2400709 (Refugee)

[2024] AATA 1351

2400709 (Refugee) [2024] AATA 1351 (26 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2400709

COUNTRY OF REFERENCE:                   Vanuatu

MEMBER:Andrew Verduci

DATE:26 March 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 26 March 2024 at 1:22pm

CATCHWORDS

REFUGEE – Protection Visa – Vanuatu – recurring natural disasters – a land dispute with his uncle – delay in applying for a Protection visa – not satisfied that the applicant has a well-founded fear of persecution – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 56, 423, 499

Migration Regulations 1994, Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant is a citizen of Vanuatu who arrived in Australia on [date] December 2022 on a visa in the Seasonal Worker Program stream. He lodged an application for a Protection visa on 25 October 2023 which was refused on 10 January 2024 under s 65 of the Migration Act 1958 (Cth) (the Act). This is a review in relation to that decision.

2. In his written Protection visa application, the applicant claimed to fear harm for the following reasons which I have summarised:

   ·His life in Vanuatu has been impacted by recurring natural disasters such as cyclones, earthquakes and volcanic eruptions. Vanuatu lacks the technical infrastructure to effectively shield him from the devasting impact of natural disasters and is ill-equipped to respond swiftly and comprehensively to unpredictable and destructive forces of nature.

   ·His safety and well-being are of utmost importance and he has been exploring options for a more stable and secure future. He is considering applying for a seasonal work visa in Australia to provide him with a safer environment and opportunities for employment and economic stability. He would appreciate guidance on the steps involved, eligibility criteria and any specific job sectors or regions where seasonal work opportunities are available.

   ·Moving is difficult because his family and him are rooted in ‘this island’. Moving to another island presents the risks of natural disasters. He is torn between the desire for safety and need to stay connected to his family and job.

   ·The thought of going back to a location where he will be constantly exposed to the ever-looming threat of natural disasters fill him with a profound sense of reluctance

3. The delegate found that the applicant did not satisfy the criteria in s 36(2) of the Act.

4. He applied for a review of that decision on 18 January 2024.

5. The applicant emailed the Tribunal on multiple occasions. Some of his emails contained attachments that could not be opened by the Tribunal and other emails contained no content or attachments. The applicant was advised each time an email was received that had no content, or content that could be opened, and was asked to re-submit any evidence or submissions that he wished to be considered.

6. The applicant appeared before me on 20 March 2024 to give evidence and present arguments. The hearing was conducted with the assistance of an interpreter in Bislama and the English languages.

   CRITERIA FOR A PROTECTION VISA

7. 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.

   Mandatory considerations

8. 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

9. At the hearing, the applicant claimed that he did not want to return to Vanuatu because of a land dispute with his uncle. His oral evidence to me was that he inherited a parcel of land in the highlands following his father’s death which his uncle forcibly took over. He sought help from the village chief to resolve the dispute but the village chief sided with his uncle and gave him the land. He worked the land for his uncle for around nine months without getting paid. After nine months’, he set fire to the village chief’s house. This angered people in the village because their witchcraft items which were stored in the village chief’s house were destroyed. He fled from the highlands and went to his sisters home in a neighbouring village before going to [City 1]. He lived in [City 1] for around two years but continually moved around to avoid the police who were looking for him because he set fire to the village chief’s house.

10. I do not accept that the applicant is involved in a land dispute with his uncle, that his uncle forcibly took over his land, that the village chief sided with his uncle in the dispute or that the applicant burnt down the village chief’s house in retaliation.

11. This is a new claim raised before me for the first time at his hearing. It was not raised before the primary decision under review was made or in any submission given prior to the hearing. The applicant acknowledged receiving a copy of the delegate’s decision which considered the claims that had been made, and I do not accept that the applicant did not understand that decision or think it necessary to give his true claims at any time prior to his hearing. Section 423A of the Act requires me to draw an inference adverse to this new claim unless I am satisfied there is a reasonable explanation for why it was not raised earlier. I am not satisfied there is a reasonable explanation.

12. The applicant said that he only realised his Seasonal Worker visa expired when told by his employer. He wanted another visa to continue working in Australia. He paid a friend’s friend to help him lodge a new visa application and gave him a copy of his passport and ‘travel’ documents. He didn’t ask what type of visa he was applying for, he didn’t tell this person any reasons he feared returning to Vanuatu and he didn’t see the visa application before it was made. He now understands he applied for, and was refused a Protection visa, but this was not the type of visa he had intended to apply for. He confirmed that the written claims made in his Protection visa application about fearing natural disasters were not his claims and that he expressly disavowed them. Accordingly, these claims are not considered any further.

13. I have considered this explanation, together with the applicant’s prior visa history. That is, that he applied for a Seasonal Worker visa whilst living in Vanuatu for the purpose of temporarily working in Australia. When asked what he intended to do once his temporary Seasonal Worker visa expired, he said he hoped to continue working in Australia before eventually returning to Vanuatu. I find that if the applicant was involved in a land dispute with his uncle in 2017, he would have intended to make an application for a Protection visa when in Australia and would have taken reasonable steps to ensure that his claims were accurately set out. He would not have intended to apply for another temporary work visa with the intention of returning to Vanuatu once he finished working. Accordingly, I am not satisfied he has given a reasonable explanation for not raising this new claim before the primary decision was made. I am therefore required to draw an inference unfavourable to the credibility of this new claim.

14. I also raised concerns with aspects of the applicant’s evidence during the hearing. If the applicant believed that his uncle was trying to acquire land that belonged to him, and he thought that the village chief was acting corruptly in siding with his uncle, I queried why he did not seek any help from the police or other authorities. His response to this was vague and I do not accept that he did not seek any help from police because they would only do whatever the village chief said.

15. If he disagreed with his uncle acquiring and using the land, I queried why he would continue working the land for his uncle for the next nine months. I do not accept his vague evidence that he was under the control of his uncle and unable to do anything about it. His oral evidence that he was happy to stay and work the land for this uncle if he got paid is also difficult to reconcile with his claim that the land belonged to him.

16. I expressed some concern about his evidence of waiting nine months’ and then deciding to set fire and burn down the village chief’s house. If the dispute was caused by his uncle’s unlawful acquisition of his land, I do not accept that the applicant would wait nine months’ and then set fire to the village chief’s house in an act of revenge. I do not accept that he targeted the village chief because he felt that the chief acted corruptly and should be held to a higher standard, but took no action against his uncle who acquired and profited from his former land.

17. I also have concerns about the applicant’s significant delay in leaving Vanuatu and even longer delay in applying for a Protection visa when in Australia. He claims to have fled the highlands after setting fire to the village chief’s house and moved to [City 1]. He lived there for around two years. When living in [City 1] he saw an advertisement looking for temporary workers to work in Australia. He saw this as an opportunity to work temporarily in Australia and earn a higher income than he was in Vanuatu. When his temporary work visa expired, it was his intention to apply for another work visa so that he could continue working. These actions and delay are not consistent with his claim to fear returning to Vanuatu because of a land dispute with his uncle, a statement that he agreed with during the hearing. I find that he left Vanuatu to earn money in Australia with the intention of buying land or a property in [City 1], but I do not accept that this is because of a dispute over land in the highlands with his uncle.

18. For the reasons above, I do not accept that the applicant has a land dispute with his uncle. It follows that I do not accept that the village chief sided with his uncle over a dispute or that he burnt down the chief’s house as an act of revenge. It follows that I do not accept that villagers are angry with him because their possessions were lost in the fire, or that police are looking for him because of the fire.

19. I find that the applicant does not face a real chance of serious harm, or a real risk of significant harm, now or in the reasonably foreseeable future for the reasons he has claimed.

20. Accordingly, I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) or (aa) of the Act. 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, and I find that he does not.

21. The applicant does not satisfy the criterion in s 36(2).

    DECISION

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

    Andrew Verduci
    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.

    …