2402653 (Refugee)
[2024] AATA 3261
•7 May 2024
2402653 (Refugee) [2024] AATA 3261 (7 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2402653
COUNTRY OF REFERENCE: Vanuatu
MEMBER:Frances Simmons
DATE:7 May 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 07 May 2024 at 3:43pm
CATCHWORDS
REFUGEE – protection visa – Vanuatu – claimed family violence – Tribunal determined at hearing that the claims in the protection visa application not true –Tribunal does not accept that the applicant left Vanuatu to escape family violence or that he has been harmed or mistreated by his family members in the past – applicant gave clear and unambiguous evidence that he does not believe he will face harm if he returns to Vanuatu – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5 (1), 5H, 5J, 5K-LA, 36, 65, 499
Migration Regulations 1994 (Cth), Schedule 2CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIMA v Rajalingam [1999] FCA 719; (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347Any 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 dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
The applicant is a citizen of Vanuatu. He arrived in Australia [in] October 2022 as the holder of a Temporary Work (International relations) (Subclass 403) visa, which enabled him to participate in the Pacific Australia Labour Mobility (PALM) scheme. He applied for the protection visa on 22 August 2023.
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 31 January 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
Evidence before the Department
The applicant was born in [year] in [Town 1], [in] Vanuatu. According to the information contained in his application for a protection visa, the applicant left Vanuatu because of ‘family violence’. In response to the question have you experienced harm in the past’, his protection visa application records:
My own family members were the ones that caused the really serious injury, which included a lot of screaming, pushing, and shoving. I never done anything wrong, but they constantly wanted to make me feel horrible so they could brag about it in front of other family members.
The applicant claims that he did not seek help as he ‘was afraid that asking for help would make the issue worse than it already was’. In response to the question did you move, or try to move, to another part of Vanuatu, the applicant said yes. He also ‘tried to get help from some of my family members, but they didn’t believe me and didn’t give me a chance, so I had to go back’. He believes that if he returns to Vanuatu ‘the same things will continue to happen, and they will continue to treat me disrespectfully.’
The applicant claims that if he returns to Vanuatu he will be harmed by his own family members. He does not believe the authorities will protect him because ‘local authorities don’t care about what is happening in families that have to do with family violence.’ He will not be able to relocate within Vanuatu because ‘they will find me to[o] easy.’
The applicant was not invited to an interview with the delegate. The delegate was not satisfied that the applicant was a person in respect of whom Australia has protection obligations as provided for by s 36(2)(a) or s 36(2)(aa) of the Act.
Evidence before the Tribunal
The applicant appeared before the Tribunal via video on 6 May 2024 and gave evidence in the English language. The applicant was unrepresented in respect of the review. The Tribunal explained the refugee criterion and the complementary protection criterion to the applicant. The Tribunal questioned the applicant about his background and his claims for protection. Where relevant his evidence at the hearing is considered below in the findings and reasons. The applicant did not submit any additional evidence to the Tribunal.
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). 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.
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 owed protection obligations as a refugee or otherwise entitled to complementary protection. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Findings and reasons
The Tribunal finds the applicant is a citizen of Vanuatu. The applicant has provided a copy of the biodata page of his passport issued in his name by the Republic of Vanuatu with his protection visa application. The Tribunal is satisfied that Vanuatu is the receiving country and has assessed the applicant’s claims against Vanuatu.
In determining whether the applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. This, in turn, requires the Tribunal to assess whether the applicant’s claims are credible. In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. If the Tribunal makes an adverse finding in relation to a material claim made by the applicant but is unable to make that finding with confidence it must proceed to assess the claim on the basis that it might possibly be true.[1] However, the Tribunal is not required to accept uncritically any or all of the allegations made by an applicant. Further, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out.[2]
[1] MIMA v Rajalingam [1999] FCA 719; (1999) 93 FCR 220.
[2] Randhawa v MILGEA (1994) 52 FCR 437 at 451 per Beaumont J; Selvadurai v MIEA (1994) 34 ALD 347 at 348 per Heerey J; and Kopalapillai v MIMA (1998) 86 FCR 547.
The Tribunal found the applicant’s evidence at the hearing to be straightforward and frank. The Tribunal accepts the applicant’s oral evidence to the Tribunal was truthful.
Based on the applicant’s oral evidence at the hearing, the Tribunal makes the following findings of fact:
(a)The applicant is a [age]-year-old man who was born in [Town 1] in Vanuatu. He reads, writes and speaks English as well as Bislama.
(b)The applicant travelled to Australia in October 2022 to work and make money to support his family.
(c)Prior to his departure from Vanuatu the applicant lived at the family home in [Town 1] with his father, his stepmother, and siblings (two younger brothers, an older sister, and a stepsister). His father, stepmother, and siblings still live at the family home in [Town 1]. His father works as an [occupation].
(d)The applicant’s parents separated when he was young. Before he travelled to Australia, he always lived with his father. His mother still lives in[Town 1].
(e)The applicant has completed a diploma in [course 1]. Before he travelled to Australia, he was working at a [workplace 1] in Vanuatu. He also received some financial assistance from his father.
(f)The applicant is currently working on farms in regional New South Wales. He sends some of the money he earns in Australia to Vanuatu to support his family.
The Tribunal accepts the applicant’s evidence at the hearing that he paid someone to lodge a protection visa application. The Tribunal accepts the applicant was not given a copy of his protection visa application and that he did not know what protection claims were made in this application until these claims were raised with him by the Tribunal.
At the hearing the Tribunal questioned the applicant about why he left Vanuatu, whether he had experienced harm in Vanuatu in the past, and whether he believed he would be harmed or mistreated if he returned to Vanuatu.
The Tribunal accepts the applicant’s evidence at the hearing that he has not experienced harm in Vanuatu in the past. The Tribunal accepts that he has never been detained or arrested by the authorities in Vanuatu. The Tribunal accepts that the applicant wanted to come to Australia to work and ‘help his family back home’.
The Tribunal accepts the applicant’s evidence at the hearing that he does not believe he will be harmed or mistreated if he returns to Vanuatu now or in the reasonably foreseeable future.
The Tribunal accepts the applicant’s evidence at the hearing that the claims made in his protection visa application are not true. Accordingly, the Tribunal does not accept that the applicant left Vanuatu to escape family violence or that he has been harmed or mistreated by his family members in the past. The Tribunal does not accept that there is a real chance that he will be harmed or mistreated by his family members if he returns to Vanuatu now or in the reasonably foreseeable future.
The Tribunal put to the applicant that he had informed the Tribunal that the claims in his protection visa application were not true. The Tribunal put to the applicant that he had not identified any other basis on which he claimed to meet the refugee or complementary protection criterion. The applicant agreed. He did not raise any claims to be owed protection as a refugee or to be otherwise entitled to complementary protection.
The Tribunal finds, based on its findings of fact and the evidence before it, that there is no real chance that the applicant will face serious harm or significant harm if he returns to Vanuatu for any of the reasons claimed in his protection visa application or for any other reason.
Refugee criterion
Based on its findings of fact and having considered all the evidence before it, the Tribunal is not satisfied that the applicant has experienced serious harm in the past in Vanuatu or that there is a real chance that the applicant will suffer serious harm for any of the reasons set out in s 5J(1)(a) of the Act if he returns to Vanuatu now or in the reasonably foreseeable future. Accordingly, Tribunal is not satisfied that there is a real chance that the applicant will face serious harm for any reason set out in s 5J(1)(a).
The Tribunal finds that the applicant does not have a well-founded fear of persecution and is not a refugee under s 5H(1). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection
Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition[3] and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.[4]
[3] MIAC v SZQRB [2013] FCAFC 33 (Lander, Besanko, Gordon, Flick and Jagot JJ, 20 March 2013) per Lander and Gordon JJ at [246], Besanko and Jagot JJ at [297] and Flick J at [342].
[4] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170–1 at [1169], [1180]).
The Tribunal accepts the applicant’s oral evidence that the claims made in his protection visa application that he is at risk of harm from his family members are not true. The applicant gave clear and unambiguous evidence that he does not believe he will face harm if he returns to Vanuatu. The applicant did not make any other claims to be owed complementary protection.
Having completely disavowed the claims he made in his protection visa application, the applicant did not identify any other basis which would enable the Tribunal to conclude that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vanuatu, there is a real risk that he will suffer significant harm.
Having considered all the evidence before it, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vanuatu, there is a real risk that he will suffer significant harm as defined in s 36(2A) and s 5(1) of the Act. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
CONCLUSION
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).
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 criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Frances Simmons
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.
…
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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Jurisdiction
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Procedural Fairness
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Statutory Construction
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Natural Justice
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