2319512 (Refugee) - [2024] AATA 2566

2319512 (Refugee) [2024] AATA 2566 (26 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2319512
COUNTRY OF REFERENCE:                   Vanuatu
MEMBER:Donald Gordon
DATE:26 February 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 26 February 2024 at 1:49pm
CATCHWORDS
REFUGEE – Protection Visa – Vanuatu – a land dispute with family members – applicant no longer maintains his initial protection visa application claim – economic hardship – applicant does not fear he will be seriously harmed if he returns to Vanuatu – a member of a particular social group – being the youngest in a family and also of being adopted – receipt of a low salary does not amount to serious harm – applicant does not have a well-founded fear of persecution – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 423, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 13 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 3 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 9 February 2024 to give evidence and present arguments.
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). 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…

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 2319512 (Refugee)

Details

AGLC: 2319512 (Refugee) [2024] AATA 2566
Case: [2024] AATA 2566
Decision Date: 26 February 2024

CaseChat Overview and Summary

The applicant, a national of Vanuatu, sought a protection visa in Australia. The dispute arose from the applicant's claims of owing money to an unlicensed moneylender who allegedly threatened him, and a land dispute with family members in Vanuatu. The applicant also claimed to be a member of a particular social group, specifically being the youngest and adopted child in his family. The case was heard by Donald Gordon.

The legal issues before the Tribunal were whether the applicant met the refugee criterion under s 36(2)(a) of the Act, the complementary protection criterion under s 36(2)(aa), or if he qualified as a family member of someone who met these criteria under s 36(2)(b)-(c). The Tribunal was required to determine if the applicant had a well-founded fear of persecution or faced significant harm if returned to Vanuatu.

The Tribunal found that the applicant did not have a well-founded fear of persecution. It reasoned that the threats from the moneylender and the family land dispute did not amount to serious harm, and receiving a low salary did not constitute significant harm. The Tribunal also concluded that being the youngest and adopted child did not constitute membership in a particular social group for the purposes of protection. Consequently, the Tribunal determined that the applicant did not satisfy the criteria for a protection visa.

The Tribunal affirmed the decision under review, finding that the applicant did not meet the requirements for a protection visa under the Act.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

In the absence of any contrary evidence, 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.BACKGROUND The applicant is a national of Vanuatu. The applicant last arrived in Australia on [date] July 2022.THE PROTECTION VISA APPLICATION The Tribunal has before it the protection visa application form lodged by the applicant on 3 October 2023. The applicant, in their protection visa application form, sets out their 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 borrowed $8,000 from an unlicensed moneylender to arrange for a visa to Australia. However, the agent to whom he paid the $8,000 defrauded him and disappeared. c.The unlicensed moneylender began demanding for the return of the $8,000 including sending men to threaten the applicant and breaking windows and throwing red paint on his house. d.The applicant did not contact the authorities due to the lengthy time it takes to investigate cases and the men working for the unlicensed moneylender threated to break his arm if he did. e.Relatives and friends of the applicant helped him financially to get to Australia. 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. He did submit a payslip from [Company 1] discussed below. The applicant gave sworn evidence as follows. The applicant was born in Vanuatu. He completed his primary and high school in Vanuatu. He then lived and studied in [Country 1] for 2.5 years at [a university] and presently has one year left to complete his [degree]. He is not married, does not have a current partner and does not have any children. The applicant stated that he did not want to go back to Vanuatu but he also knew that ‘Vanuatu is not a refugee country’. The applicant’s adopted father died one year into his studies in [Country 1] during 2013 and a year later the applicant returned to Vanuatu. The applicant has a land dispute with family members. He is the youngest and adopted so his family from his paternal uncle’s side descending from Grandfather [A] would quarrel with him as he is adopted and traces him familial line to Grandfather [B]. His family members would give him harsh looks and destroy his vegetable and fruit gardens. His cousins on Grandfather [A]’s side are older than him. He was prohibited from accessing his land. The Tribunal refers to this claim as the ‘family land dispute’. The applicant in response to the family land dispute moved away from his land and spent 7 years working in [City 1]. Life was very hard working in [City 1], his salary only covered his basic living expenses and his financial situation worsened during COVID-19. The first time he borrowed money to come to Australia, he was caught in a scam. The second time he borrowed money from his friends and family to come to Australia.

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 (DFAT) 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, 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.BACKGROUND The applicant is a national of Vanuatu. The applicant last arrived in Australia on [date] July 2022.THE PROTECTION VISA APPLICATION The Tribunal has before it the protection visa application form lodged by the applicant on 3 October 2023. The applicant, in their protection visa application form, sets out their 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 borrowed $8,000 from an unlicensed moneylender to arrange for a visa to Australia. However, the agent to whom he paid the $8,000 defrauded him and disappeared. c.The unlicensed moneylender began demanding for the return of the $8,000 including sending men to threaten the applicant and breaking windows and throwing red paint on his house. d.The applicant did not contact the authorities due to the lengthy time it takes to investigate cases and the men working for the unlicensed moneylender threated to break his arm if he did. e.Relatives and friends of the applicant helped him financially to get to Australia. 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. He did submit a payslip from [Company 1] discussed below. The applicant gave sworn evidence as follows. The applicant was born in Vanuatu.

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 (DFAT) 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, 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.BACKGROUND The applicant is a national of Vanuatu. The applicant last arrived in Australia on [date] July 2022.THE PROTECTION VISA APPLICATION The Tribunal has before it the protection visa application form lodged by the applicant on 3 October 2023. The applicant, in their protection visa application form, sets out their 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 borrowed $8,000 from an unlicensed moneylender to arrange for a visa to Australia. However, the agent to whom he paid the $8,000 defrauded him and disappeared. c.The unlicensed moneylender began demanding for the return of the $8,000 including sending men to threaten the applicant and breaking windows and throwing red paint on his house. d.The applicant did not contact the authorities due to the lengthy time it takes to investigate cases and the men working for the unlicensed moneylender threated to break his arm if he did. e.Relatives and friends of the applicant helped him financially to get to Australia. HEARING BEFORE THE TRIBUNAL