2401502 (Refugee)

2401502 (Refugee) [2024] AATA 2392 (1 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2401502

COUNTRY OF REFERENCE: Vanuatu
MEMBER:Don Smyth
DATE:1 May 2024
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 01 May 2024 at 12:31pm
CATCHWORDS
REFUGEE – protection visa – Vanuatu – imputed political opinion – attacks by opposition supporters – physical assault – fear of killing – employment – economic conditions – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 276, 280, 426, 499
Migration Agents Regulations 1998, s 3H
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 dependants.
STATEMENT OF DECISION AND REASONS
BACKGROUND

The applicant claims to be a citizen of Vanuatu and has provided a copy of his Vanuatu passport. I accept that the applicant is a national of Vanuatu.
The applicant applied for a protection visa on 13 October 2023. On 8 January 2024, a delegate of the Minister for Home Affairs (the Minister) made a decision to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). This is a review of that decision.
SUMMARY OF CLAIMS AND EVIDENCE
Protection Visa Application
According to the information provided in the protection visa application, the applicant was born in Port Vila in Vanuatu in [specified year]. The application indicated that the applicant had lived at an address in [Village 1], Port Vila from [birth] to 14 May 2023. It indicated that the applicant had never married. With regard to employment, it indicated that he had not been employed but that he had been a subsistence farmer in Vanuatu and sold his crop in the markets. It stated that the applicant supported himself financially by selling the farm crop in the markets. It described the applicant’s ethnic group as ‘Vanuatu’ and religion as Seventh-Day Adventist.
The applicant made written claims in his protection visa application. With regard to the applicant’s reasons for leaving Vanuatu, the application stated:
I am seeking protection and refuge here in Australia because I want to be protected from the continuous attacks and harm from the opposition political candidate's supporters in Vanuatu.
I attacked several times and I almost got killed by them in Vanuatu I have always been assaulted, harmed, and tortured by the supporters of the opposition candidates in one of the assaults I almost died
With regard to whether the applicant had ever experienced harm in Vanuatu, the response was in the affirmative. With regard to the type of harm, the person/people responsible and why they harmed the applicant, the application stated:
I have been continuously assaulted, tortured, harmed, and almost killed in the process
I was continuously attacked and harmed by the opposition political candidate's supporters in Vanuatu after losing the elections.
I became the victim of the attacks and harm because I was the campaign manager for my winning candidate. I reported the losing candidate for corruption and rigging of elections which cost him his loss in the elections That is why his supporters want to kill me
With regard to why the applicant did not try to seek help, the application stated:
I did not seek help because the candidate had a network of people who kept an eye on my movements. I was always threatened that if I saw the authorities he would harm and kill me.
With regard to moving to another part of the country, the application stated:
I did once move to another province in Vanuatu namely [Province 1] for my safety and tried to hide there but I was located and found by the supporters of the losing candidate.
They assaulted, tortured, and harmed me again when they found me there trying to hide in that province because of this incident, I am very afraid to find another safe place to hide in Vanuatu
They will still locate me and will kill me and hide me because no one will protect me
With regard to what the applicant thought would happen if he returned to Vanuatu, the application stated:
I will be harmed and tortured as usual but this time to the the extreme of being killed, because I have the opposition candidate's image and reputation in politics, have been tarnished due to my exposing him.
He is very bitter and has been continuously threatening me through my friends who relay the messages to me
With regard to whether the applicant thought they would be harmed or mistreated, if they returned, the response was in the affirmative. With regard to the type of harm or mistreatment, the person/people who would be responsible and why they would harm or mistreat the applicant, the application stated:
I will be assaulted. harmed tortured and will be killed by the supporters of the losing candidate
With regard to why the authorities could not or would not protect the applicant, the application stated:
I will not be protected because though Vanuatu has the laws and organizations that were recently established.
It does not have the resources and safe places for me to go and hide and get protection. It also has not been effective in protecting people like me who are victims of such incidents and the success rate of protection of victims in Vanuatu has been very low or zero percentage.
That's why I have no confidence in the authorities or organisations even the protection laws in Vanuatu
With regard to relocation, the application stated:
I can not relocate to other parts of Vanuatu because I once moved to another province in Vanuatu namely [Province 1] for my safety and tried to hide there but I was located and found by the supporters of the losing candidate and I was assaulted, tortured, and harmed Because of this incident, I am very afraid to find another safe place to hide in VanuatuThey will still locate me and they might kill me and hide me because no one will protect me Vanuatu is a very small country and the laws and organizations can not protect me and guarantee my safety because their success rate is very low or zero
The applicant submitted a number of supporting documents. These included copies of his Vanuatu Drivers Licence and other identity documents, as well as his curriculum vitae.
On 8 January 2024, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa. The delegate was not satisfied that the applicant’s claims were genuine. The delegate was not satisfied that the applicant was a refugee as defined in s5H(1) of the Act. Nor was the delegate satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of being removed to Vanuatu, there was a real risk that the applicant would suffer significant harm as defined in s36(2A) of the Act.
Review Application
The applicant attached a copy of the delegate’s decision to the review application.
The applicant attended a Tribunal hearing on 24 April 2024. Although it is not necessary to set this out in full, I have had regard to all of the applicant’s evidence at the hearing. Aspects of this evidence are set out in my consideration, below.
It is also relevant to note a number of procedural points.
I note firstly that, on 4 March 2024, the Tribunal invited the applicant to attend a hearing on 26 March 2024. On 12 March 2024, the Tribunal received an ‘MR5’ form from the applicant seeking to appoint [Representative A] as his representative and authorised recipient. The form did not indicate that [Representative A] was a registered migration agent, an Australian lawyer, or his spouse, parent, child, brother or sister. It described him as a friend. The Tribunal also received a letter requesting that the hearing be adjourned for 60 days to allow the applicant to obtain legal advice. I note that the information in the appointment form did not suggest that [Representative A] fell into any of the categories of persons who are, pursuant to s 280 of the Act, able to provide ‘immigration assistance’ as defined in s 276 of the Act.
On 13 March 2024, an officer of the Tribunal contacted the applicant who confirmed that [Representative A] was a friend. The Tribunal officer discussed with the applicant that a legal practitioner or registered migration agent could act as a representative. The applicant was advised that he should make a request if he wished to seek a postponement. [Representative A] also contacted the Tribunal on 13 March 2024 to discuss the issue of representation. On 14 March 2024, the Tribunal received a postponement request signed by the applicant. This referred to another person having completed the application forms and requested a postponement to allow the applicant to obtain legal advice. I considered the applicant’s request and subsequently agreed to postpone the hearing. Although the postponement request sought an adjournment of 60 days, I postponed the hearing to 24 April 2024. Noting that this was almost 6 weeks from the date of the request, I considered this to be appropriate and reasonable in the circumstances. In all the circumstances and having regard to section 280 of the Act, the Tribunal has proceeded on the basis that [Representative A] is the applicant’s authorised recipient but not someone who is able to provide immigration assistance (in this regard, I note also that there is no suggestion that [Representative A] is a ‘close family member’ as defined in s 3H of the Migration Agents Regulations 1998 (Cth) and that the applicant indicated at the hearing that [Representative A] is his partner’s stepfather). The issue of representation was discussed with the applicant and [Representative A] in the telephone conversations on 13 March 2024.
The Tribunal was provided with a completed Response to hearing invitation form on 20 March 2024. In his response to hearing invitation, the applicant indicated that he wished to rely on the ‘Statement of Facts Appendix A’ as well as SMS messages and potential employment with a registered sponsor. He nominated a single witness, namely [Representative A]. With regard to the evidence this person would give and how it was relevant to his case, he stated ‘partners father in law’.
Also attached to the relevant email was the Statement of Facts (which was headed Appendix A). This was apparently prepared by [Representative A]. It referred to the manner in which the protection visa application was prepared, indicating that the applicant was not fluent in English, that he engaged another person to assist in securing the appropriate visa, that he did not sign the application, that he was unaware of the contents of the application until after it was lodged, and that another person completed the application and made up ‘the story’ (I note that this other person is named in the statement and I will refer to this person for the purposes of this decision as ‘Mr B’). The statement described the contents of the application as spurious at the very least and described the reaction when the contents of the application were received. The statement provided further information about the application and interaction with the Department, as well as the person who prepared the application (Mr B). It described the situation as very unfortunate for the applicant and indicated that he had been put under stress through no real fault of his own. It described rectification of the application as the main objective, stating that the applicant was a genuinely hard working and responsible person. It indicated that the applicant intended to seek guidance from a professional migration agent or a lawyer. It also referred to seeking out a registered employer able to sponsor an employee on the relevant visa. Reference was made to the applicant’s willingness to do what is correct.
I note that, at the Tribunal hearing, I showed the applicant the response to hearing information form and noted that he had signed it on 18 March. The applicant indicated that he remembered that. I noted that in that form it asked him whether he intended to rely on any documents at the hearing and he said he intended to rely on the ‘Statement of Facts Appendix A’ and SMS messages and potential employment with a registered sponsor. I gave the applicant a copy of the statement headed ‘Appendix A’ (as provided to the Tribunal on 20 March 2024). I asked whether this was the ‘Statement of Facts Appendix A’ that he wanted to rely on. The applicant confirmed that this was the case.
The Tribunal was also provided with copies of text messages attached to the Response to hearing invitation form. At the hearing, I gave the applicant a copy of the bundle of SMS messages as attached to the Response to hearing invitation. The applicant confirmed that these were the SMS messages that he wanted to rely on. The applicant indicated that he did not have any other documents to provide.
The applicant attended a Tribunal hearing on 24 April 2024. The hearing was conducted with the assistance of an interpreter in the Bislama and English languages. Although it is not necessary to set this out in full, I have had regard to all of the applicant’s evidence at the hearing.
The applicant’s partner, [Partner A] attended the hearing with the applicant. When asked whether he wanted [Partner A] to give evidence, the applicant said that they received the same email that contained the information of the application. He said she would give evidence on the information that the person did the application, the information in there. He said they both read the email. I raised with the applicant that, if I was going to take evidence from a witness, I would normally ask them to leave the room while I was talking to him but, if he just wanted [Partner A] to be there as a support person and not give evidence, she could stay in the hearing room while he gave his evidence. The applicant said it was okay if she could stay and just support him. I adjourned the hearing briefly for the applicant to consider whether he wished me to take evidence from [Partner A] or whether he just wished her to be present as a support person. After the adjournment, the applicant indicated that she could stay and support him and he was happy for her to be present while he gave his evidence. I confirmed with the applicant that [Partner A] would stay in the room and I would not take evidence from her. The applicant confirmed that he was happy with that.
In all the circumstances, I considered it appropriate for [Partner A] to remain in the hearing room throughout the hearing and not to take evidence from [Partner A]. In this regard, I note also that the applicant suggested initially that [Partner A] could give evidence in relation to the information in the application. The applicant’s own evidence and the statement from [Representative A] address the circumstances surrounding the making of the protection visa application and the manner in which the information in the application was produced. As discussed further below, I accept that another person prepared the protection visa application, that the applicant did not sign the application and that the application does not represent the claims the applicant wishes to make.
I note that, in his Response to hearing invitation form, the applicant requested that the Tribunal take oral evidence from [Representative A]. At the hearing, I raised with the applicant that he had nominated [Representative A] as a witness in his Response to hearing information form. I asked whether he still wanted me to take evidence from [Representative A]. The applicant replied in the affirmative. I asked the applicant what [Representative A] would give evidence about and whether it was just what was in the statement [Representative A] had made already. The applicant confirmed that this was the case. He confirmed that it was just about how the protection visa application was prepared. He confirmed that there was nothing else [Representative A] would give evidence about other than what was in his written statement. In all the circumstances, I did not consider it necessary to take oral evidence from [Representative A], although I had regard to the applicant’s wishes and considered his request as expressed in the Response to hearing invitation (as required by s 426 of the Act). [Representative A’s] evidence about the circumstances surrounding the making of the protection visa application is consistent with the applicant’s evidence at hearing. As discussed further below, I accept that another person completed the application, that the applicant did not sign the application and that the application does not represent the claims the applicant wishes to make. I indicated to the applicant towards the end of the hearing that I would not take oral evidence from [Representative A].
The applicant indicated at the hearing that he did not have a legal representative.
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
Claims in Protection Visa Application

At the hearing, I discussed with the applicant the claims made in his protection visa application. As discussed further below, the applicant indicated that these were not the claims he wanted to make.
I raised with the applicant at the hearing that I had seen his protection visa application and that he had said he was relying on the statement from [Representative A]. The applicant confirmed that it was correct that he had engaged Mr B to assist with securing a visa. He confirmed that it was the case that he did not sign the application submitted by this person to the Department.
When asked whether he was aware of what was in his protection visa application, the applicant said he did not have any idea of what was in the application until he received an email to respond to something. I asked whether the information in the protection visa application was accurate and correct. The applicant said all the information was incorrect. When he saw something in the application, that was the time he realised there was something wrong and it was not correct. He confirmed that he was saying that Mr B made up the story or the claims in his protection visa application. He said Mr B made up the story himself and did not let the applicant know about anything. He was in shock to see the information later on. He confirmed that none of the claims in the protection visa application were true. I put to the applicant claims that had been made in the protection visa application (as set out at pages 11 to 13 of the application form). I asked the applicant whether it was correct that he was saying that all of that had been made up by Mr B. The applicant said that was true. He did not think that something like that could happen in Vanuatu. I sought to confirm that none of that was true and it did not represent his true circumstances. He said it was all false stories. The applicant confirmed that those were not claims that he wanted to make.
I asked the applicant whether it was the case that he was not involved in politics and was not the campaign manager for a candidate. He said that was not true. I asked whether it was the case that he did not report another candidate for corruption and rigging of elections. The applicant said that was not true. I asked whether the claims about attacks and harm and torture and almost getting killed and a network of people keeping an eye on him were not true. The applicant said it had never been true. He confirmed that the claims about being threatened and almost killed were not true. He indicated that the claim about moving to [Province 1] and being found and assaulted, tortured and harmed was not true. The applicant confirmed that he was not claiming that if he returned he would be harmed, tortured, assaulted or killed. He confirmed that he was not claiming that the Vanuatu authorities could not or would not protect him. I put to the applicant that it was my understanding that he was saying that all of the claims and evidence in his protection visa application were a story that Mr B made up, and did not represent his claims or true circumstances, and were not true. The applicant said it was not true at all.
I note that the applicant has also indicated that he is relying on the written statement from [Representative A]. I have had regard to [Representative A’s] statement which is consistent with the applicant’s evidence about the circumstances surrounding the preparation of the protection visa application. I have had regard also to the SMS messages that were attached to the Response to hearing invitation. I accept that another person completed the application, that the applicant did not sign the application and that the application does not represent the claims the applicant wishes to make. I accept that the applicant was not aware of what was in the application until after it was submitted.
I accept that the claims in the applicant’s protection visa application do not reflect the claims that the applicant wishes to make and that they do not reflect his true circumstances. I accept that someone else prepared the application. I find that these claims do not represent the truth or the applicant’s true circumstances. The applicant was open at the hearing in indicating that the claims in the protection visa application were not true.
In these circumstances, I do not accept that the events described in the claims in the protection visa application occurred. I do not accept that the applicant was in any way involved in political activity or in any of the events described in the claims in the protection visa application, or that he has been in any way harmed, threatened, assaulted, tortured or attacked as claimed in the application. I do not accept that the applicant was a campaign manager for a candidate or was involved in politics or that he reported another candidate for matters such as corruption or rigging of elections. I do not accept that he was harmed, threatened, assaulted, tortured, attacked or almost killed as claimed in the application, or that there was a network of people keeping an eye on his movements. I do not accept that he moved to another place, and was found and assaulted, tortured and harmed. I do not accept that the events described in the application occurred and am not satisfied that there is a real chance that the applicant would be persecuted based on the matters raised in the protection visa application. Nor do these matters give rise to substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Vanuatu, there is a real risk that he will suffer significant harm. I find that the claims made in the protection visa application do not represent the applicant’s true circumstances or the claims that the applicant wishes to make. The applicant has confirmed also that he is not claiming that the Vanuatu authorities could not or would not protect him. In this regard, I find that there is no real chance that the applicant would be persecuted for any of the reasons in s 5J(1)(a) of the Act and that there are not substantial grounds for believing that there is a real risk that the applicant will suffer significant harm.
Other Matters
At the hearing, I discussed with the applicant his circumstances in Vanuatu. He indicated that he was born in Port Vila. The applicant confirmed that he had lived at an address in [Village 1] from [birth]. When asked whether he had been working in Vanuatu, he said he had a little bit of work. He gave evidence to the effect that he had worked in a supermarket. He said he was doing that for one year. I raised with the applicant that his protection visa application indicated that he had left Vanuatu [in] May 2023. The applicant said he left Vanuatu in around 2020. He said he did not do the application, somebody else did that. He confirmed that he had been in Australia since 2020 and indicated that he came in February. When asked whether he had been doing the work in the supermarket for one year up until February 2020, the applicant replied in the negative. He said that he left the job and then stayed at home for a little while before coming here. He said that he left the job around 2016, just after Cyclone Pam. When asked how he supported himself in Vanuatu, the applicant said that he helped his parents to do a little bit of farming and get crops and sell them in the market. He confirmed that they grew crops for the family to eat and some crops to sell at the market. He indicated that his parents were still living in Vanuatu. When asked whether he had been living with his parents before he came to Australia, he confirmed that they lived on the same plot. He indicated that he was in contact with his parents and had contact with them once or twice a week, although he indicated that he had to call friends or neighbours to bring the phone over to them. He also gave evidence about his siblings, indicating that his parents had adopted [other children]. He indicated that he was the oldest. He indicated that one brother was living next to his parents. [Other siblings] lived somewhere else. He indicated that [one sibling] was married but [the others] were not married. He indicated that [one of them] worked as [an occupation 1]. When asked about contact with his siblings, the applicant said not all the time with [one sibling] but he had been communicating with [another]. When asked about his schooling, the applicant indicated that he went to school but dropped out due to school fees. He indicated that he completed [grade]. The applicant indicated that he had been working in Australia, doing farm work.
The applicant gave evidence that [Partner A] was his partner. They were not married but were living together. He said they had been living together for 16 years. He indicated that [Partner A] was from Vanuatu and that they had been living together in Vanuatu. He indicated that she came to Australia in 2023 and was not a permanent resident or citizen of Australia. The applicant gave evidence to the effect that he had [number] children in Vanuatu and his partner, [Partner A], had [other] children, and they all looked after them together. He indicated that his [number] children were living with his parents.
When asked why it was that he did not want to go back to Vanuatu, the applicant said it was not that he did not want to go back. He said he wanted to be here for a while just to work and support family and the kids back home. He said in Vanuatu there was no job that was sustainable that could help him financially. He said that he asked for help and indicated that Mr B did all that. He confirmed that he wanted to stay in Australia to work. He indicated that there was no reason why he was afraid of going back to Vanuatu. When asked whether there was anything else he wanted to tell me, the applicant said that he just wanted to say that he did not really know about the process of the visa. He asked for help from that guy and that was what he did and he did not really know what he had done.
I asked the applicant whether he was saying that he thought he would not have work in Vanuatu. I asked whether he could work on the family farm like he had before. The applicant said it was like a little backyard garden. He said now the children were grown up and going to school it would not be sustainable for them and the children. I asked the applicant why he could not work, for instance, in a supermarket like he did before. The applicant said maybe he could go back to that job but he could not sustain his family. He said it was equivalent to AUD5 per hour. He would not be able to sustain his family like he did in Australia.
I explained to the applicant that, to meet the refugee criterion, it was necessary to fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. I explained that there must be a real chance that he would be persecuted or suffer serious harm for one of those reasons. I noted that I had seen independent information that suggested that the economic conditions in Vanuatu might be challenging. I noted, for instance, that I had seen a report which stated that poverty was extensive, and more than three quarters of the population relied on subsistence agriculture.[1] I put to the applicant that I might question whether the general economic conditions or things like low wages or it being difficult to find a job related to any of the relevant 5 reasons (which I spelt out). I put to the applicant that I might doubt that there was a real chance that he would be persecuted for any of those reasons. With regard to the complementary protection criterion, I discussed with the applicant the definition of significant harm. I put to the applicant that I might have some doubt, even if the economic conditions were challenging and wages were low and it might be difficult finding a job and supporting his family, whether that gave rise to significant harm. When asked whether there was anything else he wanted to say, the applicant said he understood the requirements of the visa now but before he did not know. He indicated that he asked Mr B about a proper working visa but he insisted on doing the protection visa. The applicant referred to wanting to stay and work and help the children.
[1] Freedom House, Freedom in the World 2023: Vanuatu
I have carefully considered the applicant’s evidence. I accept that he was born in Port Vila and lived in [Village 1] as claimed. I accept that he lived on the same plot as his parents. I accept that he worked in a supermarket for around one year and that he left the job around 2016. I accept that he helped his parents with farming and that the family grew crops to eat and some crops to sell at the market. The applicant’s evidence indicates that he continues to have some contact with his parents. I accept also the applicant’s evidence about his adopted [siblings]. I accept the applicant’s evidence that he did not complete his schooling due to fees. I accept that the applicant is in a relationship with [Partner A], although they are not married, and that they also lived together in Vanuatu as claimed. I accept that the applicant has [number] children and [Partner A] has [number] children and that they look after the children together. I accept that the applicant is working in Australia and that he wishes to continue working in Australia to assist in supporting his family.
I note that, when asked why it was that he did not want to go back to Vanuatu, the applicant said it was not that he did not want to go back, and referred to wanting to be here for a while to work and support his family back home. He referred to there being no job that was sustainable that could help him financially. He indicated that there was no reason why he was afraid of going back to Vanuatu.
I note the applicant’s claims to the effect that there is no sustainable job that could support him financially and that he would not have work in Vanuatu. I have considered his claims to the effect that they just had a little backyard garden, and that it would not be sustainable now the children are grown up and going to school. I note his claims about the pay from the job being equivalent to AUD$5 per hour. I am willing to accept that the garden or plot farmed by the family is small and that the applicant now has expenses for items such as the children’s schooling. As discussed with the applicant, independent information indicates that the economic conditions in Vanuatu are challenging. For instance, it has been reported that poverty is extensive, and that more than three quarters of the population rely on subsistence agriculture.[2] Although the evidence indicates that the applicant has worked in the past, I accept that the economic conditions may affect the applicant’s ability to find work and that wages may be low. However, I do not accept that these economic conditions or their impact, for instance by way of reduced employment prospects or financial hardship, constitute persecution of the applicant for any of the reasons enumerated in s 5J(1)(a). I am willing to accept that the applicant’s family’s land might be small and that this might make it challenging to support the family and their expenses (including school fees), and that the applicant may have found wages to be low. However, I do not accept that such matters are related to any of the reasons in s 5J(1)(a). I have carefully considered all of the applicant’s circumstances including his family composition and circumstances, his inability to complete schooling due to the fees and the expenses associated with matters such as schooling and supporting his and his partner’s children. However, having carefully considered all of the evidence before me, I am not satisfied that there is a real chance that the applicant would be persecuted in Vanuatu for any of the reasons enumerated in s 5J(1)(a) of the Act.
[2] Freedom House, Freedom in the World 2023: Vanuatu
I have carefully considered all of the applicant’s circumstances, including on a cumulative basis. However, I am not satisfied, looking to the reasonably foreseeable future, that there is a real chance that he would be persecuted for any of the reasons enumerated in s 5J(1)(a). I am not satisfied that he is a refugee as defined in s 5H(1) of the Act.
For the reasons given above, I am 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), I have considered the alternative criterion in s 36(2)(aa).
For reasons given above, I have found that the claims made in the protection visa application do not represent the truth or the applicant’s true circumstances. I find that these matters do not give rise to substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Vanuatu, there is a real risk that he will suffer significant harm.
In considering the applicant’s claims, I note that ‘significant harm’ for these purposes is exhaustively defined in s 36(2A) of the Act: 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. I have had regard to the definitions of those terms.
As discussed above, I note the applicant’s claims to the effect that there is no sustainable job that could support him financially and that he would not have work in Vanuatu. I have considered his claims to the effect that they just have a little backyard garden, and that it would not be sustainable now the children are grown up and going to school. I note his claims about the pay from the job being equivalent to AUD$5 per hour. I am willing to accept that the garden or plot farmed by the family is small and that the applicant now has expenses for items such as the children’s schooling. As discussed above, independent information indicates that the economic conditions in Vanuatu are challenging. Although the evidence indicates that the applicant has worked in the past, I accept that the economic conditions may affect the applicant’s ability to find work and that wages may be low. I am willing to accept that the applicant’s family’s land might be small and that this might make it challenging to support the family and their expenses (including school fees), that the economic conditions may affect the applicant’s ability to find work and that wages may be low. However, I do not accept that such matters or the impact of the economic conditions in Vanuatu, for instance by way of reduced employment prospects, involve the intentional infliction of pain or suffering such as to constitute cruel or inhuman treatment or punishment, or torture. Nor do I accept that they involve an act or omission that is intended to cause extreme humiliation such as to constitute degrading treatment or punishment. The evidence does not support a conclusion that there are substantial grounds for believing that there is a real risk that the applicant will be subjected to the death penalty or be arbitrarily deprived of life. I do not accept that the impact of the economic conditions in Vanuatu (including in relation to finding employment), or matters such as the size of the family’s land, challenges in supporting the family and their expenses, or low wages constitute significant harm. I do not accept that they give rise to substantial grounds for believing that there is a real risk that the applicant will suffer significant harm. I have carefully considered all of the applicant’s circumstances including his family composition and circumstances, his inability to complete schooling due to the fees and the expenses associated with matters such as schooling and supporting his and his partner’s children. However, having carefully considered all of the evidence before me, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Vanuatu, there is a real risk that he will suffer significant harm.

I am 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.
Don Smyth
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 2392

1 May 2024

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