2320711 (Refugee)

2320711 (Refugee) [2024] AATA 1118 (22 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2320711
COUNTRY OF REFERENCE:                   Vanuatu
MEMBER:Mia Bailey
DATE:22 February 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 February 2024 at 3:22pm
CATCHWORDS
REFUGEE – Protection Visa – Vanuatu – applicant failed to attend tribunal hearing – recurring natural disasters and environmental challenges – harm arising from natural disasters and environmental challenges as described does not amount to persecution – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 426, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs (delegate) on 17 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 the applicant does not engage Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in s 36(2)(aa) and does not satisfy any of the other criteria in s 36(2) of the Act.
On 30 January 2024, the Tribunal wrote to the applicant to advise that it had considered the available information but was unable to make a favourable decision based on that information. The applicant was invited to appear before the Tribunal on 22 February 2024 at 9:30am to give evidence and present arguments. The hearing invitation advised that if the applicant did not appear at the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable him to appear or may dismiss the review application without any further consideration of the application.
The applicant responded to the Tribunal on 3 February 2024 requesting that the hearing be conducted by video and requesting the assistance of a Bislama interpreter. On 5 February 2024, the Tribunal sent the applicant an invitation to appear before it by video on 22 February 2024 at 9:30am and confirmed that a Bislama interpreter would be available. The hearing invitation included the same information as outlined above regarding the potential consequences of non-appearance. The Tribunal sent SMS hearing reminders to the applicant on 15 February 2024 and 21 February 2024.
The applicant did not appear before the Tribunal to give evidence and present arguments at the time and date of the scheduled hearing. Having reviewed the Tribunal file, I am satisfied that the applicant was properly invited to a hearing in accordance with the relevant statutory requirements and was informed of the potential consequences of non-appearance. No reason for the non-appearance has been provided.
In these circumstances I have decided to exercise my discretion under s 426A(1A)(a) of the Act to make a decision on the review without taking any further action to allow or enable the applicant to appear before the Tribunal.
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. Relevant provisions of the Act are extracted in the attachment to this decision.
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 (Department), 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
The issue in this case is whether the applicant engages Australia’s protection obligations under the refugee criterion in s 36(2)(a) or the complementary protection criterion in
s 36(2)(aa) of the Act. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying, any particulars of the claim, or to establish or assist in establishing the claim.[1] For the following reasons, I have concluded that the decision under review should be affirmed.
Background and receiving country
[1] s 5AAA of the Act; Abebe v Commonwealth of Australia (1999) 197 CLR 510
The applicant, a [age]-year-old male, last arrived in Australia on [date] October 2020 on a Temporary Work (International Relations) (subclass 403) visa under the Pacific Australia Labour Mobility Scheme.
The applicant provided a copy of the biodata page of his Vanuatu passport as part of his protection visa application. The delegate accepted that the applicant is a citizen of Vanuatu and there is no information before me to the contrary. I find that the applicant is a citizen of Vanuatu, and that Vanuatu is his receiving country for the purposes of assessing his claims for protection.
Evidence before the delegate
According to the applicant’s protection visa application he was born and resided in [an island]; has never married and has not undertaken any educational studies. He was unemployed in Vanuatu; he supported himself by selling local fruit and had financial support from his parents. No details are provided in the application of any family members.
Regarding the reasons why he left Vanuatu, the applicant stated that he faces significant threats to his safety and well-being due to recurring natural disasters and environmental challenges. These disasters have severely affected his life and livelihood, making it increasingly difficult for him to lead a stable and secure life.
Regarding what he thinks will happen to him if he returns to Vanuatu, he stated that the ongoing impact of natural disasters, particularly cyclones, volcanic eruptions, and rising sea levels, has created a precarious living environment. He fears for his safety and that of his family as they are exposed to life-threatening conditions that have led to a deterioration in their quality of life. In response to whether he thinks he will be harmed or mistreated if he returns to Vanuatu, he stated ‘No’.
The applicant was not invited to attend an interview with the delegate. The delegate found the applicant’s claims to fear ‘economic hardship and natural disasters’ to not be for any of the reasons in s 5J(1)(a) of the Act. As such, he was found to not meet the refugee definition in s 5H(1) of the Act. For the purposes of the complementary protection criterion, the delegate found the applicant’s claimed harm to not amount to any of the types of significant harm under s 36(2A) of the Act.
Evidence before the Tribunal
In his review application, in response to why he believes the delegate’s decision is wrong, the applicant reiterated that he left Vanuatu due to threats to his livelihood and safety arising from natural disasters and environmental challenges which have had a profound impact on his ability to sustain a stable and secure life. The devastation has severely affected his livelihood, making it increasingly challenging to meet basic needs and provide for his family. The economic repercussions of these disasters have left him with limited opportunities to support himself and his family. He is concerned about the potential life-threatening conditions he may be exposed to if he returns to Vanuatu. The unpredictable nature of natural disasters poses a constant threat to his safety and others in the region.
As part of his review application, the applicant submitted extracts of news articles from October 2023 relating to Tropical Cyclone Lola.
As discussed above, the applicant did not appear before the Tribunal to give evidence and present arguments. I have made my decision based on the available information.
Assessment
The applicant’s claims relating to natural disasters and environmental challenges in Vanuatu are generally supported by country information. Vanuatu has a vulnerable economy which is highly susceptible to natural hazards. It has been referred to as the most risk prone place on the planet due to the impacts of natural hazards, with severe effects on the island nation’s economy.[2]
[2] Asian Development Bank, Asian Development Bank Member Fact Sheet Vanuatu, 30 December 2020; United Nations Capital Development Fund, Economic Impacts of Natural Hazards no Vulnerable Populations in Vanuatu, December 2020; and Vanuatu Business Resilience Council, Business Network Brief Vanuatu June 2021, June 2021
In April 2020, Tropical Cyclone Harold, the most powerful storm to hit Vanuatu in the last two years since Cyclone Pam in 2015, ravaged Vanuatu’s islands and caused significant damage to the communities while the country was on COVID-19 pandemic lockdown. Thousands of families were severely affected and displaced. Buildings were damaged and flattened, cutting off electricity and water.[3] Tropical Cyclone Harold hit Vanuatu’s centre, directly impacting Santo’s large island with its second-largest city, Luganville, and many number of populated islands. As estimated by the Vanuatu National Disaster Management Office (VNDMO), around 160,000 people were affected by the cyclone. With at least 95 per cent of houses destroyed, a total of 10,000 families were affected. Overall, the VNDMO projected an estimate of US$100 million worth of damages to the agriculture and tourism sectors.[4]
[3] Vanuatu Business Resilience Council, Business Network Brief Vanuatu June 2021, June 2021
[4] Vanuatu Business Resilience Council, Business Network Brief Vanuatu June 2021, June 2021
According to a December 2020 United Nations Capital Development Fund report:
Tropical cyclones, with associated storm surges and flooding, are the principal hazard affecting Vanuatu, but the country is also exposed to earthquakes and tsunamis, volcanoes, and droughts. Climate change is expected to exacerbate weather-related hazards.
Vanuatu’s relatively small economy, dominated by tourism and subsistence agriculture, is highly vulnerable to natural hazards. Tourism is nature-based and dependent on coastal and inland ecosystems which are vulnerable to damage from natural hazards. Agriculture is vulnerable to damage from cyclones and droughts, and the majority of the population relies heavily on subsistence agriculture for livelihoods and food security. Climate change is expected to adversely affect agriculture through increased frequency to extreme weather events, sea level rise, and disruption of aquatic ecosystems. Natural hazards disproportionately affect poor people, workers in the informal economy, women, and youths. Poor people tend to be more exposed to hazards than wealthier people, are more severely affected by hazards and have fewer resources available to them to cope when disasters do occur. Poverty is a significant issue in Vanuatu, although there is a lack of recent data to confirm the current situation, and the country has high levels of informal and vulnerable employment and subsistence economic activity.[5]
[5] United Nations Capital Development Fund, Economic Impacts of Natural Hazards no Vulnerable Populations in Vanuatu, December 2020
Tropical Cyclone Lola, a Category 5 Cyclone, made landfall in Vanuatu on 25 October 2023, causing damage to houses, schools, infrastructure, plantations, and roads. The devastation left by the cyclone was reported to be ‘immense, especially in the northern provinces of the country’. According to a Red Cross media release, Lola was the third cyclone in Vanuatu in seven months, and ‘meant that communities only just beginning to recover from the twin cyclones, Judy and Kevin, are now reeling in the wake of their compounded impact.’[6]
[6] IFRC, Cyclone Lola leaves trail of destruction in Northern Vanuatu, warning for cyclone season, 26 October 2023
Considering the above, I accept that the applicant has previously experienced threats to his safety and livelihood from natural disasters such as cyclones and other weather-related hazards. I find that there is a real chance that he will experience such harm in the reasonably foreseeable future for this reason if he were to return to Vanuatu. He has also claimed to fear harm from ‘environmental challenges’. Based on the available information I find this to encompass environmental challenges arising from natural disasters and climate-related events such as rising sea levels. I accept that the applicant has experienced such challenges previously and find there to be a real chance that he will do so in the future if he returns to Vanuatu.
However, I find the harm feared by the applicant to not be for any of the reasons in s 5J(1)(a) of the Act. The courts have recognised that while persecution may take a variety of forms of social, political and economic discrimination, it must involve discrimination against a person, whether individually or as a member of a group, because of race, religion, nationality, political opinion or membership of a particular social group.[7]
[7] Applicant A v MIEA (1997) 190 CLR 225 at 258; Chan v MIEA (1989) CLR 379 at 388, 429
I find that harm arising from natural disasters and environmental challenges as described above does not amount to persecution. It follows that the requirements in s 5J(4)(a) and
s 5J(4)(c) – that a s 5J(1)(a) reason be the essential and significant reason for the persecution and that the persecution involve systematic and discriminatory conduct – are not satisfied. I find that the applicant is not a refugee within the meaning of s 5H(1) of the Act.
I have therefore considered whether the applicant engages complementary protection as outlined in s 36(2)(aa), namely whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia to Vanuatu, he will suffer significant harm. I note that ‘significant harm’ is exhaustively defined in s 36(2A) of the Act to mean that a person will be arbitrarily deprived of their life; the death penalty will be carried out on them; or they will be subjected to torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment.
The applicant has not claimed to fear being subjected to the death penalty and I find that this does not arise on the facts. As noted in the Department’s Complementary Protection Guidelines, while ‘arbitrary deprivation of life’ is not defined, it contains elements of unlawfulness and injustice, as well as capriciousness, lack of predictability, unreasonableness, or a lack of proportionality.[8] The Guidelines note, in the context of medical claims, that where the deprivation of life is due to natural causes, it will not amount to arbitrary deprivation of life.[9] I find that any threats to the applicant’s life arising from natural disasters or environmental challenges do not amount to arbitrary deprivation of life.
[8] Department of Home Affairs, Complementary Protection Guidelines, 3.4.1
[9] Department of Home Affairs, Complementary Protection Guidelines, 3.4.1
The definitions of torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment in s 5(1) of the Act each refer to ‘an act or omission’ and require an intention on the part of a perpetrator to inflict certain types of harm. This requires the perpetrator to have an ‘actual, subjective, state of mind’.[10] Any harm that the applicant may experience due to natural disasters or environmental challenges in Vanuatu would not satisfy those definitions as there is no perpetrator with the intention to inflict harm of the type described in those definitions. As such, I find that the claimed harm does not amount to any of the types of significant harm in
[10] SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection [2017] HCA 34 per Kiefel CJ, Nettle and Gordon JJ at [27]; SZSPE v Minister for Immigration and Border Protection [2013] FCCA 1989 at [62] and [72] (upheld on appeal: SZSPE v Minister for Immigration and Border Protection [2014] FCA 267 at [40]).
s 36(2A) and therefore the applicant does not satisfy the complementary protection criterion.
The applicant has not raised any other reason why he fears returning to Vanuatu and I find that none arise on the facts.
Conclusions
For the reasons given above, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or s 36(2)(aa). There is no suggestion that the applicant satisfies s 36(2) 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 criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Mia Bailey
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.
…

[2024] AATA 1118

22 February 2024

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Immigration

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