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 suffer significant harm.
The applicant appeared before the Tribunal on 8 March 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bislama and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia 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.
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.
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).
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.
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 EVIDENCE
ISSUE
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.
At times he would not have water or electricity.
There were food shortages, and he would have to go without food for a week at times.
His partner does not work, and his oldest child is [Age] and his youngest is [Age].
In Vanuatu it was difficult for him to earn money and send his children to school.
The applicant stated that by working in Australia he is able to pay for his children’s education so they may have jobs.
The Tribunal put to the applicant that climate, weather and cyclones were natural disasters and would not qualify for protection and this may be a reason for the Tribunal to affirm the decision under review.
The applicant then stated that he was in a difficult financial position, and he needed to pay his children’s school fees. The Tribunal explained that would also not be a ground for protection.
The applicant then stated that he had an issue with his partner back in Vanuatu. The Tribunal asked him to elaborate on what this issue was.
The applicant stated that when he came to Australia, his [brother] [Mr A] came to his house to look after his partner and children.
However, his [brother] had an affair with his partner. The applicant was upset and not happy about this.
His [brother] [Mr A] is now in Queensland.
The applicant stated that his partner has said to him that if he returns to Vanuatu, she would put a knife to his throat. The Tribunal understood this to mean she has made a threat to kill him and that if the applicant returned, she would kill the applicant or at least cause him serious harm.
The Tribunal asked how these threats were made by his partner. The applicant stated there were messages sent to his phone, but that phone was broken and he no longer had access to those messages.
The Tribunal asked the applicant to explain why he had not made this claim in his initial protection visa application. The applicant replied that the threat from his partner occurred in April 2023.
The Tribunal asked the applicant whether he could seek the help and assistance of the local chief and police in Vanuatu. The applicant replied that his [Relative] was in the police and had said to the applicant that he would assist him when he returned to Vanuatu.
The Tribunal asked if there were any other reasons to which the applicant responded by saying he was worried about his children, so he wanted to work and earn money and he wanted his children to have a good education so they can have a good job.
The Tribunal asked the applicant whether there was anything else he wished to say. The applicant declined.
The Tribunal asked the applicant whether he wanted to file any submissions. The applicant sought and was granted time to file further material. He submitted a video of his partner which is discussed below.
IDENTIFYING THE PROTECTION CLAIMS
Fear of harm from recurring natural disasters of weather, climate, and cyclones.
Fear of harm from his partner who has threatened to harm him.
SECTION 423A – NEW PROTECTION CLAIMS MADE AT TRIBUNAL HEARING
The Tribunal notes that the applicant did not raise the claim about his fear of harm from his partner before the primary decision was made, and these would constitute a new claim subject to s 423A of the Act.
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.
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].
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 the new claim to the delegate.
The Tribunal is satisfied that there is a reasonable explanation per s 423A of the Act for the new claims which satisfies the test in s 423A and so the Tribunal has not drawn an adverse inference in relation to the credibility of these new claims under s 423A(2) of the Act.
COUNTRY INFORMATION
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
Potential climate change-related hazards in Vanuatu include increased daily and extreme temperatures, longer dry periods, sea level rise, ocean acidification, and more intense extreme weather events. In 2015 the Vanuatu government projected climate change impacts as including reduced freshwater availability; changed crop harvest, planting and fruiting seasonality; increased pests and increased human, animal, crop and tree diseases; saltwater inundation and intrusion of coastal land and groundwater; compromised food security; coral reef deterioration; reduced fisheries productivity; infrastructure damage; coastal land loss; and reduced economic growth and revenue generation.[4]
[4] ‘Vanuatu Climate Change and Disaster Risk Reduction Policy 2016-2030’, Government of the Republic of Vanuatu, Secretariat of the Pacific Community (SPC), 2015, pp.5-6, on National Advisory Board on Climate Change & Disaster Risk Reduction. Government of Vanuatu website, 20220329085555.
A December 2020 UN Capital Development Fund (UNCDF) report on the economic impacts of natural hazards on vulnerable populations in six PICs, including Vanuatu, 50 stated of climate change and Vanuatu states: ‘Cyclones, bringing damaging winds, heavy rain, flooding, and storm surge, are the most significant natural hazard for Vanuatu. The country experiences an average of 2 to 2.4 cyclones per year, mainly between November and April (Australian Bureau of Meteorology and CSIRO, 2014, p. 320; Handmer & Iveson, 2017, p. 60). Storm surges associated with cyclones, and flooding due to heavy rains, are common occurrences (Jackson, McNamara, & Witt, 2017, p. 365). Landslides are also occasionally triggered by precipitation from cyclones (Jackson et al., 2017, p. 365). The average annual loss caused by cyclones has been estimated as 5.0% of GDP (PCRAFI, 2011f, p. 5). Climate change models produce varying projections of cyclone formation rates, with a majority suggesting a likely decrease of 15% to 35% in cyclone formation affecting Vanuatu by the end of the century (Australian Bureau of Meteorology and CSIRO, 2014, p. 333)’.[5]
[5] ‘Economic Impacts of Natural Hazards on Vulnerable Populations in Fiji, Papua New Guinea, Samoa, Solomon Islands, Tonga, and Vanuatu’, UN Capital Development Fund (UNCDF), December 2020, p.32, 20220207135107; References are explained at pp.155-188
Vanuatu has an independent and impartial judiciary.[6]
[6] 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.
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.[7] Threat to kill is an offence punishable by 15 years in prison per s 115 of the Penal Code. Homicide is punishable by 20 years to life in prison per s 106 of the Penal Code.
[7] ‘[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 ON THE EVIDENCE
The Tribunal, after hearing the applicant and considering the material before it, makes the following findings.
The applicant is from Vanuatu.
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.[8]
[8] [1999] HCA 14 at [191]–[192].
The applicant has been through previous natural disasters in Vanuatu including cyclones.
A previous cyclone had damaged the applicant’s house.
The applicant has faced difficulties in Vanuatu including periods of lack of food, water and electricity.
The applicant is working in Australia to earn and save money for his children’s education.
REFUGEE CRITERION ASSESSMENT
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.
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%.[9]
[9] (1989) 169 CLR 379.

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.
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.
All the applicant’s claims are required to be assessed against the refugee criterion as follows. This also includes giving proper consideration to all the integers of each claim and considering the claims separately and cumulatively.
Recurring natural disasters claim assessment
The applicant claims he would suffer serious harm if he returns to Vanuatu due to the effects of recurring natural disasters.
The applicant was concerned about the effects of cyclones, climate and weather.
The Tribunal does accept that a past cyclone had damaged his home.
The Tribunal does accept that the applicant has suffered periods of lack of food, water and electricity.
Natural disasters including cyclones are not caused by the acts or omissions of entities or persons. They are not targeting a specific individual such as the applicant. They do not involve and are not caused by systemic and discriminatory conduct per s 5J(4)(c) of the Act. They would be faced by the population generally and not by the applicant personally.
Natural disasters including cyclones do not arise on account of a person’s race, religion, nationality, membership of a particular social group or political opinion per s 5J(1)(a) of the Act.
The Tribunal is not satisfied that the applicant has a well-founded fear of persecution on the basis of recurring natural disasters.
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.
Partner’s threat claim assessment
The applicant claims he would suffer serious harm if he returns to Vanuatu as his partner would harm him.
Serious harm includes matters such as those provided in s 5J(5) of the Act.
The applicant stated that his partner had made a threat to kill him and that if he returned, she would kill him by taking a knife to his throat.
The Tribunal accepts that the applicant discovered his partner’s relationship with his brother [Mr A]. This would have been a tense and unhappy discovery.
However, the Tribunal does not accept that the applicant’s partner will cause him serious harm.
The Tribunal finds that the threat of harm by his partner is not credible. It was not mentioned in the protection visa application despite occurring in April 2023. The applicant lodged his protection visa application in October 2023. The applicant did not mention the fear of this harm at the hearing before the Tribunal until the Tribunal informed him that his claim for protection based on natural disasters might be a reason for affirming the decision under review. The applicant stated he had messages on his phone of the threats from his partner, but that phone was damaged and those messages could not be accessed, which the Tribunal finds as conveniently self-serving and does not accept. Neither has the applicant made any effort to formally lodge a criminal complaint against his partner at least to the extent of making a threat with a knife to harm him which may amount to a threat to kill contrary to s 115 of the Vanuatu Penal Code.
The applicant sent a video after the hearing of his partner holding a knife and making threats, however when viewing the video, the Tribunal noticed towards the end the applicant’s partner was attempting to disguise herself indicating with her hand to stop the recording and her speech pattern was rehearsed. Furthermore, making a threat to kill in Vanuatu is a serious offence with punishment being up to 15 years in prison under the Vanuatu Penal Code s 115, in light of which it would not make sense for the applicant’s partner to record herself making a credible threat and expose herself to criminal liability of such magnitude. The applicant could now use the video against her and make a criminal complaint with the Vanuatu Police which he has not. The video has been staged and prepared to bolster his evidence. The Tribunal does not place any weight on this video recording.
To seriously harm or kill the applicant would deprive his partner of the support she needs for herself and their [children] in Vanuatu. The applicant’s brother [Mr A] who had the affair with his partner is now in Queensland and the evidence was that it is the applicant who is supporting his partner and their [children]. The applicant had given evidence that his partner does not work, and he works in Australia to save money for the children’s schooling.
Country information suggests that Vanuatu has a fair and impartial judiciary. Threat to kill is an offence punishable by 15 years in prison. The applicant would have recourse to the police and law courts in Vanuatu or the chiefly system and customary laws if he returned to Vanuatu and his partner would seek to seriously harm him. He could even use the video of his partner as incriminating evidence against her. Assault, threats to kill and killing are offences contrary to Vanuatu criminal laws. Further his [Relative] who is in the Vanuatu police said he would assist the applicant on his return. The applicant would be able to access effective state protection per s 5LA of the Act.
The Tribunal is not satisfied that there is a real chance that if the applicant returned to Vanuatu, he would face serious harm from his partner.
The Tribunal is not satisfied that the applicant has a well-founded fear of persecution on the basis of fearing serious harm from his partner.
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
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.
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, there is a real risk he will suffer significant harm.
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.
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.[10]
[10] [2013] FCAFC 33 at [246].
All the applicant’s claims are required to be assessed against the complementary protection criterion as follows. This also includes giving proper consideration to all the integers of each claim and considering the claims separately and cumulatively.
Recurring natural disasters claim assessment
The Tribunal refers to the above findings in the assessment of this claim in the refugee criterion assessment and relies on it.
Recurring natural disasters including cyclones would be faced by the population of the country generally and not by the applicant personally per s 36(2B)(c) of the Act.
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.
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 of recurring natural disasters.
The Tribunal is not satisfied that the applicant meets the complementary protection criterion in s 36(2)(aa) of the Act on this claim.
Partner’s threat claim assessment
The Tribunal refers to the above findings in the assessment of this claim in the refugee criterion assessment and relies on it.
The Tribunal relies on and adopts the above credibility findings with respect to this claim and the supporting video of his partner.
The Tribunal does not find this to be a credible threat.

100. If the applicant does return to Vanuatu where his partner would seek to harm him, he also has access to the local legal system for protection.
101. 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 and village chief. Assault, threats to kill and killing are offences contrary to Vanuatu criminal law. Threat to kill is an offence punishable by 15 years in prison under the Vanuatu Penal Code s 115. The applicant would have recourse to the police and the law courts in Vanuatu or the chiefly system and customary laws in relation to the threats by his partner. He could even use the video of his partner as incriminating evidence against her. Further his [Relative] who is in the Vanuatu police said he would assist the applicant on his return.
102. 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 partner would harm him.
103. 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
104. 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).

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).
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

107. 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.
…