2321260 (Refugee)

2321260 (Refugee) [2024] AATA 3634 (17 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2321260

COUNTRY OF REFERENCE: Vanuatu
MEMBER:Frank Russo
DATE:17 May 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 17 May 2024 at 5:16pm
CATCHWORDS
REFUGEE – protection visa – Vanuatu – no Convention nexus – natural disasters – family deaths attributed to witchcraft – land dispute – paying off land – delay in applying for protection – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo & Anor (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
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 5 December 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 18 October 2023. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant is a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal on 6 March 2024 to give evidence and present arguments. The 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
The issues in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J of the Act in Vanuatu and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vanuatu, there is a real risk that he will suffer significant harm.
The applicant provided the Tribunal with his application for review, together with a copy of the delegate’s decision, notice of the decision from the Department and a screenshot of a news article: ‘All clear given in Vanuatu, Lola downgraded to Ex-Topical Cyclone’.
On 29 February 2024 the applicant sent an email requesting an interpreter in the Bislama language.
At the hearing the applicant provided a copy of his Vanuatuan passport as well as a printout with eight photographs which featured the graves of his parents and damage he claims was caused by cyclones.
Following the hearing, on 24 March 2024, the applicant provided the Tribunal with a number of additional documents, which included emails and the following documents which were each submitted as individual pages:
a.A handwritten list containing [number] names;
b.Legal documents relating to a land dispute, including:
i.Interim order (in Bislama) of the [Court 1] in the matter of [Mr A] v [the applicant’s family] and [Family B] (Civil Case [Number] of 2004), dated [in] September 2004;
ii.Decision of the [Court 1] in the matter of [Mr A] v [the applicant’s family] (Civil Case [Number] of 2004), dated [in] April 2014;
iii.Two land maps or plans, both of which are blurred and illegible;
c.One page extract of a land title for [Volume and Folio numbers], issued by a land titles office in [Country 1] (in [Language 1]);
d.Certificates by [Pastor A], each dated [in] March 2024, that he performed the funeral services for:
i.[Brother A], the applicant’s eldest brother, who passed away [in] January 2021;
ii.[Relative A], described as the applicant’s ‘little Dad’, who passed away [in] January 2021;
iii.[Uncle A], described as the applicant’s ‘little Dad’, who died [in] July 2022;
iv.[Grandfather A], the applicant’s grandfather, who died [in] October 2022;
v.[Father A], the applicant’s father, who died [in] January 2023; and
vi.[Mother A], the applicant’s mother, who died [in] September 2023.
The applicant submitted four emails on 24 March 2024, which included the following text explaining the relevance of the above documents:
a.‘Documents of the land (court and decision and land map)’;
b.‘[Village 1] is my village and my dad grand father ([family name]) give one half land for church’;
c.‘The certificate of my family’s have made by my last dad smoll brother he is a pastor of the church and he do the funeral of all my family’s back in the village’; and
d.‘In three years Time I got more than 10 of my family’s dead some of them I don receive the dead certificate the reason why I’m applying for 866 visa because my name also appears in the list I been sending you …’
The Tribunal has had regard to these documents. The Tribunal has also had regard to the documents on the Department file, which include a system-generated copy of the application for the Protection visa, and article from Economic and Social Commission for Asia and the Pacific about Cyclones Judy and Kevin and a screenshot of a news article from ABC News dated 4 March 2023: ‘Tropical Cyclone Kevin brings destructive winds and heavy rain to Vanuatu’s capital Port Vila’. The file also contains a copy of the biodata pages of the applicant’s Vanuatuan passport.
The Tribunal, in reaching its decision, has taken into account all of the evidence before it. It has also taken into account independent country information about Vanuatu.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity
The applicant provided a copy of his Vanuatuan passport to the Department and to the Tribunal. On the basis of this information, and without any information to the contrary, the Tribunal accepts that the applicant is who he claims to be, that he is a national of Vanuatu, which is also his receiving country.
The applicant claimed at the hearing that he did not have a right to enter and reside in any third country. On the basis of the information before the Tribunal I accept this claim and find that the applicant does not have a right to enter and reside in any third country.
Claims
Claims made with visa application
In his Protection visa application, the applicant claims that he was born in [Location 1], which is [near] [Island 1], but then lists ‘Port Vila’ as the State/Province. He declares that he lived in [Village 2], Port Vila from [specified year] to June 2021. He declares that he is a Christian and of Vanuatuan ethnicity. He declares that he last entered Australia [in] June 2021, holding a visa for seasonal work, and that he travelled to Australia using his own passport.
The applicant provided the following statement as to the reasons why he left Vanuatu:
In light of the recurring and often devastating natural disasters that plague Vanuatu, I felt a profound sense of fear and vulnerability. It became increasingly clear that in order to secure a safer and more stable future for myself, I needed to make this difficult decision to relocate to Australia. I made this choice with the intention of working here and escaping the constant threat of natural calamities that have, for too long, cast a shadow over my homeland’
The applicant responded ‘No’ to the question of whether he experienced harm in Vanuatu. He declared that he did not move or try to move to another part of the country, and claimed the reasons for this were financial limitations and fear of being caught in other natural disasters. He claims he fears returning to Vanuatu because of a deep-seated fear of recurring natural disasters that plague the area. He claims that the authorities cannot protect him because they have limited resources and cannot provide adequate protection or support.
Delegate’s decision
The applicant provided a copy of the delegate’s decision with his application for review. There is nothing in the delegate’s decision to indicate that the applicant was invited to attend a protection visa interview with the Department.
The delegate made a decision based on the applicant’s written claims. The delegate’s decision advises that on 27 October 2023 the applicant was sent an acknowledgement of a valid visa application, which advised that the applicant could provide additional information relating to his claims, as well as information on how to provide this. The Department’s letter also advised the applicant that the Department could make a decision on his visa application without providing another opportunity for him to present further information.
The delegate found that the applicant’s claim that he will face natural disasters if he returns to Vanuatu, does not relate to any of the reasons in s.5J(1)(a) of the Act and was not satisfied that the applicant has a well-founded fear of persecution for any of the reasons in that provision of the Act, and is therefore not a refugee as defined in s.5H(1) of the Act. The delegate also found that, for the purposes of considering whether the applicant is owed complementary protection, there is no evidence that the natural disasters he claims to fear would involve a perpetrator. The delegate was not satisfied that the harm the applicant claims would meet the definition of ‘significant harm’ under s.36(2A) of the Act, and therefore the delegate was not satisfied the applicant is owed protection under s.36(2)(a) or 36(2)(aa) of the Act.
Evidence at the hearing regarding preparation and contents of application
At the hearing, the applicant gave evidence that he remembered making his Protection visa application, which he stated he made with the help of a lawyer. He told the Tribunal that he was not aware of the contents of his application form and that the contents of the form were not read back to him. He then stated that he is unsure whether the person was a lawyer or an agent and whether they were registered. The applicant stated that he was coming to the end of his visa and was in a rush because his parents died last year, so he went on to find the ’lawyer’ to assist him with the visa application. He stated that he has concerns because his family owns land in Vanuatu and his family members have been dying, which he believes is connected to conflict regarding a land dispute. He stated that some of his uncles passed away and both of his parents died last year, and this leaves only him and [a sibling].
Evidence regarding the applicant’s background and travel
The applicant confirmed that he is a citizen of Vanuatu. He gave evidence that apart from Australia, he has travelled to [Country 1], where he studied and lived for more than 17 years. He confirmed that he is not a citizen of [Country 1] or any other country besides Vanuatu, and that to return to [Country 1] he would need to apply for a visa.
The applicant confirmed that he is Indigenous to Vanuatu and his religion is [Denomination 1]. He stated that he was born in [Island 1] and that prior to arriving in Australia, he had been living in Vanuatu for more than 10 years, living in Port Vila.
As to his family members, the applicant stated that his parents both passed away in 2023. He stated that he believes they died as a result of witchcraft. He explained that the Vanuatu government was about to grant title to land and ‘they just died’, and this has been happening to other family members. The applicant stated that he has [a] brother, who lives on the island of [Island 2]. He stated that his [brother] is not on [Island 1] as he is afraid of witchcraft. He stated that his parents had been living on [Island 1], which is his home island. He stated that he is from [Location 1], which is [near] [Island 1].
The applicant stated that he has been in a relationship with a partner in Vanuatu for about seven years, and that they have a [child] who is [age] years old. He stated that his partner was living at his house in Port Vila, but after the cyclone which struck last year, his property was destroyed, and she went back to live with her family in Port Vila. He stated that he has [relative] who is currently looking after his property.
The applicant stated that he completed ‘[grade]’ of high school in [Country 1]. He subsequently completed some certificate courses in [specified] studies in Vanuatu. When he completed these courses, he worked for a [business 1] for eight years in a sales marketing role, then in [Country 1] he studied and did what he described as ‘holiday jobs’. He stated that he did work there as [specified roles].
The applicant confirmed that he arrived in Australia [in] June 2021 holding a GD-403 Temporary Work (International Relations) visa. He was then granted a GG-408 Temporary Activity visa, and he stated that he applied for the Protection visa when that visa was due to expire.
When asked why there was a delay of approximately two-and-a-half years in applying for the Protection visa after he arrived in Australia, the applicant stated that when he arrived in 2021, everything was okay. As the years went by, and he heard that family members were dying, he became afraid to return to Vanuatu. He also stated that his temporary visa was about to expire, and the temporary visa only allowed him to do [specified] work, whereas he wants to stay in Australia to do [occupation 1] work.
Applicant’s claims for protection and reasons for wishing to remain in Australia
When asked what his reasons were for claiming protection, the applicant stated that he wants to stay in Australia because he has been hearing that family members have been dying as a result of a land dispute. He stated that he would like to bring his partner and family to Australia so they can be safe.
When asked if there were any other reasons why he is claiming protection, he stated that the other reason is so he wishes to complete outstanding debt payments he has for his land, which he wishes to complete before he goes back to Vanuatu. He stated that he missed some payments, and the amount has accumulated to about $[amount].
The Tribunal put to the applicant that his written claims made in his visa application were about a fear of returning to Vanuatu because of recurring natural disasters. The applicant responded that the lawyer who prepared his application put that claim in, but he is instead making the claims which he raised with the Tribunal at the hearing. The applicant stated that it is true that Vanuatu is affected by natural disasters, and they occur every year. The Tribunal put to the applicant that natural disasters such as cyclones effect the population of Vanuatu as a whole, as there is no element of persecution, and this would not be a basis for either meeting the refugee criterion or complementary protection. The applicant responded that the only claim he wishes to make is the one he raised verbally at the hearing, that he is afraid to return to the island he is from, as he fears he will be attacked.
In light of the disavowal of his original claims, I asked the applicant to confirm that I had properly understood his evidence. The applicant confirmed that he was not claiming a fear of returning to Vanuatu on the basis of natural disasters, and that his only claim was in relation to a fear of sorcery. The Tribunal confirmed with the applicant that it light of his disavowal of his original claims, it would not question him further or assess him in relation to those claims. The applicant confirmed this.
Claims regarding fear of witchcraft
The applicant gave evidence that his family is involved in a land dispute regarding the traditional ownership of land. He claimed that his family is part of the [Tribe 1] from [Island 1]. He stated that his family has enemies, who are also part of this tribe, and who want the land. He stated that his family’s enemies have a list of names of all of his family members, and their enemies are using witchcraft to harm them. He can see that the people who are on the list are passing away.
When questioned about the land dispute, the applicant stated that his family has gone through the court system in Vanuatu in order to seek recognition that they are the owners of the land, and it is clear that the land belongs to them. He stated that the Vanuatuan government is about to grant title of the land to his family, and his family’s enemies are aware of this, which is why members of his family keep dying. The applicant stated that the land is owned by [his named] family and passed down through the family line. When asked whether he has any evidence of this land ownership or the land dispute, the applicant stated that a family member in Vanuatu has information, and that he will provide supporting evidence to the Tribunal.

When asked whether he experienced any harm in Vanuatu, the applicant gave no evidence that he was personally the subject of harm through witchcraft, but that other members of his family have been attacked with witchcraft. He stated that he experienced it through his grandparents, who went out of their house, fell and died. He stated that this also happened to his parents. He stated that they went outside to use the bathroom, fell and died. He stated that his father passed away [in] January 2023 and his mother passed away in September 2023. He stated that all of his father’s brothers have died since 2021, with two dying each year, and that only [one] uncle is still alive. When asked whether he has any death certificates to support his claims about the timing of these deaths, the applicant stated he will make some enquiries in Vanuatu and provide copies.
The Tribunal questioned how the applicant is aware that there is a list of members of his family, and how he knows that his family’s enemies have such a list which they are working through. The applicant stated that there was [an occupation 1], who misplaced the list of members of his family. He stated that the enemies found this list, including all the names on it. He stated that people who are named in this list are dying, one after another, and eventually they reached his parents. When asked whether he has a copy of this list of names, the applicant stated that he has a copy in his telephone and he will provide it to the Tribunal.
When asked details about who he claims is the enemy, the applicant stated that he does not know the name of the person who obtained the list from his family, but they gave it to [Mr A] and to [his] family. He stated that [Mr A] passed away last year. As to who he believes is responsible for conducting the witchcraft, the applicant stated that they can be found in the [specified part] of [Island 1]. He stated that they perform a ritual which involves the drinking of cava, after which people die.
As to what he believes will happen if he returns to Vanuatu, the applicant stated that he and his brother are on the list of names, and that if he returns to Vanuatu, [Mr A’s] family will arrange for people to attack him with witchcraft.
When asked whether he has any evidence to support his claim that people have been practising or using witchcraft to kill members of his family, the applicant stated that all of the people in [Island 1] know the situation and everyone there agrees it is happening, and that it is not safe to go there. The applicant then stated that it would be risky for him to go to [Island 1].
The Tribunal put to the applicant whether he could avoid the harm he fears by avoiding [Island 1] and staying on another island, such as staying in Port Vila where he previously lived, or on [Island 2] where his brother lives. The applicant responded that living in Port Vila or [Island 2] would still be living in Vanuatu, and that people would know where he is. He stated that while his brother lives on [Island 2], he needs to receive traditional protection on a daily basis, and this is too risky. The Tribunal questioned why the witchcraft would not affect him in Australia, but would affect him in Port Vila. The applicant stated that Australia is too far from Vanuatu, and stated that maybe the witchcraft would not be able to travel this far. He stated that even if you live on another island in Vanuatu, people will do their best to find and catch you. The applicant stated that elderly people use witchcraft in Vanuatu if they are jealous, including to take away people’s lives.
The Tribunal discussed country information with the applicant, including information which indicates that Vanuatu’s Penal Code prohibits the practice of witchcraft or sorcery with the intent of causing harm or detriment to another person. The Tribunal questioned whether he could seek protection from the authorities in Vanuatu. The applicant stated that he is not aware of this law, but that a lot of people practice witchcraft and it is ‘becoming huge’.
The applicant confirmed that there were no other matters he wished to raise regarding his claim regarding witchcraft.
After the Tribunal raised a number of potential concerns with the applicant regarding this claim and the lack of supporting evidence, the applicant conceded that he wishes to return to Vanuatu sometime in the future, and that he wishes to remain in Australia to pay off his debts. He asked the Tribunal to give him some time to pay off his debts. He dtated that he will not return to [Island 1], and that he will have a safe place to live in Port Vila.
Claims regarding outstanding debt
The applicant stated that he currently has a debt of about $[amount] in relation to the land he owns in Vanuatu. In addition, he has to pay for school fees. He stated that he wants to work in Australia so he can earn money to pay of this debt and so he can fix damage to his house in Port Vila. The Tribunal discussed the photographs which the applicant provided, which apart from a photograph of his parents’ graves, are photographs of the damage to his property caused by cyclones.
The Tribunal put to the applicant that this does not appear to be a reason why he would be a refugee or be owed complementary protection, as there is no evidence that he would be persecuted or experience any harm as a result of these debts on return to Vanuatu. The applicant responded that he wants to work and earn money in Australia so he can pay off the debts he has. He stated it is not easy to earn the same money in Vanuatu. While jobs are available, they are not good jobs. The applicant stated that he has been sent notices in relation to the debts, and if he does not pay them, his land will be repossessed. The Tribunal put to the applicant that there is no evidence to indicate he would be unable to subsist on return to Vanuatu, or that he would experience a risk of serious harm or significant harm as a result of his debts. The applicant responded that he understood what the Tribunal had put to him, though his outstanding debt of $[amount] is a big worry to him and he has already received a notice in relation to the debt.
Extension of time to provide additional documents
The applicant requested additional time to provide documents to support his claims. The Tribunal granted the applicant 21 days to provide additional information, and indicated that if any documents he wishes to provide to the Tribunal are in a language other than English, he would need to provide a certified English translation of the documents. On 24 March 2024, the applicant provided the Tribunal with the documents set out at paragraphs 14 and 15 of these reasons.
REASONS AND FINDINGS
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that the applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant him or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for her or him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)
In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
I accept that the applicant is a national of Vanuatu and not a national or citizen of any other country.
Does the applicant have a well-founded fear of persecution if he returns to Vanuatu?
The applicant claims that his family is in the process of gaining recognition of their traditional ownership of land in [Island 1], and that the Vanuatu government is about to grant them title to the land. He claims that his family is in an ongoing dispute with members of [Mr A’s] family, in particular with [Mr A], and that this family has been using witchcraft, or arranging for others to use witchcraft, to kill the members of his family, and that they have been working through a list containing the names of his family members. He claims that his grandparents, parents and all of his [uncles]
Following the hearing, the applicant provided the Tribunal with copies of court documents issued by the [Court 1], including an interim order dated [in] September 2004, which is in Bislama, in the matter of [Mr A] v [the applicant’s family] & [Family B], as well as a decision from the [Court 1], dated [in] April 2014, in the matter of [Mr A] v [the applicant’s family]. The decision of [that day in] April 2014 states that [in] September 2014, the claimant (namely, [Mr A]), made an application for an interim order, which the Court dealt with that day by making an interim order prohibiting both parties from doing new developments on [Location 2] customary land until the Land Tribunal determines customary ownership of the land. It states that the interim order did not provide a time by when [Mr A] was to file his claim, however, since [September] 2014, he has failed or neglected to file a land claim. The Court’s decision notes that during the hearing of that case, [Mr A] conceded that he continues to carry out development on the land despite the interim court order, that he has not filed a land claim, and that he has not been declared by a tribunal to be the paramount chief of [Tribe 1] nasara or declared as customary owner of [Location 2] customary land. The decision also states that the Land Tribunal had no record of any claim lodged over [Location 2] customary land by [Mr A] since 2004 and that he failed to file a Court claim within a reasonable time. The Court made an order dismissing the interim order dated [in] September 2004. The applicant also provided two maps or plans which are blurred and illegible.
While the applicant has not provided any information in support of his claim that a land dispute has continued in respect of this land since [Court 1’s] decision in 2014, I note the judgment of the [Court 2] in [case title][1] (case [number] of 2020) [in] July 2021, in which the [Court 2] notes an ongoing dispute between [Mr A’s family] of [Island 1] and [the applicant’s family], [Family B], [and Family C] of [Location 1] [near Island 1]. The [Court 2] concluded in its decision that customary ownership of [Location 2] land and [other specified] land had yet to be decided by the [Island 1] [Tribunal]. On this basis, the [Court 2] refused to grant a restraining order to the claimant ([Mr A’s family]) to prevent the defendants and their families from building or gardening on the disputed land. Accordingly, the Tribunal accepts that the applicant’s family, [named], has an ongoing dispute with the [Mr A’s] family in a [relevant] tribunal in Vanuatu. I confirm for the sake of clarity that I make no adverse findings regarding the information contained in [Court 2’s] judgment, which supports the applicant’s claim regarding his family being involved in an ongoing land dispute.
[1] [Source deleted.].
The applicant has provided no compelling evidence that he is involved in such a land dispute. He has lived in Australia since arriving here in June 2021. On his own evidence, prior to that he lived in Port Vila for more than 10 years, and that prior to that he was living in [Country 1]. However, I accept that the applicant’s parents continued to reside on [Island 1] prior to the deaths and accept that given his family lineage, the applicant may be included in the land claim, and therefore may also be associated with the ongoing land dispute.
I note in passing that the applicant has provided a one-page extract of a land title, which is in [Language 1] and appears to have been issued by a land registry in [Country 1]. The applicant has not explained the relevance of this document to his claims and a certified English translation has not been provided. I therefore give this document no weight, but note that I have already accepted the applicant’s family is involved in a land dispute in Vanuatu.
I now turn to the applicant’s claim that he fears he will be harmed or killed by the use of witchcraft as a result of his family’s involvement in the land claim and land dispute. Forsyth argues that witchcraft or sorcery has traditionally been a salient feature of Melanesian society, and despite increasing modernisation and conversion to Christianity, beliefs in sorcery continue not be widely held.[2] Erikson and Rio report that in recent years there have been an increase in beatings, burnings or killings of witches, which they argue may be related to Pentecostal beliefs that align witchcraft with evil, and that in urban areas of Vanuatu, there is activity by Pentecostal churches which aims to cleanse these areas of the impact of witchcraft.[3] Writing in 2016, Taylor reports that in the main towns of Port Vila and Luganville, people have rallied behind Christian leaders in mounting periodic crusades against witchcraft.[4]
[2] Forsyth, Miranda (2006), ‘Sorcery and the Criminal Law in Vanuatu’, LAWASIA Journal, available at Eriksen, Annelin & Rio, Knut (2017), ‘Demons, Devils and Witches in Pentecostal Port Vila: On Changing Cosmologies of Evil in Melanesia’, Pentecostalism and Witchcraft.
[4] Taylor, John Patrick (2016), ‘Two Baskets Worn At Once: Christianity, Sorcery and Sacred Power in Vanuatu’, in Christianity, Conflict and Renewal in Australia and the Pacific, eds Fiona Magowan and Carolyn Schwarz. Brill: Leiden and Boston.
Section 151 of the Penal Code Act 1981 of Vanuatu makes it an offence for persons to practice witchcraft or sorcery with the intent of causing detriment or harm to another person, with a penalty of two years imprisonment.[5]
[5] See Paterson, D. E. (1986), ‘Vanuatu Penal Code’, QUT Law Review, v. 2, n. 2, pp.119-127, December 1986, available at Last accessed 10 April 2024. A copy of the consolidated Penal Code (Cap 135) is also available on the Vanuatu Financial Intelligence Unit’s website: >
A 2017 article from the Vanuatu Daily Post reports that over 500 people on Akhamb Island, off South Malekula, were involved in a reconciliation ceremony over the hanging deaths of two men, carried out by the community over claims of witchcraft in October 2014.[6] The reconciliation ceremony was in line with an order from the Chief Justice who heard the case. The two men who were killed had been accused by a prayer group of killing 35 people on the island using sorcery. All persons who were arrested over the crime have been released, apart from five men who were found guilty of direct involvement in the killings, and who will be freed after 15 years.
[6] ‘Reconciliation over ‘witchcraft’ killings’, Daily Post, 10 November 2017.
In a 2006 article, Forsyth notes that in Vanuatu today, sorcery is blamed for most unexpected deaths and for illnesses that appear to be random, as well as for misfortunes and natural disasters.[7] She notes that the lack of facilities to perform autopsies and the lack of understanding of modern principles of medicine contribute to such beliefs, with the believers having no other way of explaining such deaths. Accusations of witchcraft may also be made by people with ulterior motives, including as a result of envy or jealousy.[8]
[7] Forsyth, Miranda (2006), ‘Sorcery and the Criminal Law in Vanuatu’, LAWASIA Journal, available at ‘Vanuatu urged to act over sorcery claims’, RNZ, 27 November 2014, available at >
Given the abundant information about the practice of sorcery in Vanuatu, including its regulation within the penal code and evidence of conflicts resulting from accusations of sorcery, I accept that it continues to be an aspect of the culture of Vanuatu.
However, on the information and evidence before the Tribunal, I do not accept that there is a real chance or a real risk that the applicant will suffer serious harm or significant harm as a result of his claims regarding sorcery on return to Vanuatu. In considering the regulation of witchcraft or sorcery practices across the world, including with specific reference to Vanuatu, Forsyth notes the inherent difficulties in assessing evidence regarding accusations of witchcraft.[9] Amongst various concerns, Forsyth refers to a 2011 Bar Human Rights Commission report which points out that it is difficult to see how the prosecution in criminal cases could discharge its evidentiary burden without compromising the basic requirements of fairness and justice when evidence of sorcery is likely to be insubstantial and invisible. As I have already noted, the concept of onus of proof is not appropriate to administrative inquiries and decision-making, nor is any burden of proof under criminal jurisdictions relevant to the Tribunal’s decision, but the argument that evidence of sorcery is likely to be insubstantial and invisible is nonetheless relevant and apparent in the current case.
[9] Forsyth, Miranda (2016), ‘The Regulation of Witchcraft and Sorcery Practices and Beliefs’. Annual Review of Law and Social Science. 12.10.1146/annurev-lawsocsci-110615-084600.
In support of his claims regarding harm experienced as a result of witchcraft, the applicant has provided a photograph of his parents’ graves, as well as a handwritten list containing [number] names, including that of the applicant, and six letters from his [relative], [Pastor A], which state the dates of death of members of his family, which include the deaths of the applicant’s parents in 2023, of his grandfather in 2022, of his eldest brother in 2021 and of two ‘little dads’ or uncles in 2021 and 2022. While I am prepared to accept that these deaths may all have occurred during the period from 2021 to 2023, the applicant has not provided any death certificates or medical reports to indicate the causes of each of these deaths, nor has he provided any other evidence to support his claim that they were the result of witchcraft rather than the result of medical conditions, natural causes or other incidents. The applicant’s evidence with respect to each of these deaths was very general and vague and did not contain sufficient detail to support the applicant’s claims. The Tribunal put to the applicant at the hearing that death is a natural occurrence, and that in the absence of medical evidence or other compelling evidence of the use of witchcraft, it would have difficulty accepting his claims, particularly regarding the deaths of relatives from the generation above him (the applicant is currently aged [age]). I find the letters from the applicant’s [relative] provide little support for his claims as all they provide is the date of death of each person.
I also place little weight on the handwritten list of names provided by the applicant. The applicant’s oral evidence regarding the origin of this list was somewhat vague and confused. The applicant has also provided insufficient information as to how he came to have this copy of the list of names, nor why his claimed enemies would rely on a handwritten list of names when his family is involved in a land dispute within the court system, which would bring with it more official documents than the handwritten list of names he has provided. The applicant has also not explained who the individuals on the list are, nor why the names of certain relatives who he claims were killed as a result of being on this list, do not appear to be listed. For instance, the letters from [Pastor A] indicate that the applicant’s [brother] was called [Brother A], his mother was [Mother A] and one of his uncles was named [Uncle A]. These names do not appear to be on the list of [number] names provided by the applicant, and therefore this does not support his claim that someone is using this list to systematically kill members of his family.

The Tribunal finds that there is no credible evidence that the applicant has been harmed in the past as a result of witchcraft or in any way because of involvement in a land dispute. I also do not accept that there is any credible or convincing evidence that anyone is using witchcraft to harm or kill members of the applicant’s family because of their involvement in a land dispute or for of any other reason. The Tribunal considers the applicant’s evidence with respect to the use of witchcraft to harm or kill members of his family is, at best, speculative. I do accept that the applicant has been threatened or harmed in any way because of his involvement in a land dispute. I also do not accept that there is any convincing evidence that the applicant will be harmed on the basis of his involvement in a land dispute or on the basis of witchcraft on return to Vanuatu. I consider that the applicant could return to Port Vila, where on his own evidence, he lived for approximately 10 years without being harmed.
These findings are further supported by the applicant’s oral evidence that he intends to return to Port Vila after he earns sufficient money to pay off his debts, as well as his evidence that he considers Port Vila to be a safe place away from [Island 1]. I find that the applicant has no subjective fear of returning to his home in Port Vila because of witchcraft or for any other reason, and find that his claims regarding witchcraft have been greatly exaggerated to strengthen his claims for protection.
I accept that the applicant would like to remain in Australia in order to maintain his current work as [an occupation 1] and to earn money to pay off his debt in Vanuatu and to pay for his son’s school fees. The applicant variously gave evidence that his debt in Vanuatu is the equivalent of [amount range]. I accept that the applicant has a debt of about AUD $[amount], and that he wishes to pay it off. I also find that the applicant has worked in both Vanuatu and [Country 1] in a variety of roles, including roles involving [specified roles]. While I accept the applicant’s evidence that it may be difficult to find jobs in Vanuatu where he can earn what he can in Australia, I do not accept that this would be a source of serious or significant harm for him upon return to Vanuatu.
The applicant confirmed at the hearing that he disavows his written claims regarding natural disasters and instead relied on his claims about witchcraft. I have therefore not assessed this claim in detail but note in passing that such a claim would in any case not meet the requirements for the protection visa given the applicant has not identified an agent who would be responsible for persecution, and any harm as a result of natural disasters would apply to the population of Vanuatu as a whole, rather than be the result of any targeted harm.
In view of the above findings, the Tribunal is not satisfied that the applicant faces a real chance of serious harm because of his religion, race, nationality, political opinion, or membership of a particular social group in Vanuatu. Having considered all of the applicant’s claims, individually and cumulatively, and all of the evidence, I find there is no real chance that the applicant will suffer serious harm amounting to persecution from anyone for any reason, on return to Vanuatu, now or in the reasonably foreseeable future.
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).
Does Australia have protection obligations to the applicant under the complementary protection criterion?
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).
I am required to consider if the applicant will suffer significant harm on his return to Vanuatu. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
As noted above, I have not accepted the applicant’s claim that persons involved in the land dispute with his family are using witchcraft to kill or harm members of his family or that they would have any interest in using witchcraft to harm the applicant in any way upon return to Vanuatu. I consider that the applicant’s evidence in this regard to at best be speculation.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, the Tribunal is not satisfied that there is a real risk that he will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to torture or cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Vanuatu now or in the reasonably foreseeable future.
Accordingly, the Tribunal is not satisfied that that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vanuatu, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicants do not satisfy the criterion in s.36(2)(aa) of the Act.
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.
Frank Russo
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 3634

17 May 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice

Remedies