2402159 (Refugee) - [2024] AATA 4334

2402159 (Refugee) [2024] AATA 4334 (8 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2402159

COUNTRY OF REFERENCE: Vanuatu
MEMBER:Siran Nyabally
DATE:8 August 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 August 2024 at 10:59am
CATCHWORDS
REFUGEE – protection visa – Vanuatu – political opinion – support for the national government – land resumption – physical assault – economic conditions – fear of detention – fear of killing – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 56, 65, 423, 426, 499
Migration Regulations 1994, Schedule 2
CASES
GLD18 v MHA [2020] FCAFC 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Subclass 866 Protection (Class XA) visa (protection visa) under s 65 of the Migration Act 1958 (Cth) (the Act).
APPLICATION FOR REVIEW
The applicant applied for the protection visa on 19 October 2023. The delegate refused to grant the protection visa on 23 January 2024.
The applicant applied for review of the delegate’s decision on 9 February 2024.
The applicant appeared before the Tribunal on 19 July 2024 to give evidence and present arguments.
CLAIMS AND EVIDENCE
Before the Department
Protection visa application
The applicant claims to be [an age]-year-old Vanuatu citizen who was born in [Village 1], Vanuatu. In her protection visa application the applicant claimed that she left Vanuatu to save herself from ‘the big group of community and local government.’ The applicant elaborated that, in summary:
·She experienced past harm in Vanuatu in the form of being forced to withdraw her support to the government. A local NGO questioned and harassed her.
·She sought help from the police, but instead of helping her, they tortured her because of her support to the national government.
·She attempted to move to another state of Vanuatu, but it was ‘most probably other is ruling party so it was hard to stay’ there.
·If she returns to Vanuatu, she will be imprisoned by the state government because she is seen as a challenger to the government and opposition party.
·The authorities will not protect her, as the authorities are harassing her and the people of her community.
·The applicant will not be able to relocate until the case is resolved and there is a compromise between both parties.
In support of her protection visa application, the applicant also provided a statement dated 19 October 2023 (the Statement), in which she elaborated on the above claims. In that Statement, the applicant claimed that she had worked…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read 2402159 (Refugee) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] AATA 4334
Decision Date: 8 August 2024

CaseChat Overview and Summary

This matter concerned an application for a protection visa by a citizen of Vanuatu. The applicant initially claimed to fear harm in Vanuatu due to her political opinion and a land dispute, alleging harassment by community members, local government, and police, and a risk of imprisonment. However, at the hearing before the Tribunal, the applicant recanted these claims, stating they were fabricated by a friend who assisted with her visa application. She asserted her true motivation for coming to Australia was to earn money to support her family and build a house, and that she did not fear harm in Vanuatu. The Tribunal was required to determine whether the applicant met the criteria for a protection visa, either under the refugee criterion or complementary protection grounds.

The Tribunal considered whether the applicant faced a real chance of suffering significant harm as a necessary and foreseeable consequence of being removed from Australia to Vanuatu. It also had to assess the credibility of the applicant's revised claims against the original claims made in her protection visa application, particularly in light of section 423A of the Act, which requires an unfavorable inference to be drawn from evidence not presented earlier unless a reasonable explanation is provided. The Tribunal was tasked with determining if the applicant's explanation for the discrepancy in her claims was reasonable and whether she had established a well-founded fear of harm.

The Tribunal accepted the applicant's explanation for not presenting her true claims in the initial application, finding it to be reasonable. Consequently, it did not draw any unfavorable inferences under section 423A. The Tribunal further found that the applicant did not have a real chance or risk of suffering serious or significant harm, either now or in the reasonably foreseeable future, based on her actual or implied political opinion or on the basis of a land dispute. The Tribunal was satisfied that Vanuatu was the applicant's receiving country and assessed her claims against that country. The decision under review was affirmed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

There is nothing before the Tribunal to suggest the applicant has citizenship of any other country, or that she has any right to enter and/or reside in any third country. Based on the information before it, the Tribunal is satisfied s 36(3) of the Act does not apply. The Tribunal is satisfied that Vanuatu is her receiving country and has assessed her claims against that country. The applicant’s personal background The applicant gave evidence that she was born and raised in [Village 1], [Province 1]. The applicant’s parents and [number] of her siblings live in Vanuatu, and her remaining [siblings] live in Australia. The applicant has [number] children, who all reside in Vanuatu. [Genders and ages specified.] The applicant’s children are currently being cared for by her parents and her neighbour/maid. The applicant attended school in [Village 1] until halfway through [grade], then was sent to Port Vila to find work. She worked as a shopkeeper for various employers between 2004 and 2023 before moving to Australia. The Tribunal accepts the above matters to be true.New claims At the hearing, the applicant informed the Tribunal that she no longer relied on the claims contained in her protection visa application. The applicant explained that she had come to Australia to earn money to pay for her children’s school fees, as she was a single mother and unable to support her family on the income she earned as a cashier in Vanuatu. The applicant travelled to Australia in February 2023 as part of the seasonal worker scheme. Upon arrival, she was told by a friend that she could apply for an ‘866 visa’. Her friend helped her complete the application but did not tell her what he had written. When the applicant received the dismissal decision she asked the same friend what had happened. He told the applicant that her visa had been ‘cancelled’, and that he would apply for another visa for her if she paid him money. On 20 May 2024 this friend provided the applicant with a copy of her protection visa application, which was when she first learned of her claims for protection. The applicant was ‘shocked’, and had come to the hearing to tell the Tribunal the ‘truth’ about her case. The applicant informed the Tribunal that none of the claims in the protection visa application were true, and that she was not seeking protection from on the basis of her political opinion and/or as a result of a land dispute. The applicant claimed that the real reason that she had applied for a visa was to earn money to build a house and to provide for her family in Vanuatu, and that she did not fear harm in Vanuatu. Section 423A of the Act requires the Tribunal to draw an inference unfavorable to the credibility of claims or evidence not raised or presented before the primary decision was made, unless the Tribunal is satisfied there is a reasonable explanation as to why that occurred. The Tribunal is prepared to accept as reasonable the applicant’s explanation for why she did not present her real claims in her protection visa application and does not draw any unfavourable inferences. The Tribunal also finds that the applicant does not have a real chance or risk of serious or significant harm on the basis of her actual or implied political opinion, or on the basis of a land dispute, now or in the reasonably foreseeable future.The applicant’s claims for protection

Evidence

Evidence Before The Court

The applicant appeared before the Tribunal on 19 July 2024 to give evidence and present arguments. CLAIMS AND EVIDENCEBefore the DepartmentProtection visa application The applicant claims to be [an age]-year-old Vanuatu citizen who was born in [Village 1], Vanuatu. In her protection visa application the applicant claimed that she left Vanuatu to save herself from ‘the big group of community and local government.’ The applicant elaborated that, in summary: ·She experienced past harm in Vanuatu in the form of being forced to withdraw her support to the government. A local NGO questioned and harassed her. ·She sought help from the police, but instead of helping her, they tortured her because of her support to the national government. ·She attempted to move to another state of Vanuatu, but it was ‘most probably other is ruling party so it was hard to stay’ there. ·If she returns to Vanuatu, she will be imprisoned by the state government because she is seen as a challenger to the government and opposition party. ·The authorities will not protect her, as the authorities are harassing her and the people of her community. ·The applicant will not be able to relocate until the case is resolved and there is a compromise between both parties. In support of her protection visa application, the applicant also provided a statement dated 19 October 2023 (the Statement), in which she elaborated on the above claims. In that Statement, the applicant claimed that she had worked as a farmer in Port Vila and operated a small farming [business] with two business partners and her [Relative A]. Their land was ‘covered by [Mr A] for small [business 1].’ ‘They tried to cover by temple and converted on that name. Means they were stilled [sic]my land.’ The applicant and her partners opposed the [business 1] development, and in response, ‘they’ attacked the applicant and her [Relative A] and tried to kill them. The applicant approached the police to lodge a First Investigation Report (FIR), but local politicians supporting the opposition party pressured the applicant and her partners to withdraw the FIR. The applicant and her partners took the land dispute to court. The proceedings lasted around 6 to 8 years, but the applicant and her partners obtained a judgment in their favour. However, [Mr A] and a few politicians ‘start to attack on me and my [Relative A]’, and she was beaten by ‘some people.’ The applicant claimed to have returned to her ‘native village but was spotted there also.’Supporting documents In addition to her protection visa application form and accompanying statement, the applicant provided the Department with a copy of the biodata page of her Vanuatu passport. Protection visa application interview The Department did not invite the applicant to attend an interview.Delegate’s decision The delegate refused to grant the visa on the basis that the applicant’s claims were generic and lacked any substantial detail. The delegate noted the applicant had not responded to a Department letter requesting more information about her claims for protection, issued pursuant to s 56 of the Act. The delegate assessed that the applicant’s failure to respond to the Department letter ‘suggests [her] situation is not as described’ in the protection visa application form.

Decision

Reasons for decision

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Country of nationality The applicant has provided a copy of her passport from Vanuatu. She has consistently claimed to be from Vanuatu. There are no apparent concerns with the applicant’s identity.[1] The Tribunal is satisfied that the applicant is a citizen of Vanuatu.[1] The protection visa application erroneously lists the applicant’s name as ‘[Alias A]’. At the hearing the applicant confirmed that this was a mistake, and her name is, and has always been, [the applicant’s name]. There is nothing before the Tribunal to suggest the applicant has citizenship of any other country, or that she has any right to enter and/or reside in any third country. Based on the information before it, the Tribunal is satisfied s 36(3) of the Act does not apply. The Tribunal is satisfied that Vanuatu is her receiving country and has assessed her claims against that country. The applicant’s personal background The applicant gave evidence that she was born and raised in [Village 1], [Province 1]. The applicant’s parents and [number] of her siblings live in Vanuatu, and her remaining [siblings] live in Australia. The applicant has [number] children, who all reside in Vanuatu. [Genders and ages specified.] The applicant’s children are currently being cared for by her parents and her neighbour/maid. The applicant attended school in [Village 1] until halfway through [grade], then was sent to Port Vila to find work. She worked as a shopkeeper for various employers between 2004 and 2023 before moving to Australia. The Tribunal accepts the above matters to be true.New claims At the hearing, the applicant informed the Tribunal that she no longer relied on the claims contained in her protection visa application. The applicant explained that she had come to Australia to earn money to pay for her children’s school fees, as she was a single mother and unable to support her family on the income she earned as a cashier in Vanuatu. The applicant travelled to Australia in February 2023 as part of the seasonal worker scheme. Upon arrival, she was told by a friend that she could apply for an ‘866 visa’. Her friend helped her complete the application but did not tell her what he had written. When the applicant received the dismissal decision she asked the same friend what had happened. He told the applicant that her visa had been ‘cancelled’, and that he would apply for another visa for her if she paid him money. On 20 May 2024 this friend provided the applicant with a copy of her protection visa application, which was when she first learned of her claims for protection. The applicant was ‘shocked’, and had come to the hearing to tell the Tribunal the ‘truth’ about her case. The applicant informed the Tribunal that none of the claims in the protection visa application were true, and that she was not seeking protection from on the basis of her political opinion and/or as a result of a land dispute. The applicant claimed that the real reason that she had applied for a visa was to earn money to build a house and to provide for her family in Vanuatu, and that she did not fear harm in Vanuatu.

Ratio Decidendi

Legal Principle Established

If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.Mandatory considerations In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds. The applicant does not claim to be a member of the same family unit of a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.Country of nationality The applicant has provided a copy of her passport from Vanuatu. She has consistently claimed to be from Vanuatu. There are no apparent concerns with the applicant’s identity.[1] The Tribunal is satisfied that the applicant is a citizen of Vanuatu.[1] The protection visa application erroneously lists the applicant’s name as ‘[Alias A]’. At the hearing the applicant confirmed that this was a mistake, and her name is, and has always been, [the applicant’s name]. There is nothing before the Tribunal to suggest the applicant has citizenship of any other country, or that she has any right to enter and/or reside in any third country. Based on the information before it, the Tribunal is satisfied s 36(3) of the Act does not apply. The Tribunal is satisfied that Vanuatu is her receiving country and has assessed her claims against that country. The applicant’s personal background The applicant gave evidence that she was born and raised in [Village 1], [Province 1]. The applicant’s parents and [number] of her siblings live in Vanuatu, and her remaining [siblings] live in Australia. The applicant has [number] children, who all reside in Vanuatu. [Genders and ages specified.] The applicant’s children are currently being cared for by her parents and her neighbour/maid.