Australia to work and make some money to repair his kitchen and shop back home in Vanuatu.

29. The applicant stated that his ‘key goal’ was to stay back and earn money in Australia.

30. The Tribunal explained the criteria for a protection visa and advised the applicant that based on the above evidence, the Tribunal would affirm the decision under review unless there was anything else the applicant wished to submit.

31. The applicant stated he applied for the protection visa so he could stay back in Australia and work in his [current] job. The protection visa application was not in relation to Vanuatu. There was no harm in Vanuatu.

32. The applicant stated that his worker program visa had finished so he applied for the protection visa to stay back in Australia.

33. The applicant stated that one day he would return to Vanuatu. The Tribunal asked the applicant when he thought he would return. The applicant stated he would go back to Vanuatu in 2026.

34. The Tribunal advised the applicant that based on the evidence given above, the Tribunal would affirm the decision under review.

35. The applicant then stated he was worried if he returned to Vanuatu, the police would take his monies and put him in prison. The Tribunal asked the applicant what was the basis of this claim. The applicant stated he heard of this from his brother [Brother A]. The Tribunal asked whether this happened to [Brother A] and the applicant stated that it had not and it was only mentioned to him by [Brother A].

36. The Tribunal asked the applicant whether he had a lot of money that he was worried about the police taking if he returned to Vanuatu. The applicant stated he did not have much money as most of his money he sends back Vanuatu.

37. The Tribunal put to the applicant that country information suggests that Vanuatu has an effective police and judiciary and that it did not seem likely that the police would seize his money on his return and put him in prison. The applicant in response agreed.

38. The applicant then stated he also had a protection claim over a land argument with his grandfather. The Tribunal asked the applicant to further explain.

39. The applicant stated his grandfather was not on good terms with him and might fight or get jealous as he had an argument with him about collecting [produce 1] on the land.

40. The Tribunal asked the applicant why he had not put the claims about of his money being seized and him being put in prison by the police on his return to Vanuatu and of his grandfather’s dispute with him over collecting [produce 1] on the land in his protection visa application. The applicant replied that he forgot about his brother [Brother A] telling him about the police seizing money and putting people in prison on their return to Vanuatu and that his grandfather’s dispute with him about collecting [produce 1] over the land arose after submitting the protection visa application.

41. The Tribunal put to the applicant that it was concerned about the credibility of the claims regarding the matter of his money being seized and him being put in prison on his return to Vanuatu by the police and of his grandfather’s dispute with him over collecting [produce 1] on the land. The Tribunal put to the applicant that these claims seemed to be made up at the hearing and may not believable. That if the Tribunal did find these claims not credible, the Tribunal would not further assess them against the protection visa criteria. The Tribunal invited the applicant to reply. The applicant did not reply.

42. The Tribunal asked the applicant if he wanted more time to file any material for consideration. The applicant wished to do so. The Tribunal granted the applicant 14 days to file any further material. It is noted that the applicant did file a response repeating the two new claims which the Tribunal has read and considered.

43. The Tribunal then asked the applicant if there was anything else he wished to say. The applicant stated he did not.

    INITIAL CLAIM IN PROTECTION VISA APPLICATION NOT PROCEEDED WITH

44. The applicant during the Tribunal hearing did not seek to proceed further with his initial claim in his protection visa application.

45. The applicant stated his mother is married, and not single as claimed in his protection visa application.

46. Further that no one is taking his family land or threatening to beat him to death.

47. He lodged the protection visa application so that he could stay back in Australia and earn monies to repair his kitchen and his shop in Vanuatu and he would return to Vanuatu.

48. Upon the applicant making these statements above, the Tribunal wanted to ensure the applicant understood that the Tribunal would not be able to further assess this claim if that was his evidence and position with respect to his initial claim for protection. The applicant understood this.

49. With respect to the refugee criterion in s 36(2)(a) of the Act, the Tribunal accepts the applicant no longer holds a subjective fear of harm on account of this claim. The Tribunal accepts that the applicant does not have a well-founded fear of persecution on account of this claim and on the applicant’s own evidence he states he does not make a claim for protection based on this claim.

50. With respect to the complementary protection criterion in s 36(2)(aa) of the Act, the Tribunal accepts the applicant no longer maintains that he will suffer significant harm on account of this claim. The Tribunal accepts that there are no longer substantial grounds for believing that there is a real risk the applicant will suffer significant harm on account of this claim and on the applicant’s own evidence he states he does not make a claim for protection based on this claim.

51. The Tribunal finds that the applicant no longer seeks to maintain a claim for protection based on or arising out of the initial claim in his protection visa application.

52. The Tribunal is satisfied that that the applicant no longer seeks to proceed on the basis of his initial claim in his protection visa application and will not proceed to further assess this claim against Australia’s protection obligations under the Act.

    SECTION 423A – NEW PROTECTION CLAIMS MADE AT TRIBUNAL HEARING

53. The Tribunal notes that the applicant did not raise the claims about of his money being seized and him being put in prison on his return to Vanuatu by the police and of his grandfather’s dispute with him over collecting [produce 1] on the land before the primary decision was made, and these would constitute new claims subject to s 423A of the Act.

54. Section 423A of the Act provides that in making a decision on a review application, the Tribunal is to draw an inference unfavourable to the credibility of the claim or the evidence if the Tribunal is satisfied that the applicant does not have a reasonable explanation why the claim was not raised, or the evidence was not presented, before the primary decision was made.

55. In EQU19 v MICMSMA the Federal Circuit and Family Court of Australia (Division 2) dealt with s 423A in determining what may amount to a reasonable explanation and expressed the view that there was no established or formal procedure to determine what may amount to a reasonable explanation, stating:

    Unlike sections such as s 424AA, s 423A does not impose on the Tribunal a method by which it is to obtain the explanation, nor prescribe any preconditions to its operation (see for example s 424AA(1)(b)).[1]

    [1] EQU19 v MICMSMA [2022] FedCFamC2G 609 at [100].

56. The Tribunal is further informed by its August 2018 Practice Directions which set out that a ‘reasonable explanation’ for the purposes of s 423A may include that there was no reasonable opportunity to present the claim. There was no evidence before the Tribunal that the applicant was interviewed by the Department, where he would have had an opportunity to put forward these new claims to the delegate.

57. The Tribunal is satisfied that there is a reasonable explanation per s 423A of the Act for the new claim raising the claims about of his money being seized and him being put in prison on his return to Vanuatu by the police and of his grandfather’s dispute with him over collecting [produce 1] on the land which satisfies the test in s 423A and so the Tribunal has not drawn an adverse inference in relation to the credibility of this new claim under s 423A(2) of the Act.

    COUNTRY INFORMATION

58. Vanuatu is a lower middle-income country, with a low per capita gross domestic product.[2] About 80% of the working population is employed in the informal sector, in subsistence employment.[3]

    [2] ‘Social Policies in Solomon Islands and Vanuatu’, Prasad B C & Kausimae P, Commonwealth Secretariat, [26 July] 2012, p.42, on United Nations Research Institute for Economic Development (UNRISD) website, CIS961F9402737; when its per capita GDP was USD1275 (in constant 2000 USD).

    [3] ‘VNPF to study micro-pensions for informal sector’, Pacific Financial Inclusion Programme (PFIP), 11 October 2018, 20190124142656

59. The Government of Vanuatu does not provide unemployment benefits. The national minimum wage in 2017 was below the national poverty income level. Approximately 40% of the total population and 50% of the rural population had incomes below the national poverty income level.[4]

    [4] ‘Country Reports on Human Rights Practices for 2017 – Vanuatu’, US Department of State, 20 April 2018, p.14 Section 7.e, OGD95BE927488.

60. Chapter 12 of the Vanuatu Constitution enshrines the sacred value indigenous Vanuatuans place on land and the central role land plays in cultural identity.[5]

    [5] ‘[Laws of the Republic of Vanuatu. Consolidated Edition 2006.] Constitution of the Republic of Vanuatu (Act 10 of 1986)’, Republic of Vanuatu, 2006 [document created 29/10/2010], ‘Chapter 12 - Land’ (comprising sections 73‑81), on World Intellectual Property Organization (WIPO) website, CISBE8E6BE803. Article 74 states that the ‘rules of custom shall form the basis of ownership and use of land in the Republic of Vanuatu.’

61. Resolution of land disputes depends on kastom (customary) chiefs and kastom law.[6]

    [6] ‘Vanuatu Land Program. Program Design Document’, [AusAID], 12 February 2009, pages 2-3, on Australian Government. Department of Foreign Affairs and Trade (DFAT) website, 20190124140100; as quoted here omits original’s footnotes 9-12.

62. Non-titled land disputes are resolved through kastom laws and legally titled land receives formal state protection.[7]

    [7] Chapter 12 of the Constitution of Vanuatu is devoted to land matters. Article 73 states that ‘[a]ll land in the Republic of Vanuatu belongs to the indigenous custom owners and their descendants’, while Article ’74. Basis of ownership and use’ states ‘The rules of custom shall form the basis of ownership and use of land in the Republic of Vanuatu.’

63. Vanuatu has an independent and impartial judiciary.[8]

    [8] United States Department of State, Bureau of Democracy, Human Rights and Labor, Country Reports on Human Rights Practices for 2022, Vanuatu 2022 Human Rights Report, p 4.

64. Vanuatu’s Penal Code (1981) provides that intentional assault on the body of a person is punishable with imprisonment, from 3 months where there was no physical damage to 10 years where the damage caused resulted in death though the perpetrator did not intend it to.[9]

    [9] ‘[Laws of the Republic of Vanuatu Consolidated Edition 2006. Chapter 135. Penal Code’ (commencement 7 August 1981), Government of the Republic of Vanuatu, 2006 [document created 29/06/2017], section ‘107. Intentional assault’, on Pacific Islands Legal Information Institute (PacLII) website, CIS3935C1732.

    FINDINGS OF FACT ON THE EVIDENCE

1. The Tribunal, after hearing the applicant and considering the material before it, makes the following findings of fact.

2. The applicant is from Vanuatu.

3. No one is taking his land or threatening to beat the applicant to death back in Vanuatu.

4. The applicant has not been previously seriously harmed in Vanuatu. The Tribunal notes that while past harm may ground an inference that a person’s fear is well-founded, past harm is not an essential step in the applicant demonstrating this well-founded fear, per the High Court in Abebe v Commonwealth.[10]

   [10] [1999] HCA 14 at [191]–[192].

5. The applicant is working in Australia to earn and save money to repair his kitchen and shop back in Vanuatu.

   REFUGEE CRITERION ASSESSMENT

6. To satisfy the refugee criterion in the Act, the applicant must satisfy the Tribunal that they are a refugee pursuant to s 36(2)(a) of the Act. Relevantly, this requires the applicant to come within the definition of s 5H(1)(a) of the Act, which defines a refugee as a person who has a nationality and is outside their country of nationality and is unable or unwilling to avail themselves of the protection of that country owing to a well-founded fear of persecution. Section 5J(1) of the Act further provides that 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 and 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, along with the requirements set out in ss 5J(2)–(6) and ss 5K–LA of the Act.

7. In Chan Yee Kin v MIEA the High Court held that a ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility, and a person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50%.[11]

   [11] (1989) 169 CLR 379.

8. The reasons in s 5J(1)(a) must be the essential and significant reasons for the persecution per s 5J(4)(a), and per ss 5J(4)(b)–(c) the persecution must involve serious harm and systemic and discriminatory conduct.

9. Section 5J(5) of the Act defines instances of serious harm as including but not limited to a threat to a person’s life or liberty, significant physical harassment of the person, significant physical ill-treatment of the person, significant economic hardship that threatens the person’s capacity to subsist, denial of access to basic services, where the denial threatens the person’s capacity to subsist, and denial of capacity to earn a living of any kind, where the denial threatens the person’s capacity to subsist.

10. Both of the applicant’s claims, that of his money being seized and him being put in prison on his return to Vanuatu by the police and of his grandfather’s dispute with him over collecting [produce 1] on the land, are required to be assessed against the refugee criterion as follows.

    Seizure of monies and imprisonment on return by police claim assessment

11. The applicant claims he would suffer serious harm if he returns to Vanuatu as the police would seize his monies and put him in prison.

12. The basis of this claim was from information obtained from his brother [Brother A]. The evidence was that this had not happened to [Brother A] personally, but that [Brother A] had told the applicant this would happen to him if he returned to Vanuatu.

13. The Tribunal during the hearing had put to the applicant that country information suggests that Vanuatu has an effective police and fair impartial judiciary and that it did not seem likely that the police would seize his money on his return and put him in prison. The applicant in response agreed.

14. The Tribunal does not accept that the police would seize his monies and imprison him on his return to Vanuatu. The applicant was not able to place any information or evidence as to this practice in Vanuatu other than stating that he had heard of this from his brother [Brother A]. Country information did not support such a claim.

15. The applicant gave evidence he does not have a fear of persecution if he returns to Vanuatu. The applicant gave evidence he applied for the protection visa not to seek protection from returning to Vanuatu but to stay back and work and earn monies in Australia. He is prepared to return to Vanuatu once he has stayed in Australia till at least 2026 and earned enough to repair his kitchen and shop in Vanuatu.

16. The Tribunal does not accept that the applicant has a subjective fear of harm as required under s 5H(1)(a) of the Act. He is prepared to return to Vanuatu and does not fear harm now or in the reasonably foreseeable future.

17. Country information suggests that Vanuatu has a fair and impartial judiciary. The applicant would be able to rely on effective state protection per s 5LA of the Act and would have recourse to the law courts in Vanuatu if the police were to engage in seizing his monies and putting him in prison.

18. The Tribunal is not satisfied that there is a real chance that if the applicant returned to Vanuatu, he would face serious harm on the basis that the police would seize his money on his return and put him in prison either now or in the reasonably foreseeable future.

19. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution on the basis that the police would seize his money on his return and put him in prison.

20. The Tribunal is not satisfied that the applicant meets the refugee criterion in s 36(2)(a) of the Act on the basis of this claim.

    Grandfather’s land dispute claim assessment

21. The applicant claims he would suffer serious harm if he returned to Vanuatu as his grandfather was not on good terms with him and might fight or get jealous as he had an argument with him about collecting [produce 1] on the land.

22. However, the Tribunal does not accept that the applicant would suffer serious harm due to his grandfather not being on good terms with him and might fight or get jealous as he had an argument with him about collecting [produce 1] on the land.

23. Serious harm includes matters such as those provided in s 5J(5) of the Act.

24. The applicant’s fear of harm was that his grandfather would not being on good terms with him and might fight or get jealous. These acts are not acts of serious harm against a person.

25. The Tribunal does not accept that the applicant’s grandfather would cause him serious harm. The applicant did not place any evidence before the Tribunal to suggest otherwise.

26. On the evidence before the Tribunal, this claim put forward by the applicant that his grandfather would harm him would not amount to serious harm per s 5J(4)(b) of the Act.

27. The applicant gave evidence he does not have a fear of persecution if he returns to Vanuatu.

28. The Tribunal does not accept that the applicant has a subjective fear of harm as required under s 5H(1)(a) of the Act. He is prepared to return to Vanuatu and does not fear harm now or in the reasonably foreseeable future.

29. On the applicant’s own evidence, he is prepared to return to Vanuatu once he has stayed in Australia till at least 2026 and earned enough to repair his kitchen and shop in Vanuatu. The Tribunal accepts this statement as showing the applicant does not have a subjective fear of persecution.

30. The Tribunal is not satisfied the that claim by the applicant that his grandfather would harm him meets the criteria in ss 5J(1)(a) and 5J(4) of the Act.

31. Country information suggests that Vanuatu has a fair and impartial judiciary. The applicant would have recourse to the law courts in Vanuatu or the chiefly system and customary laws in relation to his dispute with his grandfather. The applicant would be able to access effective state protection per s 5LA of the Act.

32. The Tribunal is not satisfied that there is a real chance that if the applicant returned to Vanuatu, he would face serious harm on the basis that his grandfather was not on good terms with him and might fight or get jealous as he had an argument with him about collecting [produce 1] on the land.

33. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution on the basis of fearing harm from his grandfather.

34. The Tribunal is not satisfied that the applicant meets the refugee criterion in s 36(2)(a) of the Act on the basis of this claim.

    COMPLEMENTARY PROTECTION CRITERION ASSESSMENT

35. As the applicant has not met the criteria to be considered a refugee under s 36(2)(a) of the Act, the Tribunal has proceeded to consider whether the applicant meets the complementary protection criteria under s 36(2)(aa) of the Act.

100.   Section 36(2)(aa) of the Act requires the applicant to satisfy the Tribunal that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia and returning to Vanuatu, there is a real risk he will suffer significant harm.

101.   Section 36(2A) of the Act exhaustively defines the types of harm that will amount to significant harm, providing that a person will suffer significant harm if they are arbitrarily deprived of their life, or the death penalty will be carried out on the person, or the person will be subject to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment.

102.   In MIAC v SZQRB it was held that the ‘real risk’ test under the complementary protection criterion imposed the same standard as the ‘real chance’ test under the refugee criterion.[12]

[12] [2013] FCAFC 33 at [246].

103.   Both of the applicant’s claims, that of his money being seized and him being put in prison on his return to Vanuatu by the police and of his grandfather’s dispute with him over collecting [produce 1] on the land, are required to be assessed against the complementary protection criterion as follows.

Seizure of monies and imprisonment on return by police claim assessment

104.   The Tribunal refers to the above findings in the assessment of this claim in the refugee criterion assessment and relies on it.

105.   There was no information or evidence before the Tribunal that the Vanuatu police would seize the applicant’s monies and imprison him on his return. The applicant stated in evidence his brother [Brother A] told him of this but [Brother A] himself had not had this happen to him. Country information does not suggest this.

106.   On the applicant’s own evidence, he is prepared to return to Vanuatu once he has stayed in Australia till at least 2026 and earned monies to repair and kitchen and shop. The Tribunal is not satisfied there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm as he is prepared to return to Vanuatu.

107.   The Tribunal accepts the applicant would be entitled to state protection per s 36(2B)(b) of the Act by having access to the courts if upon his return to Vanuatu, the police would seize his monies and imprison him. Country information suggests the judiciary is impartial and fair and the applicant would have access to the courts to seek redress.

108.   The Tribunal is not satisfied on the evidence that there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Vanuatu on the basis the police would seize his monies and imprison him.

109.   The Tribunal is not satisfied that the applicant meets the complementary protection criterion in s 36(2)(aa) of the Act on this claim.

Grandfather’s land dispute claim assessment

110.   The Tribunal refers to the above refugee criterion assessment and findings on the applicant’s claim of harm on this claim.

111.   The applicant did not suggest, nor did the evidence before the Tribunal disclose, that this claim by the applicant would amount to arbitrary deprivation of life, or that the death penalty would be carried out on the applicant, or the applicant would be subject to torture, or to cruel or inhuman treatment or punishment, or to degrading treatment or punishment.

112.   The applicant’s fear of harm was that his grandfather would not being on good terms with him and might fight or get jealous. These acts are not acts of significant harm against a person.

113.   The Tribunal does not accept that the applicant’s grandfather would cause him significant harm. The applicant did not place any evidence to suggest otherwise.

114.   On the applicant’s own evidence, he is prepared to return to Vanuatu once he has stayed in Australia till at least 2026 and earned monies to repair and kitchen and shop. The Tribunal is not satisfied there are substantial grounds for believing that there is a real risk the applicant will suffer significant harm as he is prepared to return to Vanuatu.

115.   The harm claimed by the applicant does not pose a real risk of significant harm to him.

116.   The Tribunal accepts the applicant would be entitled to state protection per s 36(2B)(b) of the Act by having access to the courts. The applicant would have recourse to the law courts in Vanuatu or the chiefly system and customary laws in relation to his dispute with his grandfather. 

117.   The Tribunal is not satisfied the harm claimed by the applicant is significant harm that meets the criteria in s 36(2A) of the Act.

118.   The Tribunal is not satisfied on the evidence that there is a real risk the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Vanuatu on the basis that his grandfather would harm him.

119.   The Tribunal is not satisfied that the applicant meets the complementary protection criterion in s 36(2)(aa) of the Act on this claim.

CONCLUSION

120.   For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

1. 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). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

2. 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

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

Donald Gordon
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.

…