2400378 (Refugee)

[2024] AATA 1349

2400378 (Refugee) [2024] AATA 1349 (2 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2400378

COUNTRY OF REFERENCE:                   Vanuatu

MEMBER:Angela Cranston

DATE:2 April 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 02 April 2024 at 12.46pm

CATCHWORDS
REFUGEE – protection visa – Vanuatu – fear of harm from money lenders/gangsters – threats made via family – claims withdrawn and new claims made at hearing – new partner in Australia pregnant – fear of harm from former partner, now in Australia, and witchcraft – economic conditions and capacity to subsist – work history – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5(1), 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65

Migration Regulations 1994 (Cth), 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 dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 4 January 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2.    The applicant who claims to be a citizen of Vanuatu, applied for the visa on 1 November 2023.

3.    In his protection visa application, the applicant stated the following:

I came from Vanuatu. My first arrived in Australia [in] February 2020, on a temporary activity visa 408.

During stay in Australia, I worked very hard to pay taxes and support my family at my country.

After a few months of working, I received phone calls from my family, some people were looking on me. They are a group gangster from Vanuatu. Before I come to Australia I make loans from loan sharks because my business was in trouble. Every month I pay the debt but still the loan shark say not enough. They say if I not pay twice the debt, they will harm me if they find me. I very afraid to back to my country, now I want ask protection from Australia. If I back to Vanuatu I will be killer by the group of gangsters in Vanuatu.

4.    The delegate refused to grant the visa and the applicant applied for review.

5.    The applicant appeared before the Tribunal on 21 March 2024 to give evidence and present arguments. The applicant stated he applied for a permanent visa and wanted to renew his visa and thought he applied for a 866 visa which he understood was a protection visa but did not know what that meant.

6.    The applicant stated he came to Australia in 2019, departed and returned in 2020 and applied for a protection visa in November 2023. He stated in 2022 he found a partner in Australia and his partner in Vanuatu heard about this and he was afraid of witchcraft which was still there and he did not know when it would strike.  When asked why he applied in November 2023 for a protection visa he stated he did not want to return because his new partner was pregnant, and he feared witchcraft. He also stated he was looking after his [Children] aged [Ages] who were in Vanuatu with his sister. His ex-partner was in Australia.  He said they last spoke in 2021, their relationship was over and she had another boyfriend.

7.    The applicant stated he could not return to Vanuatu because of witchcraft. The Tribunal put to him it needed to think about whether there was a real chance of serious harm or a real risk of significant harm as opposed to a mere possibility. He stated he was working in Vanuatu and all of his brothers were involved with [Sector] and were [Occupation 1]s and he had worked with them as [an Occupation 2] but wanted to step out from [Sector] which he did after 2015 to 2019. He also worked with his father and imported [Product] from 2010 to 2015.

8.    When asked if there were any other reasons he could not return, he stated if he was on the government side, he would get paid, but if he was on the other side he would not get paid. He also stated as [an Occupation 1], time and money was gone.

9.    He also stated there were no jobs in Vanuatu. The Tribunal put to him it sounded like previously he had made a living in Vanuatu.

1. When asked if there were any other reasons why he could not return, he stated inflation was 14% and rising.  He also said the hospital facilities were not good and they lacked facilities. He also stated he preferred to live in Australia. 

2. The Tribunal put to him that in his protection visa application he stated he was [an Occupation 3] in a [Workplace]. He agreed and said he [did Occupation 3 task] for his mother’s [Workplace] in 2008 to 2010. The Tribunal put to him it said he was [an Occupation 3] from 2015 to 2020 and he agreed. The Tribunal also put to him his visa application also said he had been [an Occupation 4] in Australia, and he agreed. When asked if he had borrowed money, he said that statement was false.    

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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).

4. 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.

5. 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

1. 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

1. The issue in this case is whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugee definition in Vanuatu and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of his being removed from Australia to Vanuatu, there is a real risk that he will suffer significant harm.

2. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

3. In his protection visa application, the applicant stated gangsters were looking for him because of loans from loan sharks and that his business was in trouble however he withdrew those claims at hearing and stated instead he was afraid of witchcraft, did not want to return to [Sector] because it took money and time and there were no jobs or facilities in Vanuatu and inflation had increased.

4. While the Tribunal accepts the applicant may believe in witchcraft, the Tribunal finds the applicant’s evidence he may be subjected to it is at best speculative and does not accept there is a real chance he will suffer serious harm because of witchcraft in the reasonably foreseeable future. While the Tribunal also accepts that jobs are scarce in Vanuatu, the applicant has previously lived and worked there in [Sector], importing [Product] and as [an Occupation 3] in a family [Workplace] and has also worked in Australia. The Tribunal considers that the applicant has skills and experience which would assist him to find work if he returns to Vanuatu. Accordingly, while the applicant may find it difficult to find work he likes, it does not accept there is a real chance he would not be able to subsist in Vanuatu where he has work skills, experience and family. Neither does it accept he will suffer any other serious harm.

5. The applicant has also stated there are no facilities in Vanuatu and inflation has increased. While the Tribunal accepts the standard of living in Vanuatu is not the standard of living in Australia, and that the applicant would prefer to live in Australia, Vanuatu’s lack of facilities and its inflation rate apply to the population as a whole and not just to the applicant for a refugee reason.

6. Accordingly, on the evidence before it, the Tribunal is not satisfied that the applicant has suffered persecution in the past, nor that he has a well-founded fear of persecution for reasons of race, religion, nationality, political opinion or because of his membership of a particular social group if he returns to Vanuatu in the foreseeable future.

7. 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).

8. 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). While the applicant has stated he fears harm because gangsters were looking for him because of loans from loan sharks and that his business was in trouble, he withdrew those claims at hearing and stated instead that he was afraid of witchcraft and did not want to return to [Sector] because it took money and time and there were no jobs or facilities in Vanuatu and inflation had increased.

9. While the Tribunal accepts the applicant may believe in witchcraft, the Tribunal finds the applicant’s evidence he may be subjected to it is at best speculative and does not accept there is a real risk he will suffer significant harm because of witchcraft in the reasonably foreseeable future. While the Tribunal also accepts jobs are scarce in Vanuatu, the applicant has previously lived and worked there in [Sector], importing [Product] and as [an Occupation 3] in a family [Workplace] and he has also worked in Australia and the Tribunal considers that the applicant has skills and experience which would assist him to find work if he returns to Vanuatu. Accordingly, while the applicant may find it difficult to find work he likes, it does not accept that there is a real risk he would not be able to subsist in Vanuatu where he has work skills, experience and family. Neither does it accept that there is a real risk he will suffer significant harm. 

10. Finally, the applicant stated that there are no facilities in Vanuatu and inflation has increased. While the Tribunal accepts that the standard of living in Vanuatu is not the standard of living in Australia, Vanuatu’s lack of facilities and inflation rate are not intended to cause the applicant harm and apply to the population as a whole.  The Tribunal is therefore not satisfied that there is a real risk that the applicant will suffer any harm, let alone significant harm as defined in ss.36(2A) and 5(1) of the Act.

11. Given this Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

12. 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

1. The Tribunal affirms the decision not to grant the applicant a protection visa.

Angela Cranston
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.

…

1. Protection visas – criteria provided for by this Act

…

1. 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.

…