2401789 (Refugee)

2401789 (Refugee) [2024] AATA 2711 (16 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2401789

COUNTRY OF REFERENCE: Vanuatu
MEMBER:David James
DATE:16 April 2024
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 16 April 2024 at 7:35am
CATCHWORDS
REFUGEE – protection visa – Vanuatu – particular social group – homosexual – physical assault – fear of detention – delay in applying for protection – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 56, 65, 411, 426, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
ABT16 v Minister for Home Affairs [2019] FCA 836
Anadaraj Subramaniam v MIMA (1998) VG310 of 1997
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chan Yee Kin v MIEA (1989) 169 CLR 379
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Fox v Percy (2003) 214 CLR 118
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MIAC v SZQRB (2013) 210 FCR 505
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
SZLVZ v MIAC [2008] FCA 1816
SZRQA v MIBP [2013] FCA 962
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 January 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of the Republic of Vanuatu (Vanuatu), applied for the visa on 28 October 2023. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H of the Act and was therefore not satisfied that the applicant was a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Vanuatu, there is a real risk they will suffer significant harm as defined in s 36(2)(aa) of the Act. Therefore, the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
The applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (the Tribunal) on 4 February 2024. The applicant provided a copy of the delegate’s decision with the application for review.
As noted above, the applicant provided a copy of the delegate’s decision to the Tribunal. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the applicant a protection visa having considered the material before the delegate. The Tribunal is satisfied that the decision of the delegate is reviewable under s 411(1)(c) of the Act.
The applicant was not represented in relation to the review.
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.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even when the possibility of persecution is below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
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.
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.
Mandatory considerations
Issues
The issues in this review are whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that, if the applicant was returned to Vanuatu they would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Vanuatu, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Documentary evidence before the Tribunal
The Tribunal has before it documents from the Department’s file and those submitted by the applicant to the Department and the Tribunal relating to the applicant’s claims for protection, which includes (but is not limited to) the following documents, considered by the Tribunal:
·The applicant’s protection visa application lodged on 28 October 2023, and the annexed copy of the applicant’s bio data page of his Vanuatu passport;
·The Department’s s 56 (of the Act) ‘Request for more information for a protection visa application’ letter to the applicant of 15 December 2023, in which the attached ‘request detail’ requested in part that:
Delay in lodgement
In your application, you claimed that you fear returning to Vanuatu because of harm you may receive for identifying as a homosexual. However, you did not apply for a Protection visa until 8 months after arriving in Australia. Due to the length of time between your arrival in Australia and when you lodged your application, I am concerned about the genuineness of your protection claims. Therefore, I am inviting you to provide any information about why so much time passed before you lodged your application.
Family composition
Please provide details of your family members living in Australia, Vanuatu or any other country. This includes any current partners, (spouse or de facto), children (biological or adopted), parents (biological, adopted, stepparents, legal guardians) and siblings (including full, half, adopted or stepsiblings). In your response, please include the following information for each family member:
●        Full name
●        Date of birth
●        Citizenship
●        Current country of residence and full residential address
●        Whether they are living or deceased.
Claims lacking detail
Your statement of claims lacks key details of your claims about harm you may receive for identifying as a homosexual. You have also not provided any evidence in support of these claims. Due to your lack of detail or evidence, I am concerned about the genuineness of your protection claims. Therefore, to assist me in deciding whether to accept that these claims are genuine, I am inviting you to provide further information and documentary evidence about what happened to you in Vanuatu, and what may happen if you return. Please include information such as dates and locations of events.
When providing further information and documentary evidence please consider the following:
In your statement of claims you claim you identify as a person who is homosexual. When providing further information and documentary evidence about how you self-identify please consider the following:
●        When did you begin to identify as homosexual?
● Are you openly identifying as homosexual? If so, I invite you to provide further information about when you began to do so, and how you were received.
● Have you engaged with the homosexual community within homosexual? If so, I invite you to provide further information and documentary evidence to support your claim.
● Have you engaged with the homosexual community within Australia? If so, I invite you to provide further information and documentary evidence to support your claim.
● Are your family, friends or anyone in the Vanuatu community aware you identify as homosexual? If so, I invite you to provide further information about how you have been received, and any documentary evidence you may have to support your claim.
In your statement of claims you claim you began a same sex relationship in Vanuatu, in 2016. When providing further information and documentary evidence about your same sex relationship please consider the following:
● Please provide the following details and information of the person with whom you engaged in a same sex relationship: full name, date of birth, citizenship, current country of residence, full address and whether they are living or deceased.
● When did you meet this person, and how did the same sex relationship come about?
●        Are you still in a relationship with this person?
● How has this person been received by their community for being in a same sex relationship?
● Please provide further information and documentary evidence of your relationship with this person, and the current state of your relationship. Please include information such as relationship documents, shared bank accounts, shared lease agreements or bills, letters, affidavits, testimonials, social media posts or other such documents indicating
you have been in a relationship, and the current state of your relationship.
In your statement of claims you claim you and your partner were attacked in 2018, for being in a same sex relationship. When providing further information and documentary evidence regarding the attack please consider the following:
● Were the people who attacked you known to you? If so, I invite you to provide details and further information regarding their identity and your interactions with them.
●        Have they people who attacked you continued to harass or harm you?
● You have stated you sustained injury to your head in the attack. Please provide further information and documentary evidence of the injuries you have sustained when being harmed for identifying as homosexual.
● Have you been harassed, attacked or harmed at other times for identifying as a homosexual? If so, I invite you to provide details and further information of those events, along with any documentary evidence you may have to support your claim.
In your statement of claims you claim you will face harm, jail or possibly be killed if you return to Vanuatu as someone who identifies as homosexual. When providing further information and documentary evidence please consider the following:
●        What has led you to believe you may be harmed?
●        What has led you to believe you may be killed?
●        Who do you believe will harm you?
●        Will you be specifically targeted upon your return?
● Are there any areas within Vanuatu where you will not be exposed to the risk of harm?
● You have stated you will be unable to seek help and may be put in jail for identifying as homosexual. Please provide further information indicating why you believe you will be put in jail when trying to seek help.
● You have stated identifying as homosexual is illegal in Vanuatu, and the authorities will not provide you with protection. Please provide further information indicating why you believe the Vanuatu authorities will not be able to protect you.
If you are unable to provide more information about your claims or copies of documents, please provide a detailed explanation of why you cannot provide them. If you are unable to provide documents, please also provide details of the efforts you made to obtain them.
Any information that you provide in response to this letter will be taken into account in the decision on your application.
Please note that a decision on your application may be made on the information in your application and on any response to this letter, and you may not be given another opportunity to provide more information about your claims.
- The applicant’s application for review of 4 February 2024 and the annexed Decision Record of 15 January 2024; and
·The administrative and movement records of the Department relating to the applicant;
Claims for protection
The applicant in his visa application, made the following claims for protection (as summarised below) as being that:
·He left Vanuatu because he started a homosexual relationship with a guy mate on 10 January 2016 and they were disliked by their community who claimed they caused embarrassment to the people in Vanuatu;
·He experienced harm in Vanuatu because he was a homosexual and he was teased, kicked and bullied. On [a day in] January 2018, he and his partner were assaulted by 6 to 7 people on motorbikes with helmets and pieces of wood who told them gays were not allowed in Vanuatu society. This assault resulted in him receiving several head injuries;
·He did not seek help in Vanuatu because he claims that the country does not allow homosexuality and he feared being jailed if he made a report. He did not try to relocate because he claims there is no place in Vanuatu where homosexuals are allowed to stay;
·He fears returning to Vanuatu as he will be called a creature, harmed, mistreated, and killed because he is a homosexual; and
·He does not believe the Vanuatu authorities will protect him if he goes back to Vanuatu as same-sex relationships are illegal.
Department interview
The applicant was not offered an interview with the Department.
Delegates decision
The delegate’s decision of 15 January 2024 to refuse the protection visa was made on the information before the delegate. The delegate found that the applicant’s claims were generic and lacked any substantial detail and as the applicant failed to respond to the invitation under s 56 of the Act or provide further information the delegate found that the applicant’s situation was not as they had described in their application, and this raised concerns that the claims were not credible. Therefore, the delegate was not satisfied that the applicant met the criteria in s 5H(1) of the Act, and therefore was not a refugee. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Vanuatu, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
Invitation to attend hearing
On 13 March 2024, the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on 11 April 2024 at 9:30 am. This correspondence advised the applicant that the Tribunal had considered all the material before it relating to their application, but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the case without further notice.
On 8 April 2024, the Tribunal sent a SMS Hearing Reminder to the applicant’s mobile telephone number [specified] (the mobile number which the applicant had provided to the Tribunal in his application for the review). The message read:
Reminder – Your AAT hearing is on 15/04/24. Please check the hearing invitation to confirm details. If you have not replied to your hearing invitation, please do so immediately. Please do not reply to this number. Any questions, call 1800 228 333.
The Tribunal sent a further SMS Reminder to the applicant’s mobile number on 12 April 2024, it read:
Reminder – Your AAT hearing is on 15/04/24. Please check the hearing invitation to confirm details. If you have not replied to your hearing invitation, please do so immediately. Please do not reply to this number. Any questions, call 1800 228 333.
Review hearing - 15 April 2024
The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing.
On the morning of the scheduled hearing, the Tribunal telephoned the applicant’s mobile number [specified] at 9:31 am and that call rang several times before being ended at the receiver end. The Tribunal then again called the applicant’s mobile number at 9:46 am and again the phone rang several times before being ended at the receiver end again. At 10:00 am the Tribunal again called the applicant’s mobile number which rang several times before again being ended by the receiver.
Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with the invitation sent via email to their nominated address as identified above at paragraph 18. Additionally, the Tribunal notes that two separate SMS hearing reminders were also sent to the applicant’s nominated mobile telephone number, as is outlined above at paragraphs 19 and 20.

As noted above, the Tribunal also contacted the applicant on the morning of the scheduled hearing by telephoning his mobile telephone number on three separate occasions. In that regard, the Tribunal notes that all of those calls were ended at the receiver end of the call. The Tribunal finds that given the applicant had been notified of his hearing by way of the invite as has been discussed above, and having further received two SMS reminders, the applicant’s failure to attend the Tribunal on the day of his hearing and to further not answer calls from the Tribunal is inconsistent with the applicant having any intention to cooperate with, and attend before the Tribunal for a hearing of his review where he could have given evidence and made arguments in support of his claims. Additionally, the Tribunal notes that the applicant did not contact the Tribunal on the day of his hearing, 15 April 2024, seeking to explain his absence, or discuss his hearing.
In the circumstances of this matter, as has been outlined above, and pursuant to s 426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.
Visa history as relevant
The applicant arrived in Australia [in] February 2023 and eight months and two weeks later made his application for the protection visa. The applicant had arrived in Australia on a Temporary Work (International Relations) (subclass 403) visa which had been issued on 7 February 2023 and was to cease on 16 November 2023.
Country information
Oxfam in their 2020 Research Report on ‘Gender and LGBTQI+ Policy and Programming in Vanuatu’ noted under the heading of ‘SOGI (Sexual orientation and gender identity) Inclusion’, that:
A specific focus in this research is on the inclusion of lesbian, gay, bisexual, transgender, queer, and intersex (LGBTQI+)—or sexual orientation and gender identity (SOGI)—issues within policy and programming in Vanuatu.
Internationally, there is an increasing focus on equality for SOGI people, and in recent years the United Nations (UN) has made several formal declarations on the topic. In 2008 the UN General Assembly made a statement in support of recognizing SOGI rights as human rights, and in 2011 the UN Human Rights Council (UNHRC) passed a resolution to document, for the first time, discriminatory laws, practices, and acts of violence against SOGI people in member states. Most recently, in 2016, the UNHRC passed a resolution to appoint an independent expert to the General Assembly to lead work on protection against violence and discrimination based on sexual orientation and gender identity.
The Vanuatu government has endorsed each of these UN resolutions. 23 Additionally, during a UN Universal Periodic Review in 2019, Vanuatu took note of a recommendation to “implement specific measures to combat . . . discrimination based on sexual orientation and gender identity, in order to guarantee the enjoyment of rights by lesbian, gay, bisexual, transgender and intersex persons.”24 Vanuatu decriminalized same-sex sexual conduct in 2007, 25 in contrast to some other Pacific island nations, including Samoa, Solomon Islands, and Tonga, where same-sex relationships are illegal and punishable by a jail sentence…
There is limited data on the prevalence of SOGI individuals in Vanuatu. They are not explicitly measured in government census data, and the categories used in the sex-disaggregated data collected by many NGOs do not accurately capture people of diverse genders or any information about sexuality. 30 Some indicative numbers from VPride, a charitable organization working with SOGI communities in Vanuatu, show that across three of Vanuatu’s islands—Efate, Malakua, and Santo—there are at least 400 transgender individuals, 100 gay and 100 lesbian individuals, and 200 gender-nonconforming individuals. 31 These figures are an under-representation of prevalence in Vanuatu as numbers are not available for the remaining islands, and many SOGI individuals are likely to be reluctant to identify themselves as such.[1]
Under the heading of ‘SOGI Rights in Vanuatu’ it is further reported that:
There are some positive signs for SOGI rights in Vanuatu. First, in contrast to several other countries in the region, Vanuatu decriminalized same-sex sexual conduct in 2007. Furthermore, the existence of VPride and its legal registration as an official charitable organization in 2017 constitute significant achievements in the context of the continued strong influence of conservative Christian principles in Vanuatu society. Founded in 2007, VPride originated as a peer education program delivered by Wan Smolbag, an NGO focusing on HIV and sexual health. VPride now describes its remit as “to help educate, advocate, and mobilize around diverse sexual orientation, gender identity, expression and sex characteristics” in Vanuatu. A strategic plan for 2020–2050 outlines the organization’s planned activities and partnerships and details recent developments in its governance, including the introduction of an elected board. VPride is active in Vanuatu, delivering activities at the youth centre, participating in gender and human rights workshops, hosting and advising embassy representatives on SOGI issues, and assisting with research. It also collaborates with the Ministry of Health in offering peer education on HIV prevention and sexual health. Much of VPride’s remit— and its core funding from the UN—remains focused on HIV, but occasional small amounts of dedicated funding for specific activities allow more varied work. All of the key informants interviewed here were familiar with VPride and its work, despite its small size and limited resources.[2]
And under the heading of ‘Social acceptance of SOGI’ it is reported that:
There have been some indications of a shift in social attitudes toward greater acceptance of SOGI individuals. A SOGI informant believed the situation had improved for her as she could live openly as a trans woman: “Comparing Vanuatu now to 15 years ago, oh no, I cannot [think about what it was like then]” (key informant 7). She still believed she was one of very few people who were openly out in Vanuatu society. The respondent at VCC described a similar change in attitudes: “In our church we have [a trans woman member], for example. Before, when [she] entered our church, everybody would be turning around, looking at [her], laughing and giggling. But [she] didn't stop coming to church. So now when [she] comes to church, [she] just walks past everybody and just sits where [she] wants to sit and everybody appreciates who it is. [She’s] accepted here. We don't do all those kinds of things anymore, because we all know [she’s] that kind of person, and [she] chooses to be that kind of person; that's [her] right.” Although this anecdote suggests that tolerance may be increasing in some communities, the persistence of deep-seated attitudes and beliefs is demonstrated by the fact that the informant misgendered the trans individual during this account and suggested that being SOGI is a choice. As the SOGI respondent explained, “This is not a lifestyle choice. It's not like I decided today to be gay and transgender, it's not that” (key informant 7). There were also some apparent shifts in attitudes in village communities (Box 7), but discrimination and persecution persist, and there is a need to be highly sensitive to context during sensitization efforts…[3]
[1] ‘Gender and LGBTQI+ Policy and Programming in Vanuatu’, McCormack, C, Jennings, S, and Kenni, L, Oxfam Research Reports September 2020, at page 11 – bid at page 24.
[3] Ibid at page 25.
FINDINGS AND REASONS
The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa.
Country of reference
According to his protection visa application, the applicant claims to be citizen of Vanuatu and provided a copy of his Vanuatu passport to the Department. Based on this material, the Tribunal finds that the applicant is who he says he is, and a national of Vanuatu. Vanuatu is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
Analysis
The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.
The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[4] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish, or assist in establishing, the claim.[5] This is consistent with the established proposition that it is for the applicant to make his or her own case.[6]
[4] Section 5AAA of the Act.
[5] Ibid (with effect from 14 April 2015).
[6] Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal; that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[7] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[8] and notes that in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.
[7] Fox v Percy (2003) 214 CLR 118
[8] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[9] A similar approach is taken in the Department’s Refugee Law Guidelines[10] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[11] which both provide useful guidance for this Tribunal.
[9] SZLVZ v MIAC [2008] FCA 1816 at [25].
[10] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
[11] UNHCR, re-issued February 2019 at [203]–[204].
The Tribunal notes for the reasons discussed below, that the applicant claims are lacking any detailed description of the facts which he relies upon in support of his claims. Further, as of the date of the scheduled hearing of this matter, the Tribunal notes that the applicant has not replied to the Department’s s 56 of the Act, ‘Request for more information’ and notwithstanding having had his protection visa application refused by the Department has not further provided any additional information and/or evidence to the Department and/or the Tribunal in support of his claims.
The Tribunal notes in this regard, that notwithstanding the applicant having had his application for the visa refused by the Department, that he chose not to attend a hearing where he could have given evidence providing further details and also made arguments in support of his claims.
‘LGBTIQ+ in Vanuatu’
The applicant claims that he started a homosexual relationship on 10 January 2016, and that he and his partner were disliked by their community who claimed that their relationship was an embarrassment to the people of Vanuatu.
He further claimed to have experienced harm in Vanuatu because of his homosexuality and that he was teased, kicked and bullied. He claims that [in] January 2018, he and his partner were assaulted by 6 to 7 people on motorbikes wearing helmets and carrying pieces of wood who told them that ‘gays were not allowed in Vanuatu society’. He claims that this assault resulted in him receiving several head injuries.
He states in his application for the visa that he did not seek help in Vanuatu because the country does not allow homosexuality and he feared being jailed if he made such a report or complaint.
He further states he did not seek to relocate as there is nowhere in Vanuatu where homosexuals are allowed to stay.
The applicant claims to fear returning to Vanuatu as he will be called a creature, harmed, mistreated and killed because his is a homosexual and that the authorities will not protect him because same-sex relationships are illegal in Vanuatu.
The Tribunal notes that the applicant’s claims in this regard are general in nature and as noted above and below, lack any specific details as to the facts relied upon by the applicant in support of his claims, but for the purported date in 2016 of the commencement of his homosexual relationship and the purported date in 2018 of the attack upon himself and his partner.
In this regard, the Tribunal notes that the applicant has not provided any identifying information as to his partner, how they met, where and how their relationship developed, but to say that he formed a relationship with a ‘guy mate’.
The applicant has not provided any information and/or evidence as to how, and in what manner, they were disliked by their community, where and who was this community in Vanuatu, or how this community expressed to him, his partner and others that he and his partner were an embarrassment to the community because of their relationship.
Given the seriousness of these claims and in particular his claims that he was teased, kicked and bullied, together with the purported assault of he and his partner, it seems implausible to the Tribunal that if these claims were genuine that he could not or would not be able to provide detailed accounts of these matters as to when, how, how often and by who, he had been so teased, kicked, bullied and assaulted.
As to the most serious claim that he and his partner were purportedly assaulted by 6 to 7 people on motorbikes with helmets and pieces of wood which supposedly resulted in him receiving several head injuries. The Tribunal notes, as has been outlined above, that the applicant has not provided any detailed description of this assault but for the purported date. He has not provided any details as to the time or location or a detailed description of the 6 to 7 people and what actions each of them purportedly committed in so far as assaulting him and his partner. In view of the seriousness of this purported incident, which the applicant claims resulted in him having suffered several head injuries, it seems implausible and inconsistent with the applicant’s claims being genuine that the applicant has not (especially having had his application refused by the Department) provided a detailed description of this incident to the Tribunal. Additionally, in this regard, the applicant has not provided any information and/or evidence by way of a detailed description of the nature of his purported ‘several head injuries’ in so far as what they were, how they occurred and what if any treatment he received and the effects such injuries have had upon him. In this regard, the Tribunal further notes the lack of documentary information and/or evidence in so far as medical reports, treatment notes and/or medical discharge reports as to the applicant’s injuries and/or any treatment he and/or his partner may have received.
Further, as to the applicant’s claims of not having reported this assault for fear of being jailed such claims are inconsistent with the available country information as outlined above at paragraph 27, where under the heading of ‘SOGI Rights in Vanuatu’, it is reported that:
‘Vanuatu decriminalised same-sex sexual conduct in 2007. Furthermore, the existence of VPride and its legal registration as an official charitable organization in 2017 constitute significant achievements in the context of the continued strong influence of conservative Christian principles in Vanuatu society.’
Further under the heading of ‘Social acceptance of SOGI’ it is also reported that:
There have been some indications of a shift in social attitudes toward greater acceptance of SOGI individuals. A SOGI informant believed the situation had improved for her as she could live openly as a trans woman: “Comparing Vanuatu now to 15 years ago, oh no, I cannot [think about what it was like then]”
In this regard, the Tribunal prefers the country information as outlined above, as opposed to the applicant’s claims that same-sex relationships are illegal in Vanuatu.
Delay
Finally, the Tribunal notes that the applicant arrived in Australia [in] February 2023 in circumstances of having travelled to Australia to escape purported persecution arising from his homosexual relationship which he had formed on 10 January 2016 and after he and his partner had been assaulted [in] January 2018. However, notwithstanding these fears of harm, the applicant did not make his application for the protection visa until 28 October 2023, eight months and two weeks after his arrival in Australia.
The Tribunal finds that this delay is inconsistent with the applicant’s claims being genuine. In that regard, the Tribunal has considered Anadaraj Subramaniam v MIMA (1998) VG310 of 1997, where the Court held that even a three-month delay in lodging a protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant’s fears of persecution; and, SZRQA v MIBP [2013] FCA 962 at [17] where the Court found no want of logic in the Tribunal reasoning, in circumstances where the applicant had obtained his student visa fraudulently, that the applicant ought reasonably to have realised that he was vulnerable to deportation, and that if he were in genuine fear of persecution, he would not have delayed applying for a protection visa.
Therefore, on the evidence before it, and for the reasons outlined above, the Tribunal finds that the applicant claims lack credibility given the lack of details disclosed by the applicant as to the facts he has relied upon in support of his claims. As such, the Tribunal finds that the applicant does not face a real chance of persecution involving serious harm if he was in the reasonably foreseeable future to return to Vanuatu on account of his homosexual relationship.

Therefore, the Tribunal finds that the applicant’s claims of fear, in this regard, are not well-founded.
Refugee criterion
Based on the information before it, the Tribunal rejects the applicant’s claims of fear of persecution in their entirety and, having considered all of the applicant’s claims both individually and cumulatively, finds there has been no evidence of persecution or fears of persecution for the reasons provided in s 5J of the Act. Therefore, the Tribunal finds that the applicant does not face a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal finds that the applicant’s fears of persecution are not well-founded as required by s 5J of the Act and therefore, the applicant is not a refugee within the definition of s 5H of the Act.
For the reasons provided 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) of the Act.
Complementary protection
Having concluded the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has also considered whether the applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
As noted above, the Tribunal is not satisfied that any of the applicant’s claims meet the refugee criterion. It is for the same reasons that the Tribunal is not satisfied that the applicant meets the refugee criterion, that it is also not satisfied that the applicant meets the complementary protection criterion. Given the evidence before it, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vanuatu, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.
The Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Additional findings
Additionally, there is no suggestion that the applicant satisfies 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa.
As the Tribunal has found that the applicant does not meet the refugee and complimentary criteria and does not satisfy the criteria in s 36(2) of the Act the Tribunal has not found it necessary to assess s 36(3) of the Act as to whether the applicant has a right to enter and reside in a country other than Vanuatu.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
David James
Senior 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 2711

16 April 2024

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