2319833 (Refugee) - [2024] AATA 2288

2319833 (Refugee) [2024] AATA 2288 (25 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2319833
COUNTRY OF REFERENCE:                   Vanuatu
MEMBER:Donald Gordon
DATE:25 March 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 25 March 2024 at 4:36pm
CATCHWORDS
REFUGEE – protection visa – Vanuatu – natural disasters, environmental problems and climate change – limited infrastructure and lack of government assistance – no water or electricity, and food shortages – house damaged by cyclone – financial position – working in Australia to support family in home country – new claim made at hearing – no adverse inference drawn – applicant’s partner’s affair with applicant’s brother – brother now in different part of Australia – threats by partner – credibility – video provided after hearing showing partner holding knife and making threats assessed to be staged – no approach to police – country information – potential climate change-related hazards not systematic and discriminatory conduct, and faced by population generally – laws against making threats to kill and legal protection available – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), (4)(c), (5), 5LA, 36(2)(a), (aa), (2A), (2B)(b), (c), 65, 423A(2)
Migration Regulation 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth [1999] HCA 14
Chan Yee Kin v MIEA (1989) 169 CLR 379
EQU19 v MICMSMA [2022] FedCFamC2G 609
MIAC v SZQRB [2013] FCAFC 33
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 15 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 7 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…

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 2319833 (Refugee)

Details

AGLC: 2319833 (Refugee) [2024] AATA 2288
Case: [2024] AATA 2288
Decision Date: 25 March 2024

CaseChat Overview and Summary

The applicant, a citizen of Vanuatu, sought a protection visa in Australia, claiming fear of returning to his home country due to recurring natural disasters, inadequate infrastructure, and lack of government assistance. He also alleged his house had been damaged by a cyclone and that he was working in Australia to support his family in Vanuatu. A new claim was made at the hearing concerning threats from his partner, who was allegedly having an affair with the applicant's brother. The Tribunal was required to determine whether the applicant met the criteria for a protection visa under section 36(2)(a) (refugee criterion) or section 36(2)(aa) (complementary protection criterion) of the Act, or as a family member under sections 36(2)(b)-(c).

The Tribunal considered the applicant's claims regarding natural disasters and environmental problems in Vanuatu. It found that while these issues affected the population generally, they did not constitute systematic and discriminatory conduct against the applicant. The Tribunal also assessed the applicant's claims of threats from his partner, noting that a video presented as evidence of these threats was assessed as staged. The Tribunal further observed that no approach had been made to the police regarding these threats and that laws against making threats to kill, with available legal protection, existed in Vanuatu.

The Tribunal concluded that the applicant did not satisfy the refugee criterion under section 36(2)(a) or the complementary protection criterion under section 36(2)(aa). It also found no basis for the applicant to satisfy the criteria as a family member under sections 36(2)(b)-(c). Consequently, the Tribunal affirmed the decision under review, finding that Australia did not have protection obligations towards the applicant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCEISSUE The issue before the Tribunal is whether the applicant is a person in respect of whom Australia has protection obligations pursuant to:a.The refugee criterion in s 36(2)(a) of the Act; or b.The complementary protection criterion in s 36(2)(aa) of the Act; or c.By virtue of ss 36(2)(b)–(c), being a member of the same family unit as a non‑citizen who is mentioned in s 36(2)(a) or s 36(2)(aa) and holds a protection visa of the same class as that applied for by the applicant. For the following reasons, the Tribunal has concluded that the decision under review ought to be affirmed.COUNTRY OF NATIONALITY The Tribunal finds the applicant’s identity and nationality are confirmed by his passport and recorded personal particulars. The Tribunal finds that the applicant is a citizen of Vanuatu, which is also his receiving country for the purpose of his protection claims and assessments. In the absence of any contrary evidence before it, the Tribunal finds the applicant does not have a right to reside in a country other than Vanuatu, and therefore s 36(3) of the Act is not applicable.THE PROTECTION VISA APPLICATION The Tribunal has before it the protection visa application form lodged by the applicant on 7 October 2023. The applicant, in his protection visa application form, sets out his reasons for claiming protection, which are summarised as follows:a.The applicant is seeking protection in Australia, so he does not have to return to Vanuatu. b.The applicant is seeking protection from recurring natural disasters and its devasting consequences that frequently affect Vanuatu. c.Limited resources and infrastructure in Vanuatu make it difficult to adequately prepare for, respond to, and recover from natural disasters. d.Lack of effective government assistance and challenges in building life after these disasters has left him feeling vulnerable and unsafe in Vanuatu. e.The applicant did not relocate as he wants to stay and defend his home and has adequate firefighting equipment. HEARING BEFORE THE TRIBUNAL The applicant appeared before the Tribunal to give evidence and make submissions in support of his claims for protection. He did not call any supporting witnesses. The applicant gave sworn evidence as follows. The applicant was [Age] years of age at the time of hearing. He has a partner with whom he has [children]. They are all in Vanuatu. He attended primary school and worked as [an Occupation]. His fear of returning to Vanuatu was due to the climate and environmental problems in Vanuatu and the cyclones damaging his home.

Decision

Reasons for decision

There is no suggestion that the applicant satisfies s 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criteria in s 36(2).DECISION

Ratio Decidendi

Legal Principle Established

If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.Mandatory considerations In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCEISSUE The issue before the Tribunal is whether the applicant is a person in respect of whom Australia has protection obligations pursuant to:a.The refugee criterion in s 36(2)(a) of the Act; or b.The complementary protection criterion in s 36(2)(aa) of the Act; or c.By virtue of ss 36(2)(b)–(c), being a member of the same family unit as a non‑citizen who is mentioned in s 36(2)(a) or s 36(2)(aa) and holds a protection visa of the same class as that applied for by the applicant. For the following reasons, the Tribunal has concluded that the decision under review ought to be affirmed.COUNTRY OF NATIONALITY The Tribunal finds the applicant’s identity and nationality are confirmed by his passport and recorded personal particulars. The Tribunal finds that the applicant is a citizen of Vanuatu, which is also his receiving country for the purpose of his protection claims and assessments. In the absence of any contrary evidence before it, the Tribunal finds the applicant does not have a right to reside in a country other than Vanuatu, and therefore s 36(3) of the Act is not applicable.THE PROTECTION VISA APPLICATION The Tribunal has before it the protection visa application form lodged by the applicant on 7 October 2023. The applicant, in his protection visa application form, sets out his reasons for claiming protection, which are summarised as follows:a.The applicant is seeking protection in Australia, so he does not have to return to Vanuatu. b.The applicant is seeking protection from recurring natural disasters and its devasting consequences that frequently affect Vanuatu. c.Limited resources and infrastructure in Vanuatu make it difficult to adequately prepare for, respond to, and recover from natural disasters. d.Lack of effective government assistance and challenges in building life after these disasters has left him feeling vulnerable and unsafe in Vanuatu. e.The applicant did not relocate as he wants to stay and defend his home and has adequate firefighting equipment. HEARING BEFORE THE TRIBUNAL