2400530 (Refugee)
[2024] AATA 1298
•1 March 2024
2400530 (Refugee) [2024] AATA 1298 (1 March 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2400530
COUNTRY OF REFERENCE: Vanuatu
MEMBER:Khanh Hoang
DATE:1 March 2024
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 01 March 2024 at 11:03am
CATCHWORDS
REFUGEE – protection visa – Vanuatu – borrowed money from unlicenced credit company to pay agent for opportunity to work in Australia – followed, beaten and threatened – multiple arrivals and returns – application prepared by another person – at hearing, claims acknowledged not to be true – intention to remain, work and support children – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), (2B)(b), 5LA, 65
Migration Regulation 1994 (Cth), Schedule 2CASE
Chan v MIEA (1989) 169 CLR 379Any 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 3 January 2024 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 3 November 2023.
The applicant appeared before the Tribunal on 23 February 2024 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in the Bislama and English languages.
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under either the refugee or complementary protection criteria. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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.
The applicant’s identity and country of reference
The applicant provided the Tribunal with a copy of her most recent passport. Having cited that passport, and in the absence of any other evidence to the contrary, I find Vanuatu to be the applicant’s country of nationality and her receiving country for the purposes of refugee and complementary protection assessments.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, I have 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
Evidence before the Department
In her protection visa application, the applicant claimed that she worked as [an Occupation] in a small [Workplace 1] and was promised an opportunity to work in Australia by an agent. She did not have money and she borrowed $8,000 from an unlicensed credit company. The applicant paid the agent but after a week the agent was not contactable. She felt cheated by the agent.
The applicant claimed that the money was ‘rescued’, however, she was still required to pay the unlicensed money lender. She claimed her life was in danger as she was followed, beaten, and threatened that she will be killed if she did not repay all the money. The applicant did not go to the police because she claimed it will take a long time for the case to be investigated. She stated she will be harmed by the group if she were to report to the police.
The applicant received an offer from a sponsor to come to Australia and work on a farm. She chose Australia because she feels safe and protected here. The applicant claimed that if she is returned to Vanuatu, the authorities will not protect her because they blame her for trusting a cheating agent.
The delegate refused the grant of the protection visa as they were satisfied on the available country information that the applicant could obtain effective state protection against persecution or serious harm, as defined in s 5LA. The delegate was also satisfied that, for the purposes of complementary protection, the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm as provided for in s36(2B)(b). Accordingly, the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations.
Evidence before the Tribunal
The applicant’s background
The applicant was born in [Town 1]. She identifies herself as being religiously Christian. Her family comprises of her parents, and her two younger brothers and sisters. The applicant has never been married. She has [children] arising from [de-facto relationships]. Her children are aged between [Age] and [Age] and they all live in a house in [Town 2] owned by the applicant.
The applicant was educated to secondary school level. She gave birth to her first child when she was in Year [Number]. She had a second child to the same person, who then left the applicant after that child was born. She stated that the father of her first two children has another wife now and she is trying her best to provide for her children. After she gave birth to her [Child] some 9 years later, she wanted to work overseas and provide for her children and to put them through good schools.
The applicant stated that she has been working in various fruit picking schemes for over 22 years, falling in and out of work. She first came to Australia to work on a farm in 2000 and stayed here for a year. She stated that in 2015, she was sent to Australia by the Vanuatu Department of Immigration as they were looking for experienced farm workers in New South Wales. She went back and forth from Australia to Vanuatu until the COVID-19 pandemic when her visa was extended onshore. She has been mainly engaged in fruit picking on farms in Australia. When she went back to Vanuatu, she used the money she earned in Australia to pay for her children’s school fees, to give them a good education and a good life.
The applicant’s claims
As the applicant was unrepresented in respect of the review, at the start of the hearing, I explained to her the criteria for a protection visa. I informed her that to be granted a protection visa on refugee grounds, the Tribunal must be satisfied that she faces a real chance of suffering serious harm for reasons of race, religion, nationality, membership of a particular social group or political opinion. I explained to her the requirements for complementary protection, which requires that the Tribunal be satisfied of a real risk that she will suffer ‘significant harm’ as defined by the Act if returned to Vanuatu. The applicant indicated that she understood.
I asked the applicant why she had applied for protection. The applicant stated she was jealous that her friends had good visas that allowed them to stay here permanently, and she asked herself why she does not have a visa like that. She wanted to remain in Australia to finish her plan, which was to work and to support her [children] to finish their education.
I also asked the applicant how her protection visa application was prepared. She stated that someone had assisted her with her application. She had never met this person, and everything was conducted via email. The person who assisted her only asked her whether she wanted a protection visa and for her biographical details. After she provided her information, the applicant was informed that her protection application had been processed. She did not know what was in her protection visa application. When I referred her to the claims made in her protection visa application related to a debt and a fear of harm from the creditors, she stated that she did not obtain money from anyone. She confirmed that the claims in her protection visa application were not true.
The applicant did not make any claims to fear future harm back in Vanuatu. She reiterated that she wanted to remain in Australia to work and provide for her children. I explained to her again the requirements for a protection visa and stated that based on the information she had provided, it appeared unlikely that she meets the criteria for a protection visa. The applicant asked what her migration options were, and I advised her that the Tribunal could not give her immigration advice.
In support of her claims, she provided a reference letter from her current employer. This reference letter stated that she has been employed since February 2023, and the employer has permanent work for her and is willing to sponsor her.
FINDINGS AND REASONS
Refugee findings
Based on the evidence the applicant gave at hearing, I find that the claims made in her protection visa application are not true. I am satisfied that the applicant does not rely on any claims made therein and does not fear returning to Vanuatu for any of those reasons. As such, I have not considered those claims any further.
I find that the applicant left Vanuatu in search of work opportunities to support her children through school. I accept that she wishes to remain in Australia to earn money for the purposes of supporting her children. I note that the applicant is currently employed, and has ongoing employment opportunities in Australia, however, this is not relevant to my assessment of her protection claims. As discussed with the applicant at hearing, I must assess whether she meets the criteria for the grant of a protection visa.
To be eligible for the grant of a protection visa as a refugee, the applicant must establish that she has a well-founded fear of persecution in Vanuatu. For a fear to be well-founded, a person must fear persecution for one or more of the reasons mentioned in s 5J(1)(a) (race, religion, nationality, membership of a particular social group or political opinion). Further, there must be a ‘real chance’ that if she returned to Vanuatu, she would be persecuted for one or more of those reasons. A ‘real chance’ is a substantial chance, as distinct from a remote or far-fetched possibility, even if it is below 50 per cent: Chan v MIEA (1989) 169 CLR 379.
The applicant did not advance any claims that she left Vanuatu because of any fear of persecution. Nor did she advance any claims that if returned to Vanuatu, now or in the reasonably foreseeable future, that she will be at risk of serious harm for any reason related to race, religion, nationality, membership of a particular social group or political opinion. Accordingly, I find that the applicant does not fear persecution for any of the reasons in s5J(1)(a). It follows that she does not have a well-founded fear of persecution, and she is not a refugee for the purposes of s 5H(1).
I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection findings
Having found that the applicant is not a refugee, I will now consider whether she meets the complementary protection criterion under s 36(2)(aa). That is, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Vanuatu, there is a real risk that she will suffer significant harm.
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). 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.
The applicant has not claimed, nor is there any information to suggest, that she will be subjected to the arbitrary deprivation of life, the death penalty, or torture if returned to Vanuatu. In respect of the other forms of ‘significant harm’, I note that their definitions require an act or omission by which severe pain or suffering, or extreme humiliation is intended to be inflicted upon the applicant by another person.
I have considered the personal circumstances of the applicant and I accept that, if returned to Vanuatu, she may not be able to earn as much money to support her children and their education as she could in Australia. However, this would be a result of the economic and employment conditions in that country, rather than any intentional act or omission that would result in ‘significant harm’ being inflicted upon the applicant. There is no information before me to indicate that there will be a perpetrator of any harm to the applicant and no actual, subjective state of mind, meaning there will be no intention to inflict the requisite level of pain or suffering (for cruel or inhuman treatment or punishment) or to cause extreme humiliation (for degrading treatment or punishment).
For these reasons, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Vanuatu, there is a real risk that the applicant will suffer significant harm.
CONCLUSION
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.
Khanh Hoang
MemberATTACHMENT - 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.
…
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Immigration
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Administrative Law
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Judicial Review
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Procedural Fairness
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