2321194 (Refugee)

2321194 (Refugee) [2024] AATA 2323 (22 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2321194
COUNTRY OF REFERENCE:                   Vanuatu
MEMBER:Sean Baker
DATE:22 May 2024
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 22 May 2024 at 10:39am
CATCHWORDS
REFUGEE – Protection Visa – Vanuatu –– political payback killings between applicant’s clan and other opposition candidates – applicant has had no involvement with politics – natural disasters – economic harm – did not experience harm in home country – applicant does not have a well-founded fear of persecution –credibility concerns – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 56, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 November 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, a citizen of Vanuatu, applied for the visa on 5 September 2023. The delegate refused to grant the visa on the basis that they found the applicant’s claims lacking in detail.
CONSIDERATION OF CLAIMS AND EVIDENCE
Claims and evidence
The applicant is a [age] year old man. He was born in [Island 1], [Vanuatu] and lived there until he departed for Australia.
He speaks English and is a Seventh Day Adventist. He was a subsistence farmer in Vanuatu and sold farm produce in the markets.
In his application the applicant said that he feared he would be harmed tortured or killed if he returned to Vanuatu. He said that this was due to political payback killings between his clan and other opposition candidates. Other clansmen would harm him because he was the leader of his clans man and exposed their corrupt candidate that lost the elections.
He said that he had experienced harm – he had been attacked several times and almost died. He did not seek help because he did not trust anyone in some organisations that were paid to look for him. Some officials are corrupt and paid to hunt him down.
He said he would be easily found as Vanuatu is a small country. There are no safe places or organisations that would protect him.
The applicant was invited under s 56 to provide additional information about his claims. He did not do so. He was not interviewed by the Department.
The delegate refused his application.
To the Tribunal the applicant provided a copy of the delegate’s decision and a copy of his passport.
The applicant appeared before the Tribunal on 1 May 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
The issue in this case is whether the applicant will suffer persecution in Vanuatu or, if not, whether there is a real risk he will suffer significant harm if he is removed from Australia to Vanuatu. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
At the hearing I discussed the applicant’s life and circumstances with him. He said he had come to Australia just to work, that his family lived on [Island 1], they subsisted on crops grown in the family plot and what he sent over, the family home had been damaged in a cyclone and he had borrowed a lot of money from his cousin to rebuild the house in brick. He also told me that the area that they lived in was affected by [a volcano] and that this made it hard to grow anything but coconut and cassava. Despite being asked several times the applicant was clear that these were his concerns and there were no other reasons he thought he would be harmed on return. He said that no one would harm him on return.
Towards the end of the hearing, I raised with him the political violence claims made in his application. The applicant said that these things had happened but a long time ago and he forgot to mention them. He said that it had been 12 years ago that all these things had happened and so he had not thought to tell me about them. When I noted to him that he had claimed in his application form that these were the reasons he could not return to Vanuatu, he said that he had come to here to work and he had asked a colleague [to] help with his application and what was in the application was this person’s thoughts. I asked if he was saying that these things had not happened to him, and he responded that those things had happened, but they were in the past.
After discussing these matters further with the applicant, I noted to him that the fact he had not raised the political violence claims until I had mentioned them might lead me to doubt that these things had happened at all. The applicant responded that it had been 12 years ago so he had forgotten all of these things and the clans had reconciled.
Having considered the information before me I do not accept that the applicant was involved with or the victim of violence, political or otherwise, in Vanuatu. I spent considerable time discussing the applicant’s life and circumstances, and asking him specifically about reasons he could not return, what he feared and who may harm, and he did not mention anything related to political or clan related violence. It was only when I raised these things with him towards the end of the hearing that he claimed they had occurred, but many years ago and were resolved now. He claimed for this reason that he had forgotten to tell me about them earlier. His explanation for why these were the claims in his protection application were that his friend had written these in his application, but he did not explain why he would have told his friend these things and not raised them at the hearing. I find that his lack of raising these matters at the hearing and only discussing them once I had raised them with him indicates that these events did not occur. I do not accept that he would have told his friend who put these in his application and then forgot to mention them to me. I find that these claims have been invented, either by the applicant and his friend or by the friend, and have no bearing on the applicant’s life or circumstances. At the hearing we spoke at length about his life and the life of his family in Vanuatu and he did not mention or reference the political or clan violence claims at all.
On the basis of these findings I find that the applicant is not the leader of his clansmen. I find he has had no involvement with politics and has not exposed corrupt practices of any candidate in elections. I find that the applicant has not been attacked several times and almost died. I do not accept that he will be harmed tortured or killed due to political payback killings between his clan and other opposition candidates or for any other reason. I find that no one in any organisation or officials are looking for him or hunting him down, either being paid to do so or otherwise.
I do accept that the applicant is working in Australia to support his family. His evidence on this at the hearing was clear and consistent. I accept that he is rebuilding the family house and loaned money from his cousin to do so. I accept as he told me that he has partially repaid the loan to his cousin. I find that the applicant can return to Vanuatu and live with and be supported by his family, can farm the family land and seek work. Although the applicant claimed that there is no work in fruit picking or meat packing, the work he has done in Australia, he has experience in these areas of work and could seek similar work in Vanuatu. I accept that the ash fall makes farming tenuous on [Island 1] but the applicant’s evidence, which I accept, is that his family were able to subsist despite the ash fall and had not taken steps to move. Given this, I find that he could return, help with the farming and also subsist. I accept he may not be able to fully repay his cousin, but I do not accept that he would be harmed by his cousin or anyone else for this reason.
I find that the applicant can return to Vanuatu and there is no real chance he will suffer any harm due to political or clan violence, natural disasters, economic harm or for any other reason identified by the applicant or on the material before me, now or in the reasonably foreseeable future.
Having regard to the complementary protection provisions in s 36(2)(aa), and my reasoning above in relation to the real chance, I find that there is no real risk that the applicant will suffer significant harm from political or clan violence, natural disasters, economic harm or for any other reason identified by the applicant or on the material before me, now or in the reasonably foreseeable future.
Conclusions
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) 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.
Sean Baker
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 2323

22 May 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Natural Justice