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

1. 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).

2. The applicant, who claims to be a citizen of Vanuatu, applied for the visa on 3 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 9 February 2024 to give evidence and present arguments.

   CRITERIA FOR A PROTECTION VISA

5. 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 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.

6. 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.

7. 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).

8. 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.

9. 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

10. 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 EVIDENCE

    ISSUE

11. 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.

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

    COUNTRY OF NATIONALITY

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

14. 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.

15. 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

16. The applicant is a national of Vanuatu.

17. The applicant last arrived in Australia on [date] July 2022.

    THE PROTECTION VISA APPLICATION

18. The Tribunal has before it the protection visa application form lodged by the applicant on 3 October 2023.

19. 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

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

21. He did not call any supporting witnesses.

22. He did submit a payslip from [Company 1] discussed below.

23. The applicant gave sworn evidence as follows.

24. The applicant was born in Vanuatu.

25. 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].

26. He is not married, does not have a current partner and does not have any children.

27. The applicant stated that he did not want to go back to Vanuatu but he also knew that ‘Vanuatu is not a refugee country’.

28. 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.

29. 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’.

30. The applicant in response to the family land dispute moved away from his land and spent 7 years working in [City 1].

31. Life was very hard working in [City 1], his salary only covered his basic living expenses and his financial situation worsened during COVID-19.

32. 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.

33. The applicant stated he only wanted to stay and work in Australia for 5 to 10 years so he could save enough money to go back to Vanuatu to buy a piece of land where he could build a house and would not have to rent. With his own land he would be able to grow his own food.

34. He stated that Vanuatu is a very expensive place and his salary only covered his expenses. He had moved away from the family land dispute to [City 1] so he could avoid the anger and revenge he felt against his family but [City 1] was very expensive and his salary only met his basic expenses.

35. The Tribunal asked the applicant about his protection visa application claims about the $8,000 borrowed from an unlicensed agent and the threats of harm. The applicant replied that he did not wish to maintain that claim and withdraws it.

36. The Tribunal asked the applicant why he had not raised his family land dispute in his protection visa application. The applicant stated that he paid a person $200 to fill in his protection visa application and he did not read it before it was lodged with the Department.

37. The applicant reiterated he knows that ‘Vanuatu is not a refugee country’.

38. The applicant stated he is seeking protection from his family not allowing him to access, live and grow food on his land. His land is connected and adjoins the land of Grandfather [A] and hence his cousins want his land.

39. The Tribunal asked whether the police and courts in Vanuatu could assist the applicant with his family land dispute. The applicant stated that going to court is very expensive and land cases take many years and possibly he would die and even his children would not see the outcome of a land case.

40. The Tribunal asked whether the local tribal chief could assist the applicant with his family land dispute. The applicant replied that the local tribal chief [C] was aligned with his family and supported their claim on his land. Chief [C] owned the land and will not assist the applicant.

41. The Tribunal asked the applicant if he had been seriously harmed due to his family land dispute. The applicant stated he had not. It was more the looks his family members gave him and they would destroy the vegetables and fruits he planted on his land. He was not allowed to live on his land.

42. The Tribunal asked the applicant if he had any fears of persecution. The applicant stated he had not.

43. The Tribunal discussed with the applicant a payslip from [Company 1] he submitted to the Tribunal and the applicant replied that this was evidence that he could work in Australia.

44. The applicant again reiterated he just needed to stay and work for 5 to 10 years in Australia so he could buy his own land in Vanuatu.

45. The Tribunal put to the applicant that on the above evidence given, the Tribunal was concerned that the applicant did not have grounds for claiming for protection, and that the evidence given by the applicant might be grounds for affirming the decision under review. The applicant confirmed he understood the Tribunal’s concerns but did not provide a reply.

46. The Tribunal then asked the applicant if he wanted a break so he could consider his protection claim and add anything further. The applicant stated he did not want a break.

    SECTION 423A – NEW CLAIMS

47. The Tribunal notes that the applicant did not raise the family land dispute claim before the primary decision was made, and this would constitute a new claim subject to s 423A of the Act.

48. 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.

49. 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].

50. 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 this new claim to the delegate.

51. The Tribunal also accepts that the person who prepared the protection visa application for the applicant did not settle or approve it with the applicant prior to lodgement, where he would have had an opportunity to put forward this new claim.

52. The Tribunal is satisfied that there is a reasonable explanation per s 423A of the Act for the new claim raising the family land dispute 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

53. 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

54. 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.

55. 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.’

56. 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.

57. 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.’

58. Vanuatu has an independent and impartial judiciary for civil matters.[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.

59. The Government of Vanuatu has increased judges and magistrates and implemented an automated case management system to track the life of cases from registration to completion.[9]

    [9] United Nations, Human Rights Council, Working Group on the Universal Periodic Review, Thirty Second Session, 21 January – 1 February 2019, National report submitted in accordance with paragraph 5 of the annex to Human Rights Council resolution 16/21 – Vanuatu, [46].

60. 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.[10]

    [10] ‘[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

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

62. The applicant is a citizen of Vanuatu.

63. The applicant no longer maintains his initial protection visa application claim.

64. The applicant has made a new claim of a family land dispute against his paternal cousins and economic hardship.

65. 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.[11]

    [11] [1999] HCA 14 at [191]–[192].

66. The applicant does not fear he will be seriously harmed if he returns to Vanuatu.

67. The applicant was able to move to [City 1] to avoid the family land dispute. However, the pay he earned in [City 1] only covered his basic living expenses.

68. The applicant wants to stay and work in Australia for the next 5 to 10 years to earn money to buy a piece of land in Vanuatu where he can build a home and grow his food.

1. The Tribunal finds that the applicant has a deep connection to land in general and specifically to the land forming the basis of the family land dispute. The applicant explained to the Tribunal that his land was good for lobster and fishing access, and he could grow fruits and vegetables. He needed the land to survive. Without his land, he would need to buy food.

   REFUGEE CRITERION ASSESSMENT

2. 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.

3. 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%.[12]

   [12] (1989) 169 CLR 379.

4. 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.

5. 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.

6. The Tribunal accepts that the applicant is a member of a particular social group, that of being the youngest in a family and also of being adopted. The Tribunal accepts that this has caused the applicant to be excluded by his family members from his land and has caused the applicant to move away from his land and find employment to support himself.

7. Both of the applicant’s claims, being the fear of harm due to economic hardship and the family land dispute, are required to be assessed against the refugee criterion as follows.

   Economic hardship claim assessment

8. The applicant claims he would suffer serious harm if he returns to Vanuatu as salaries are low and the cost of living is high. The applicant states that Vanuatu is very expensive and his salary would only cover his expenses.

9. On the evidence before the Tribunal, the claim of persecution due to economic hardship put forward by the applicant, even if taken at its highest, would not amount to significant economic hardship that threatens the applicant’s capacity to subsist per s 5J(5)(d) of the Act. Further, the applicant did not suggest that the economic hardship experienced by him would reach this level. The Tribunal does not accept that the economic hardship the applicant would face involves serious harm to the applicant.

10. There was no evidence before the Tribunal and neither was it suggested by the applicant that there economic hardship claimed by the applicant involved systemic and discriminatory conduct by official acts or omissions towards the applicant.

11. The applicant’s evidence was that he has one year left on his degree from the [University]. He was previously able to secure employment in [City 1] for a period of 7 years. The Tribunal does not accept the applicant will suffer economic hardship amounting to serious harm if the applicant returns to Vanuatu.

12. The applicant gave evidence he had not suffered any prior serious harm. This is not an essential requirement. However, the applicant was only able to point to his salary only meeting his basic living expenses as the evidence of economic hardship. The applicant’s receipt of a low salary does not amount to serious harm.

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

14. On the applicant’s own evidence, he is prepared to return to Vanuatu once he has stayed in Australia for 5 to 10 years and earned enough to buy his own land. The Tribunal accepts this statement as showing the applicant does not have a subjective fear of persecution.

15. The Tribunal is not satisfied the economic hardship claimed by the applicant meets the criteria in ss 5J(1)(a) and 5J(4) of the Act.

16. The Tribunal is not satisfied that there is a real chance that if the applicant returned to Vanuatu, he would face serious harm due to economic hardship either now or in the reasonably foreseeable future.

17. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution based on economic hardship.

18. The Tribunal is not satisfied that the applicant meets the refugee criterion in s 36(2)(a) of the Act.

    Family land dispute claim assessment

19. The applicant claims he would suffer serious harm if returned to Vanuatu due to his family land dispute.

20. The Tribunal accepts that the applicant has been excluded from his land by his family members as he is the youngest and also adopted.

21. The Tribunal accepts that the applicant has had to move away from his land and find employment and rent. He is not able to live on his land and grow his own food.

22. However, the Tribunal does not accept that the applicant would suffer serious harm due to his family land dispute.

23. The applicant gave evidence he had not suffered any prior serious harm. This is not an essential criterion. However, the only past harm the applicant could point to was the looks given to him, his vegetables and fruits being destroyed and he being excluded from his land by his family members.

24. The applicant gave evidence he was able to move to [City 1] and find work to avoid the family land dispute. His concern was that his salary only covered his basic living expenses. The Tribunal finds that the applicant could relocate away from his family land dispute and avoid any harm he fears.

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

26. On the applicant’s own evidence, he is prepared to return to Vanuatu once he has stayed in Australia for 5 to 10 years and earned enough to buy his own land. The Tribunal accepts this statement as showing the applicant has no subjective fear of persecution.

27. Country information states that the applicant would be able to access the local legal system to seek justice in relation to his family land dispute. There is no evidence that the applicant has accessed the local legal system to resolve his family land dispute. There is also no evidence that the applicant has been denied access to the local legal system to resolve his family land dispute. The Tribunal prefers the country information on indigenous land rights and access to the justice system in Vanuatu over the applicant’s evidence that it would take many years and even his children might not see an outcome if he tried to access the local legal system. The Tribunal finds that there is effective state protection from the local legal system.

28. The Tribunal is not satisfied that the applicant’s claim that he fears he would face serious harm due to his family land dispute meets the criteria in ss 5J(1)(a) and 5J(4) of the Act.

29. The Tribunal is not satisfied that there is a real chance that the applicant would face serious harm due to his family land dispute either now or in the reasonably foreseeable future if he returns to Vanuatu.

30. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution on account of his family land dispute.

31. The Tribunal is not satisfied that the applicant meets the refugee criterion in s 36(2)(a) of the Act.

    COMPLEMENTARY PROTECTION CRITERION ASSESSMENT

32. 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.

101.   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.

102.   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.

103.   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.[13]

[13] [2013] FCAFC 33 at [246].

104.   Both of the applicant’s claims, being harm from economic hardship and harm due to his family land dispute, are required to be assessed against the complementary protection criterion as follows.

Economic hardship claim assessment

105.   The Tribunal refers to the above assessment of the applicant’s economic hardship in the refugee criterion assessment and relies on it.

106.   The applicant did not suggest, nor did the evidence before the Tribunal disclose, that the economic hardship claimed 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.

107.   The economic hardship faced by the applicant would be one that would be faced by the population of Vanuatu generally and is not faced by the applicant personally. The applicant claims that salaries are low and the cost of living is high. The applicant states that Vanuatu is very expensive and his salary would only cover his expenses. This is a complaint about the general state of the economy and does not amount to significant harm.

108.   The applicant gave evidence that he was able to move to [City 1] where he found employment and worked for 7 years. He has a year left to complete his degree from the [University]. The Tribunal does not accept there is a real risk the applicant will suffer economic hardship amounting to significant harm if the applicant returns to Vanuatu.

109.   On the applicant’s own evidence, he is prepared to return to Vanuatu once he has stayed in Australia for 5 to 10 years and earned enough to buy his own land. 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.

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

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

112.   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 due to economic hardship.

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

Family land dispute claim assessment

114.   The Tribunal refers to the above refugee criterion assessment and findings on the applicant’s claim of harm from his family land dispute.

115.   The applicant gave evidence of harm from his family members as being the looks he was given and his vegetables and fruits being destroyed, along with exclusion from his land.

116.   The applicant did not suggest, nor did the evidence before the Tribunal disclose, that the family land dispute claimed 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.

117.   The applicant gave evidence that he wanted to stay in Australia for a further 5 to 10 years to earn enough money to buy a piece of land in Vanuatu to build a home and grow his own food.

118.   On the applicant’s own evidence, he is prepared to return to Vanuatu once he has stayed in Australia for 5 to 10 years and earned enough to buy his own land. 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.

119.   The applicant gave evidence that he was able to relocate to [City 1] and work for 7 years where he managed to avoid the family land dispute. The Tribunal accepts the applicant would be able to relocate in Vanuatu to a place such as [City 1] to avoid a real risk of suffering significant harm.

120.   The applicant has access to the local legal system to seek justice over his family land dispute. Country information states that persons such as the applicant would be able to access the local legal system to determine the family land dispute. The Tribunal prefers the country information to the applicant’s evidence that he would pass away and even his children might not see a resolution through the legal system.

121.   The Tribunal does not find the applicant’s claim of harm due to his family land dispute meets the criteria in s 36(2A) of the Act.

122.   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 due to his family land dispute.

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

CONCLUSION

124.   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

127.   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

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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.

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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.

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