2402392 (Refugee)
[2024] AATA 2504
•5 June 2024
2402392 (Refugee) [2024] AATA 2504 (5 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2402392
COUNTRY OF REFERENCE: Vanuatu
MEMBER:Damien Power
DATE:5 June 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 05 June 2024 at 1:50pm
CATCHWORDS
REFUGEE – protection visa – Vanuatu – membership of particular social group – homosexual man – two-year relationship – forced to leave family and evicted by local authority – claim not raised at hearing and stated not to be the case – working in Australia to support family – possibility of family killing him for returning without enough money – conflicting statements – country information – recovery from cyclones and COVID – work history and opportunities for employment – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 February 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Vanuatu, applied for the visa on 2 November 2023. The delegate refused to grant the visa on the basis that the applicant was not a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal on 3 June 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bislama and English languages.
CLAIMS AND EVIDENCE
Background
The applicant is a male aged [Age] years of age from Port Vila in Vanuatu. His entire family, but for one of his sisters, still resides in Vanuatu.
The applicant speaks, reads and writes Bislama and speaks some English.
Evidence before the Department
Migration History
The applicant states that he came to Australia on a subclass 403 (Temporary work) visa. The applicant arrived in Australia [in] September 2021.
On 2 November 2021, the applicant lodged a valid application for a (subclass XA-866) protection visa.
On 8 February 2024, the delegate made a decision to refuse the applicant a protection visa.
Protection visa application
The applicant’s protection visa application provides the following information.
The applicant left Vanuatu because he was in a gay relationship for two years. The community forced him to leave his family because of his relationship.
He was evicted by the local authority because of he was involved in a gay relationship for two years. His family members hate him and told him to leave.
His country cannot protect him because he broke a bylaw against having gay relationships. His country does not allow such relationships.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
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.
Nationality
The applicant provided a copy of the bio-data pages of his Vanuatuan passport to the Department. The delegate was satisfied as to the applicant’s identity and nationality. The applicant has provided a consistent account of their claimed identity. In the absence of evidence to the contrary, I am satisfied as to the applicant’s identity and that their receiving country for the purposes of assessing their claims for protection is Vanuatu. There is no evidence that the applicant is a national of or has a right to enter and reside in any country other than Vanuatu.
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. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant was asked at the outset of the hearing why he feared returning to Vanuatu. The applicant stated that he wanted to stay in Australia to support his family after the problems caused by the cyclone in Vanuatu. Compared to his job in Vanuatu, the pay here in Australia was much better and he wanted to stay and work for a while and then go back home.
The applicant was asked if those were all his claims for protection. The applicant again stated that his pay was much better here in Australia than it was in Vanuatu. He again said he wanted to stay here and support his family and then go back home.
The applicant was asked about his work history in Australia and Vanuatu. Th applicant said that he was working in a [workplace 1] close to [Town 2] in NSW. He helped with [job tasks 1]. He also maintained some of the equipment at the [workplace 1]. He had also previously worked on [a] farm, as well as [job tasks 2], both in Western Australia. For a while, he had operated [equipment] on [a] farm.
He had also done a number of different jobs in Vanuatu. He [did job task 3]. He had worked as [an occupation], [doing job task 4]. When work became difficult to find during the COVID period, he had [done job task 5].
He said that his father still [did that job] back in Vanuatu. His [brothers] all worked – [details]. The applicant’s female partner and child both currently reside with the applicant’s father.
I said to the applicant that he had previously stated that he had come to Australia to work. It was not clear from those statements why the applicant had sought protection. The applicant was asked again what he feared would happen if he returned to Vanuatu.
The applicant said that he might not have enough money if he returned, and they might kill him. I asked who might kill him. The applicant said that maybe his family would kill him. I asked why they would kill him. He said because he was here to support them, and he did not want to go back yet. I asked the applicant what would happen if he did have to go back to Vanuatu. The applicant then said that if he had to go back, he could do so. I asked him if he meant he would be safe if he went back to Vanuatu. The applicant said yes.
I reminded the applicant that he had just said his family would kill him if he went back. The applicant then stated – “Yes, if I do not go with enough money, this is what I’m thinking”.
I put it to the applicant that he had given conflicting responses to the question as to what would happen if he returned to Vanuatu and that I needed to clarify his position. I asked him to tell me what he thought would happen if he had to return to Vanuatu tomorrow.
The applicant then said that if he had to tell his family he was going back tomorrow, all would be OK. I asked the applicant to confirm that he would not be harmed by his family. The applicant confirmed that this would not happen.
I do not accept that the applicant would be harmed by his family in any way if he returned to Vanuatu. I base this finding on the fact that the applicant made a number of conflicting statements in this regard, and on the fact that he confirmed in the final instance that he did not fear harm from his family on return to Vanuatu.
I said to the applicant that I had to determine whether there was a real chance or a real risk that he would face serious or significant harm if he went back to Vanuatu. I said that on the basis of his statements at hearing today, I could not see that he would face such harm. I ask him if he wished to comment. The applicant did not offer a comment.
I said that I understood that Vanuatu was hit quite hard economically by COVID. However, I put country information to the applicant that the economy had begun to recover from the impacts of COVID. I said that the economy was expected to grow by %3.1 in 2024 and %3.6 in 2025, boosted by tourism and construction[1]. I put it to the applicant that he had done a number of different jobs in Vanuatu and had performed a variety of work here in Australia. He also had some capacity to speak English. All of this may indicate to me that it would be possible for him to find work if he went back to Vanuatu. The applicant was asked to comment but declined to do so.
[1] ‘Asian Development Outlook April 2024 – Vanuatu’, Katherine Passmore and Prince Cruz, Asian Development Bank, accessed at Asian Development Outlook (ADO) April 2024: Vanuatu (adb.org)
The applicant has a varied work history both in Vanuatu and Australia. He is still relatively young and in apparent good health. He has been able to come to Australia, a country with which he was initially unfamiliar, and consistently find work. I note that the applicant’s father and [his brothers] are currently employed in Vanuatu. Notwithstanding that the interpreter was sometimes required, it was clear that the applicant speaks (and understands) some English. He has also previously worked as [an occupation]. As noted in the information put to the applicant, [work sector] is one of the sectors expected to provide a boost to the Vanuatuan economy in the future.
In any event, the applicant worked up until he left Vanuatu. He did not report being discriminated against in finding employment during that time. I am not satisfied that he would be prevented from working or denied access to employment for any of the reasons set out in s 5J(1)(a).
As set out above, the applicant had claimed in his written application that he was gay and had been in a same-gender relationship for two years. The applicant had not raised those claims at hearing.
I advised the applicant that in his written claims he had said that he was gay and that he feared harm on that basis if he returned to Vanuatu. The applicant said that those were not his claims. I asked the applicant to confirm that he was not gay and did not fear harm on that basis. The applicant clearly stated that he was not gay and those were not his claims.
The applicant was asked if he had anything further to add. The applicant thanked the Tribunal but did not have anything further to add.
Given all of the above, I am satisfied that the applicant does not face any harm from his family (or any other party) on return to Vanuatu. I am satisfied that the applicant could find work and sustain himself and his family on return to Vanuatu.
I am also satisfied that the applicant is not gay and is not claiming to face harm on that basis. I am satisfied that the applicant would not face any harm on return due to his sexuality.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
As set out above, I am satisfied that the applicant would not face any harm from his family, due to his sexuality or for any other reason. Based on the same reasoning, I am satisfied that the applicant does not face a real risk of significant harm for those (or any other) reasons on return to Vanuatu.
The applicant stated that he would prefer to stay and work in Australia for a while before returning to Vanuatu. I accept that when the applicant arrived in 2021, the Vanuatuan economy was still feeling the impacts of COVID and of previous cyclonic events.
However, the information before me shows that the Vanuatuan economy is expected to grow at a reasonably healthy rate over the next two years. As set out above, the applicant found employment and accommodation and sustained himself in Australia, a country whose language and culture were initially unfamiliar to him. He speaks English and has some previous experience working in the [work sector], a sector set to be one driver of growth for Vanuatu. I consider that the applicant is a resilient and adaptable individual, and I am satisfied that the applicant would be able to find employment on return to Vanuatu.
Further, the applicant has not claimed that he (or any member of his family) would be denied access to employment with intention of causing him harm, nor is there information before me that suggests this would be the case.
The applicant has not put forward any other claims that would engage the complementary protection criteria.
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Damien Power
MemberATTACHMENT - 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.
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5J Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a) the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b) there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c) the real chance of persecution relates to all areas of a receiving country.
Note: For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note: For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a) conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b) conceal an innate or immutable characteristic of the person; or
(c) without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a) that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b) the persecution must involve serious harm to the person; and
(c) the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill‑treatment of the person;
(d) significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f) denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a) disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b) disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.
5L Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a) a characteristic is shared by each member of the group; and
(b) the person shares, or is perceived as sharing, the characteristic; and
(c) any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d) the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b) the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a) the person can access the protection; and
(b) the protection is durable; and
(c) in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36 Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a) the non‑citizen will be arbitrarily deprived of his or her life; or
(b) the death penalty will be carried out on the non‑citizen; or
(c) the non‑citizen will be subjected to torture; or
(d) the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e) the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a) it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b) the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c) the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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