2401618 (Refugee)
[2024] AATA 3287
•17 May 2024
2401618 (Refugee) [2024] AATA 3287 (17 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2401618
COUNTRY OF REFERENCE: Vanuatu
MEMBER:Rebecca Mikhail
DATE:17 May 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 17 May 2024 at 2:40pm
CATCHWORDS
REFUGEE – protection visa – Vanuatu – lesbian – husband’s visa status – job opportunities – cost of living – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 56, 65
Migration Regulations 1994 (Cth), Schedule 2Any 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
The applicant, who claims to be a citizen of Vanuatu, arrived in Australia [in] July 2022 on a Temporary Work (International Relations) (subclass 403) visa.
On 4 October 2023 the applicant applied for a permanent protection visa.
On 18 January 2024 a delegate of the Minister for Home Affairs refused the grant of the visa under s 65 of the Migration Act 1958 (Cth) (the Act).
This is an application for review of that decision.
The issue in this case is whether the applicant meets the refugee criterion and, if not, whether she is entitled to complementary protection or is a member of the same family unit of someone who meets either. The relevant law and mandatory considerations are set out in the attachments.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
APPLICANT’S CLAIMS FOR PROTECTION AND EVIDENCE
Before the Department
The applicant’s claims, as outlined in her application for protection, can be summarised as follows:
·She was born in [year] in [location] and never married.
·She left Vanuatu because she is a lesbian.
·She faced verbal abuse, severe isolation and rejection, discriminatory language and derogatory remarks from family members, peers, and individuals because they do not accept her sexuality.
·She was threatened with being forced to marry individuals of the opposite gender and faced coercion into undergoing harmful conversion therapy by family members and religious leaders.
·She did not seek help within Vanuatu due to fear of retaliation, and because Vanuatu lacks comprehensive legal protections for members of the lesbian, gay, bisexual, and transgender (LGBTI) community.
·If returned to Vanuatu, she may face persecution, violence, and social isolation. She may be forced into a heterosexual marriage and conversion therapy. She would have to live in secrecy and suppress her true identity to avoid discrimination.
·The authorities cannot protect the applicant because Vanuatu’s legal system and cultural norms do not provide for sufficient legal protection for members of the LGBTI community. There are resource constraints among the authorities in Vanuatu.
The applicant did not provide any further supporting evidence to the Department of Home Affairs (the Department) in relation to her claims for protection.
The applicant was not invited to an interview with the Department in relation to her application for protection.
On 14 December 2023 the applicant was sent correspondence from the Department inviting her to provide additional information about her claims for protection under s 56 of the Act. According to the delegate’s decision, in response, the applicant sent the Department an uncertified copy of her Vanuatu passport.
The delegate refused the grant of the visa on the basis that they found the applicant’s claims were not credible.
Review application
On 1 February 2024 the applicant lodged an application for review of that decision with the Administrative Appeals Tribunal (the Tribunal). She provided the Tribunal with a copy of the delegate’s decision record with her application. She was not represented in relation to this review.
On 19 April 2024 and 14 May 2024, the applicant appeared before the Tribunal via video. The hearings were conducted without the assistance of an interpreter as the applicant can speak fluent English.
CONSIDERATION OF CLAIMS AND EVIDENCE
With her application for protection, the applicant provided an uncertified copy of her Vanuatu passport. On the evidence before me, I am satisfied the applicant is a national of Vanuatu and that Vanuatu is the receiving country for the purpose of this assessment.
At the beginning of the first Tribunal hearing, I explained to the applicant that this was a review of her application for a protection visa by the Department and my role in that regard and the criteria that I must consider in order to decide whether she meets the criteria for a protection visa.
During this hearing the applicant said that a lawyer, who was a friend of her husband’s, had prepared her application for protection. She said she paid him and sent him her documents but did not complete the application with him and did not know what was in the application nor had she read it before it was submitted on her behalf. When I asked her if she knew what visa he applied for on her behalf, she said it was a ‘subclass 866’ visa but which she then referred to as a bridging visa which she said would give her the right to stay and work in Australia. I asked her if she was aware they were different visas and she said she did not know about that. I explained to her that they were different visas and explained to her that her lawyer had applied for a protection visa on her behalf. She indicated she understood my earlier explanation at the beginning of the hearing in regard to the criteria for a protection visa. She confirmed she received the Department’s refusal notification and had read it and understood some of it. I asked her if she knew on what basis her lawyer had applied for a protection visa on her behalf and she said she did not. I accept her evidence in this regard.
When I asked the applicant why she had approached this lawyer to assist her apply for a visa, she said because she does not know how to apply for a visa, so her husband asked his lawyer to help her apply for the same visa as her husband. During the hearing she said she had married her husband in 2016 and he came to Australia before her in 2019 on a ‘subclass A’ visa. I asked her what visa her husband had now, and she said ‘866’. She said did not know when her husband was granted his visa. I asked her again if she was sure her husband held a ‘866’ visa and she said yes, and I said she had earlier referred to him having a ‘subclass A’ visa which suggests he might hold a different visa.
During the hearing the applicant said that she completed twelve years of school and worked as a [Occupation 1] for two years. She said, whilst in Vanuatu, she and her husband had been financially supported by her parents and they also sold items like shoes or ice cream. She said she had two children remaining in Vanuatu being looked after by her family. She said she and her husband came to Australia to work due to limited job opportunities in Vanuatu. I asked her why she wanted to stay in Australia, and she said the jobs are very limited and expenses are high in Vanuatu, especially having children in school, so even if she had a job, it would not be enough to fulfil her dreams or goals, so she had to make the tough decision to come to Australia and work for her family and kids. I asked her what she meant by her dreams and goals, and she said she wanted to build a house for her family and make some income for her children to secure a better future for them. I accept the above evidence as credible.
I asked the applicant if she had any fears in regard to returning to Vanuatu and she said she did not. I then noted to her that I might find that she did not meet the criteria for a protection visa. I asked her if there was anything else she would like to say and she proceeded to ask about other visa options she may be able to apply for if she remains in Australia and returns to Vanuatu for a visit. I suggested she get advice from an Australian lawyer or registered migration agent.
I then outlined to the applicant the claims for protection that were included in her application for protection in relation to the claim that she was a lesbian. She indicated she had not been aware of those claims. I asked if she had any comment in that regard and she said she was not a lesbian. I accept her evidence in this regard and I am satisfied she is not a lesbian. I am not satisfied she has a well-founded fear of persecution or will face a real risk of significant harm in Vanuatu on the basis of the claims outlined in her application for protection.
I noted to the applicant again that, if she did not have any fears of returning to Vanuatu, then I may find she does not meet the criteria for a protection visa. She said, yes, in response. I asked her, again, if she had anything else to tell me, and she said no.
On 23 April 2024 the Tribunal emailed the applicant requesting that she provide documentary evidence of her husband’s current Australian visa, and when it was granted, by close of business 30 April 2024.
On 26 April 2024 the applicant emailed the Tribunal a copy of her husband’s bridging visa grant notice which indicated it was issued on 14 September 2020 in association with his application for a protection visa.
The applicant did not provide any further documentary evidence to the Tribunal in support of her application for protection.
On 29 April 2024 the Tribunal invited the applicant to another hearing on 14 May 2024 to discuss further issues arising in her case and the evidence she provided to the Tribunal about her husband’s Australian visa.
During the second Tribunal hearing I explained to the applicant that I had requested evidence of her husband’s Australian visa as she had indicated that he had a protection visa, and I was assessing whether she may be entitled to a protection visa on the basis of being a member of the same family unit of someone who holds a protection visa. I noted to the applicant that the evidence she provided to the Tribunal indicated her husband held a bridging visa which he had been granted in association with his application for a protection visa, and not a protection visa. I asked if she had understood what I had said, and she said yes. Later in the hearing she confirmed this was the visa her husband currently had, and she understood it was a bridging visa. I asked her why she had told me it was a ‘866’ visa in the first hearing and she said she had thought it was a protection visa because she did not see his protection visa. She also said her husband had confirmed with her that it was a bridging visa after the first Tribunal hearing. I said to the applicant that, on the basis of the evidence she provided regarding her husband’s visa, I may find he does not hold a protection visa and she did not meet the criteria for a protection visa on the basis of being a member of the same family unit of someone who holds a protection visa. She indicated she understood what I had said and had no comment.
On the evidence before me I am not satisfied 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.
I also noted to the applicant that, in regard to her claims in the first hearing that she wanted to stay in Australia because jobs in Vanuatu were limited and expenses were high and she could not fulfil her goals in Vanuatu, I may find this does not meet the definition of a refugee as I may find it does not involve serious harm or systematic and discriminatory conduct for reasons of her race, religion, nationality, membership of a particular social group or political opinion. She indicated she had understood what I had said and had no comment.
I also noted to the applicant that I may find her concerns in this regard do not amount to significant harm under the complementary protection criterion. She indicated she had understood and had no comment in response.
On the evidence before me I am not satisfied the applicant has a well-founded fear of persecution in Vanuatu in regard to concerns she raised about the limited jobs and high expenses in Vanuatu that prevent her from fulfilling her goals as I am not satisfied any challenges she may face in this regard amount to serious harm as I am not satisfied she will face a real chance of facing a threat to her life or liberty, significant physical harassment, significant physical ill treatment, significant economic hardship that threatens her capacity to subsist, the denial of access to basic services that threatens her capacity to subsist, the denial of capacity to earn a livelihood of any kind that threatens her capacity to subsist or any other harm that could be considered serious harm. Nor do her concerns involve systematic and discriminatory conduct for reasons of her race, religion, nationality, membership of a particular social group or political opinion.
I am also not satisfied that the applicant will face a real risk of significant harm in Vanuatu in the reasonably foreseeable future in relation to these concerns as I am not satisfied she will face a real risk of being subject to the arbitrary deprivation of her life, the death penalty, torture, or the intentional infliction of cruel or inhuman treatment or punishment, or degrading treatment or punishment as defined in the Act.
The applicant did not raise any other fears of harm, and none arise on the material before me.
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).
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.
Rebecca Mikhail
MemberATTACHMENT A - 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). 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 Attachment B.
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 Attachment B.
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 (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
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.
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Key Legal Topics
Areas of Law
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Immigration
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Statutory Construction
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Standing
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Natural Justice
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