2401789 (Refugee)

Case [2024] AATA 2711

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

  1. 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).

  2. 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…

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AGLC
2401789 (Refugee) [2024] AATA 2711
Case
[2024] AATA 2711
Decision Date

CaseChat Overview and Summary

This matter concerned an application for review of a decision to refuse a protection visa. The applicant, who identified as homosexual, claimed a fear of persecution in Vanuatu due to his sexual orientation, alleging he had been physically assaulted and feared detention and death if returned. The primary legal issues before the court were whether the applicant had a well-founded fear of persecution for one of the five prescribed reasons under section 5J(1) of the Migration Act 1958 (Cth), and if not, whether there were substantial grounds to believe that, as a necessary and foreseeable consequence of removal to Vanuatu, the applicant faced a real risk of suffering significant harm as defined in section 36(2A) of the Act.

The court considered the documentary evidence, including the applicant's protection visa application and a request for further information from the Department. This request highlighted concerns about the genuineness of the applicant's claims due to a significant delay in lodging the application, a lack of detail regarding his claims of harm, and insufficient evidence to support his identification as homosexual or the alleged attack. The delegate had found the claims generic and lacking credibility, and therefore was not satisfied the applicant met the criteria for a refugee or faced a real risk of significant harm. The Tribunal subsequently invited the applicant to a review hearing, providing notice via correspondence and SMS reminders.

Despite these invitations, the applicant failed to attend the scheduled review hearing on 15 April 2024. The Tribunal made multiple attempts to contact the applicant by telephone on the morning of the hearing, but these calls were terminated by the recipient. Consequently, the Tribunal proceeded to make a decision based on the available information. The court affirmed the delegate's decision, finding that the applicant had not provided sufficient information or evidence to substantiate his claims of a well-founded fear of persecution or a real risk of significant harm upon return to Vanuatu. The applicant's failure to attend the hearing and provide further evidence was a critical factor in this determination.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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 lodgementIn 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 compositionPlease 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 detailYour 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 indicatingyou 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

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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 considerationsIssues 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 lodgementIn 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 compositionPlease 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 detailYour 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 indicatingyou 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