2402240 (Refugee)

[2024] AATA 2946

2402240 (Refugee) [2024] AATA 2946 (16 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2402240

COUNTRY OF REFERENCE:                   Vanuatu

MEMBER:Wayne Pennell

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 3:49pm

CATCHWORDS

REFUGEE – protection visa – Vanuatu – natural disasters – employment – lack of government financial resources – economic conditions – delay in applying for protection – state protection – return visits to Vanuatu – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 420, 423-425, 499
Migration Regulations 1994, Schedule 2

CASES

ABT16 v Minister for Home Affairs [2019] FCA 836
Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
Kavan v Minister for Immigration and Multicultural Affairs [2000] FCA 370
Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33
Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559
Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) ALD 346
Zhang Su Rong v Refugee Review Tribunal and Anor [1997] FCA 423

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 a review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) to refuse to grant the applicant a protection visa under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]

   [1]The delegate’s decision of 15 January 2024.

2. The applicant, who is a citizen of Vanuatu, applied for a protection visa.[2] The delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed to Vanuatu, there was a real risk she would suffer significant harm, and her application was refused on the basis that she was not a refugee as defined by the Act[3] and therefore she was not a person in respect of whom Australia has protection obligations.[4]

   [2]The Department of Home Affairs received the applicant’s application on 26 October 2023.

   [3]Migration Act 1958 (Cth), s 5H.

   [4]Migration Act 1958 (Cth), s 36(2)(a), s 36(2)(aa).

3. The applicant filed an application (‘review application’) with the Tribunal to review the delegate’s decision.[5] The applicant was not represented throughout the review process.

   [5]The Tribunal received the applicant’s review application on 11 February 2024.

   CRITERIA FOR A PROTECTION VISA

4. The measures for a protection visa are set out in the Act[6] and Schedule 2 to the Migration Regulations1994 (Cth). An applicant for the visa must meet one of the alternative criteria as provided in the Act.[7] That is, the applicant 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.

   [6]Migration Act 1958 (Cth), s 36.

   [7]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).

5. The Act 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, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[8]

   [8]Migration Act1958 (Cth), s 36(2)(a).

6. 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.[9] 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.[10]

   [9]Migration Act1958 (Cth), s 5H(1)(a).

   [10]Migration Act1958 (Cth), s 5H(1)(b).

7. The Act also provides that 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.[11] 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 the Act, which are extracted in the attachment to this decision.[12]

   [11]Migration Act 1958 (Cth), s 5J(1).

   [12]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.

8. If a person is found not to meet the refugee criterion in the Act,[13] that person may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (‘the complementary protection criterion’).[14] 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 expressly provided in the Act, which are extracted in the attachment to this decision.[15]

   [13]Migration Act 1958 (Cth), s 36(2)(a).

   [14]Migration Act 1958 (Cth), s 36(2)(aa).

   [15]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).

9. The Act makes provision for and clearly defines that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[16]

   [16]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).

10. Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[17]

    [17]Migration Act 1958 (Cth), s 36(2B).

    COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY

11. The applicant claims to be a citizen of Vanuatu and provided a copy of her passport to the Department to authenticate this claim. The Tribunal accepts her identity and based on the evidence she provided, and in the absence of any other evidence to the contrary, the Tribunal finds that Vanuatu is her country of nationality and her receiving country for the purposes of the refugee and complementary protection assessments.[18]

    [18]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).

12. Based on the evidence, the Tribunal is satisfied the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that she is not excluded from Australia’s protection obligations.[19]

    [19]Migration Act 1958 (Cth), s 36(3).

    MANDATORY CONSIDERATIONS

13. In accordance with Ministerial Direction No. 84 made under the Act,[20] the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and the 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.

    [20]Migration Act 1958 (Cth), s 499.

    BACKGROUND INFORMATION

14. On 25 January 2023, the applicant was granted a Temporary Work (International Relations) (subclass 403) visa (‘work visa’). That work visa was valid until 26 October 2023. Subject to the provisions of her work visa, she arrived in Australia [in] January 2023 and to date, she has remained onshore.

15. Because the applicant has not engaged with the Tribunal, other than lodging a review application and returning the hearing invitation template, very little is known about her except that she is from Vanuatu. Her application suggested that she had never married and there is no reference to her education or qualifications. She nominated that she was unemployed in Vanuatu between [specified year] to when she left to travel to Australia [in] January 2023.

16. Since 2011, the applicant has had a long association with travelling to Australia and returning to Vanuatu. The particulars of her migration history are:

DATE	EVENT
16 December 2011	Granted a Tourist visa.
[December] 2011	Arrived in Australia.
[March] 2012	Departed Australia.
8 December 2017	Granted a Visitor visa. Visa valid until 8 December 2020.
[December] 2017	Arrived in Australia.
[January] 2018	Departed Australia.
02 February 2022	Granted a Temporary Work (International Relations) (subclass 403) visa. Visa valid until 2 November 2022.
[February] 2022	Arrived in Australia.
[September] 2022	Departed Australia.
25 January 2023	Granted a Temporary Work (International Relations) (subclass 403) visa. Visa valid until 26 October 2023.
[January] 2023	Arrived in Australia.
26 October 2023	Lodged application for a Protection visa.
02 November 2023	Bridging visa granted in conjunction with the Protection visa application.

1. In her application for a Protection visa, the applicant provided the following information in regard to her claims for protection. Extracted from her application and inserted below are those claims and explanations.

Provide reasons why this applicant left that country or those countries:

I am determined to escape the constant threat of natural disasters in my current area and I've set my sights on the seasonal work  programs in Australia. That's why I'm here, exploring opportunities for a fresh start in a safer environment and to participate in the Australian seasonal work program

Did this applicant experience harm in that country or those countries?

No

Did this applicant move, or try to move, to another part of that country or those countries to seek safety?

Yes

Give details including:

·   where this applicant tried to move

·   why this applicant was unable to move

·   where this applicant moved to and what happened.

I have harbored a deep-seated desire to make a life-changing move for quite some time now. Unfortunately, the job market in Vanuatu has proven to be exceptionally challenging for me to navigate. Despite my relentless efforts, I have been unable to secure a job that would not only support me financially but  also provide the means for a successful relocation. This prolonged job search has left me in a rather precarious situation. To sustain myself, I've had to depend on the support of my family, which I am immensely grateful for. However, it has become increasingly evident that relying solely on their assistance is not a sustainable long-term solution. The financial resources provided by my family are insufficient to cover the costs associated with relocating to a new place, which I've been yearning for to create a better life for myself. I remain committed to my goal of making this move, and I am actively seeking ways to overcome these financial obstacles and achieve the dream I've held onto for so long. Your understanding and guidance in this endeavor would mean a lot to me. Thank you for considering my situation and aspiration

Explain what the applicant thinks will happen to them if they return to that country or those countries:

I acknowledge that I will inevitably confront the ongoing challenges posed by natural disasters, as they have been occurring with increasing frequency in recent years. It has become evident that these disasters are becoming a more common occurrence, and it is vital for us to prepare and adapt to the changing landscape of environmental risks

Does this applicant think they will be harmed or mistreated if they return to that country or countries?

No

Give details about why this applicant thinks the authorities could not, or would not, protect them 

The government often lacks the financial resources necessary to fully protect us, and when a natural disaster strikes, their ability to provide assistance is severely constrained. This leaves us in a difficult situation, struggling to survive without the necessary financial support

Does this applicant think they would be able to relocate within that country or those countries to an area where they would not be harmed?

Yes

Give details as to where this applicant could relocate.

In Australia, I have found a profound sense of happiness and tranquility. The absence of constant worry about natural disasters, the assurance of job opportunities, and the overall safety of this country have granted me a profound sense of comfort and contentment. These qualities have instilled in me a deep longing to make this place my permanent home, allowing me to embark on a new journey and start a second life where I can flourish and thrive in this idyllic setting

1. In summary, those claims made by the applicant are that she left Vanuatu to escape the threat of natural disasters, and she came to Australia to participate in the Australian Seasonal Work Program. Because of the challenging job marker in Vanuatu, she faces economic hardship as she cannot obtain employment that provides adequate financial support to her. She has had to depend on the support of her family, however their assistance is not a sustainable long-term solution. The financial support provided by her family is insufficient to cover the costs associated with relocating to a new area, and if she returned to Vanuatu she would be faced with challenges posed by frequently occurring natural disasters. She also claimed that the Vanuatu government lacks the financial resources in order to fully protect her, and the government’s ability to provide assistance is severely constrained.

2. Provided with her application were four items of country information, which are:

   (a)Undated article from the Economic and Social Commission for Asia and the Pacific about two destructive category four cyclones in Vanuatu;

   (b)Photograph dated 4 March 2023 from ABC News titled ‘Tropical Cyclone Kevin brings destructive winds and heavy rain to Vanuatu’s capital Port Vila;

   (c)Details of an earthquake occurring on 18 October 2023 in Solomon Islands. Source unknown; and

   (d)Undated photograph titled ‘All clear given in Vanuatu, Lola downgraded to Ex-Tropical Cyclone’, source unknown.

3. On 2 November 2023, the Department wrote to the applicant and acknowledged receiving her application. In that letter, she was invited to an appointment with the Department on 21 November 2023. The purpose of that appointment was for the applicant to provide her personal identifying particulars. The letter also reminded the applicant that as her application form stipulated, all claims, supporting documentation and evidence should have been provided when she lodged her application. However, it was suggested to her that she may take to the scheduled appointment any additional information she would like considered by the Department. She did not provide any additional information, evidence or material to the Department.

4. After assessing the applicant’s application and her claims, on 15 January 2024 the delegate made a decision to refuse her application and she was provided with a copy of the delegate’s decision record. Subsequent to that, on 11 February 2024 the applicant lodged an application with the Tribunal to review the delegate’s decision (‘review application’). When lodging that review application, she did not provide the Tribunal with a copy of the delegate’s decision record.

5. In acknowledging the receipt of the applicant’s review application, the Tribunal sent her a letter on 21 February 2024 to here and advised that if she wished to provide any material or written arguments for the Tribunal’s consideration, then she should do so as soon as possible. It was also identified to her that in order to assist the Tribunal in processing her application, she was asked to provide a copy of the delegate’s decision record. She has never provided the Tribunal with any supporting material, evidence or information, and nor did she provide a copy of the decision record.

6. On 22 March 2024, the Tribunal sent an email to the applicant and enclosed a letter advising her that the Tribunal had considered all the available material for her case, but was unable to make a favourable decision on that information alone. She was invited to attend a review hearing scheduled for 9 May 2024 to give evidence and present her arguments. Provided to her was a ‘Response to hearing invitation’ template and she was asked to complete the template and return it to the Tribunal within seven days. 

7. Because the applicant had not provided the Tribunal with the delegate’s decision record, on the same day (22 March 2024), the Tribunal sent an email to her and enclosed a letter pursuant to section 424A of the Act (‘section 424A invitation’). It was explained to her that because the Tribunal was in possession of certain information which the Tribunal considers would, subject to her comments or response, be the reason, or part of the reason, for affirming the decision under review, the Tribunal was required by the Act to invite her to comment on or respond to that certain information.

8. It was further explained that the Tribunal was required to give to her, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information the Tribunal considered would be the reason, or part of the reason, for affirming the decision that is under review; and to ensure, as far as is reasonably practicable, that she understood that the certain information was relevant to the review. The consequences of that certain information being relied on in affirming the decision under review were explained to her; and she was invited to comment on or respond to that certain information.

9. Described in the section 424A invitation were the claims which the applicant relied upon. Also described were the delegate’s findings in regard to the delegate’s assessment of the claims she made. Particular attention was paid by the Tribunal in explaining to the applicant that the consequences of that information being relied upon in affirming the decision under review would be that the Tribunal affirms the decision and she was invited to comment on or respond to the certain information. It was explained to her that if she decided to make a comment or a response, that should be provided to the Tribunal by 5 April 2024, and if the comment or response was in a language other than English, then it must be accompanied by an English translation from an accredited translator.

1. Her attention was drawn to the importance of providing her written comments or response by 5 April 2024. It was expressed to her that she could ask the Tribunal for an extension of time in which to provide her comments or response, and if she made such a request, it must be received by the Tribunal by 5 April 2024, and she must state the reason why the extension of time is required.

2. Finally, the applicant was advised that if the Tribunal did not receive her comments or response within the period allowed or as extended, the discretion was available to the Tribunal to make a decision on the review without taking any further action to obtain her views on the information and she would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

3. The applicant did not respond to or make any comment in respect to the section 424A invitation within the appropriate allocated time of 5 April 2024, nor did she seek an extension of time to provide a response or to make comment.

4. On 8 April 2024, a detailed letter was emailed to her outlining the history of her application to the Department, as well as her review application lodged with the Tribunal. The letter also explained the consequences of her not responding to the section 424A invitation. Because she had not responded within the specified timeframe, or asked for an extension of time, the Tribunal had decided to proceed to make a decision in respect to her application for a Protection visa without taking further steps to obtain her response or comments, and she had lost her right to appear before the Tribunal.[21] She was also advised that the review hearing scheduled for 9 May 2024 had been cancelled.

   [21]Migration Act 1958 (Act), s 424C(2); s 425(3).

   DELAY IN LODGING APPLICATION

5. In a period spanning 12 years, the applicant has travelled to Australia on four occasions. On her fourth and last visit to Australia, she had been granted a work visa on 25 January 2023, and she arrived [soon afterwards]. A period of nine months passed before she made her application for a Protection visa, with that application being lodged on the very same day that her work visa was expiring.

6. The Tribunal is aware that a delay in applying for protection should not be the sole reason for doubting an applicant’s claims. There should be other reasons to support a finding that an applicant’s claims are not credible and the significance of any delay will depend upon the particular circumstances surrounding the delay and the reasons given for the delay.[22]

   [22]Selvadurai v Minister for Immigration and Ethnic Affairs (1994) ALD 346: Anandaraj Subramanian v Minister for Immigration and Multicultural Affairs, unreported, Federal Court of Australia, Carr J, 10 March 1998.

7. Upon review of the Department’s file, the Tribunal is satisfied (and so finds) that after filing her application for a Protection visa, she did not engage with the Department so far as providing any evidence, information or material to support her claims or to explain why there had been the significant delay of over four years in making her application.

8. The Tribunal has given careful consideration to the delay of nine months between her last arrival in Australia to when she made her application for a Protection visa, and the Tribunal is satisfied (and so finds) that under the circumstances relating to the features of this case, that delay is a significant delay. In respect to any consideration given by the Tribunal about that significant delay, guidance is found by the determinations reached in Anadaraj Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997 (‘Subramaniam‘) where the Court held that even a three-month delay in lodging a protection visa application is a legitimate matter to consider when assessing the genuineness or depth of an applicant’s fear of persecution.

9. When considering the number of return trips the applicant made from Vanuatu to Australia, along with the timing of her application as it is associated with the expiry of her work visa, the Tribunal is satisfied that the genuineness or depth of her claimed fear of persecution should she return to Vanuatu is not support by the known facts of this matter. When the significant delay is weighed against all the known facts of this matter, the Tribunal is satisfied (and so finds) that the significant delay can support an adverse credibility finding as well as a finding that the applicant does not have a well-founded fear of harm because a significant delay is not behaviour indicative of someone who fears for their physical safety.[23]

   [23] ZHANG SU RONG V REFUGEE REVIEW TRIBUNAL AND ANOR [1997] FCA 423; KAVAN V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS [2000] FCA 370, [22].

   CONCLUSION AND REFUGEE FINDINGS

10. The very nature of a review hearing before the Tribunal is that the hearing is conducted from the beginning (anew) and the Tribunal is to review the material, information and evidence made available to it. The Tribunal is to consider all of that material, information and evidence afresh and make its own assessment and determination as to whether the applicant meets the criteria for the granting of a Protection visa. The Tribunal is not bound by technicalities, legal forms or rules of evidence; and must act according to substantial justice and the merits of the case.[24]

    [24]Migration Act 1958 (Cth), s 420.

11. Although the very nature of a review hearing is inquisitorial, and the Tribunal can seek out evidence it requires in order to reach a determination, however it has no obligation to seek out evidence to support the applicant’s claims, even though the Tribunal is entitled to do so.[25]

    [25]Migration Act 1958 (Cth), s 5AAA; ABT16 v Minister for Home Affairs [2019] FCA 836, [28].

12. The Tribunal is not required to make the applicant’s case for her. It is her responsibility to specify all particulars of her claims to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish her claims. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of her claims, or to establish or assist in establishing her claims.[26] Nor is the Tribunal required to accept uncritically any and all the allegations made by the applicant.[27]

    [26]Migration Act 1958 (Cth), s 5AAA.

    [27]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.

13. The mere fact that the applicant claims she has a fear of persecution for a particular reason does not establish either the genuineness of her asserted fear or that it is well-founded or that it is for the reason claimed. Similarly, because she claims that she will 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 the statutory elements are made out.

14. The definition of a refugee as provided within section 5H(1) of the Act explains that a refugee is a person who is outside their country of nationality or former habitual residence and is unable or unwilling to avail themselves of the protection of their country of nationality or to return to their country of former habitual residence due to a well-founded fear of persecution. The term ‘well-founded fear of persecution’ is defined in section 5J of the Act, and includes a requirement in section 5J(1)(a) of the Act that the person fears being persecuted for reasons

15. The issue in this matter is whether there are substantial grounds for believing that, as a foreseeable consequence of the applicant being removed to Vanuatu, there exists a real risk that she will suffer significant harm or there is a real chance she would suffer serious harm on the grounds of her not being able to secure employment with sufficient wages to support herself and her family; and the economic circumstances of Vanuatu means that she could not secure employment, or the employment that she could find was not adequate enough to provide for her basic needs. 

16. The applicant has been given the opportunity by both the Department and the Tribunal to provide all of the details of her protection claims. The application form that she completed informed her that she should provide all of her claims for protection and all documentation or other evidence to support her claims. On 18 December 2023, the Department sent a letter to the applicant acknowledging receiving her valid application. In that letter she was advised that she could provide additional information relating her claims, and she was advised how she could provide this to the Department. When she filed her review application with the Tribunal, the Tribunal wrote to her on 21 February 2024 and advised that if she wished to provide material or written arguments for the Tribunal to consider, then she should do so as soon as possible. She has provided no material, information or evidence to either the Department or the Tribunal.

17. Although she has not provided the Tribunal with any material, evidence or information, the Tribunal notes that within the Department’s file are the articles of country information described in paragraph 19 of these Reasons. Those items were lodged with the Department by the applicant at the same time her application for a Protection visa was lodged.

18. When careful consideration is provided to the contents of the articles and photographs, the appear to relate to natural disasters in the pacific region including Vanuatu. The Tribunal is satisfied (and so finds) that they are not articles or photographs which provides evidence that the applicant herself was specifically targeted for persecution because of any of the reasons outlined in section 5J(1)(a) of the Act and they are given no weight so far as the determination of this matter.

19. Returning to the applicant’s claims, it is noted that the claims she relies upon relate specifically to her experiencing economic hardship should she return to Vanuatu. The Tribunal finds that economic hardship does not fall within the ambit of ‘persecution’ as defined in section 5J(1)(a) of the Act in that she has a well-founded fear that if she returns to Vanuatu she will be persecuted because of her race, religion, nationality, membership of a particular social group or political opinion.

20. After careful consideration of all the material available, including the material she provided with her application, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution as she does not fear that if she returns to Vanuatu she will be persecuted for reasons prescribed in section 5J(1)(a) of the Act. Therefore the Tribunal is not satisfied that she is a refugee as defined in section 5H(1) of the Act and accordingly, the Tribunal finds that she is not a person in respect of whom Australia has protection obligations as provided for in section 36(2)(a) of the Act.

    COMPLEMENTARY PROTECTION CONSIDERATIONS

21. Having already concluded that the applicant does not meet the refugee criterion as provided by the Act,[28] the Tribunal has considered the alternative criterion.[29] In considering the alternative criterion, an assessment was undertaken as to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed to Vanuatu, there is a real risk that she will suffer significant harm as it is defined in the Act.[30]

    [28]Migration Act 1958 (Cth), s 36(2)(a).

    [29]Migration Act 1958 (Cth), s 36(2)(aa).

    [30]Migration Act 1958 (Cth), s 36(2A).

22. Significant harm is defined within section 36(2A) of the Act as:

    (a)the person will be arbitrarily deprived of his or her life;

    (b)the death penalty will be carried out on the person;

    (c)the person will be subjected to torture;

    (d)the person will be subjected to cruel or inhuman treatment or punishment; or

    (e)the person will be subjected to degrading treatment or punishment.

23. Section 36(2)(aa) of the Act provides that the relevant risk threshold in assessing complementary protection is that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia, there is a real risk that she will suffer significant harm if returned to Vanuatu. The Courts have adopted the principle that the test for ‘real risk’ imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[31]

    [31]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.

24. Real chance was also discussed in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and the High Court said the expression ‘a real chance’ clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring.[32] The question of ‘real chance’ is the test to be applied on an application for a protection visa under the Act when considering whether the applicant has a well-founded fear that they will face persecution for a Convention reason if returned to their country of nationality.[33] A person’s fear of persecution must be well-founded on the basis that there is a real chance that they will be persecuted if they return to their country of nationality. A real chance is one that is not remote, regardless of whether it is less or more than fifty per cent.[34]

    [32]Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 citing Boughey v The Queen (1986) 161 CLR 10, 21.

    [33]Migration Act 1958 (Cth), s 36(2)(a); Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 citing Regina v Home Secretary; Ex parte Sivakumaran (1988) AC 958.

    [34]Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.

25. When carefully assessing the claims made by the applicant, the Tribunal is not satisfied the harm the applicant fears could constitute either of the forms of significant harm as defined in section 36(2A) of the Act. It is clear from the evidence in this matter that she has not claimed that she will be arbitrarily deprived of her life, or that the death penalty will be carried out on her or that she will be subjected to torture. Further to this, there is no information or evidence made available to the Tribunal to indicate that she would suffer any of these forms of ‘significant harm’ as defined in section 36(2A) of the Act if she returned to Vanuatu such as being subjected to torture; or cruel or inhuman treatment or punishment; or degrading treatment or punishment.

26. The real risk she claims would cause her to suffer significant harm is one of economic hardship and the Tribunal is satisfied (and so finds) that this is something which is faced by the population of Vanuatu generally and is specifically targeted towards the applicant and not specifically faced by the applicant personally.[35]

    [35] Migration Act 1958 (Cth), s 36(2B)(c).

27. Having considered all of the applicant’s claims, individually and cumulatively, along with the evidence, the Tribunal does not accept that if she returns to Vanuatu now or in the reasonably foreseeable future she will be arbitrarily deprived of life, the death penalty will be carried out on her, or she will be subjected to torture or to cruel or inhuman treatment or punishment, and nor will she be subjected to degrading treatment or punishment.

    CONCLUSION: REFUGEE CRITERION

28. Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds that there is not a real chance she will be persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group in Vanuatu. The Tribunal finds that her fear of persecution is not well-founded as required by section 5J of the Act and, therefore, she is not a refugee within the meaning of section 5H of the Act.

    CONCLUSION: COMPLEMENTARY PROTECTION CRITERION

29. Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of her being removed from Australia to Vanuatu, she will be exposed to a real risk of suffering significant harm.

    OVERALL CONCLUSION

30. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under section 36(2)(a) of the Act.

31. Having concluded that the applicant does not meet the refugee criterion in section 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in section 36(2)(aa). The Tribunal is not satisfied that she is a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.

32. There is no suggestion that the applicant satisfies section 36(2) based on being a member of the same family unit as a person who satisfies section 36(2)(a) or section 36(2)(aa) of the Act and who holds a protection visa. Accordingly, she does not satisfy the criteria in section 36(2) of the Act.

    DECISION

33. The Tribunal affirms the decision not to grant the applicant a Protection visa.

    Wayne Pennell
    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.

    …