2402655 (Refugee)

2402655 (Refugee) [2024] AATA 3208 (5 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2402655
COUNTRY OF REFERENCE:                   Vanuatu
MEMBER:Frances Simmons
DATE:5 July 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 05 July 2024 at 5:26pm
CATCHWORDS
REFUGEE – protection visa – Vanuatu – natural disasters – remote location with inadequate infrastructure – house damaged by cyclone – work opportunities – new claim of relationship in Australia and fear of revenge – threats from wife’s brother – credibility – despite claiming to live in remote location, applicant lived in major town – country information – claimed fear of harm not for refugee reason – inconsistent claims of fear from physical attack or black magic – no evidence of threatening messages provided – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5J(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65, 423A
Migration Regulations 1994 (Cth), Schedule 2
CASES
EZC18 v MHA [2019] FCA 2143
Kopalapillai v MIMA (1998) 86 FCR 547
MIAC v SZQRB [2013] FCAFC 33
MIMA v Rajalingam [1999] FCA 719; (1999) 93 FCR 220
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
SZDCD v MIBP [2019] FCA 326
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

The applicant is a citizen of Vanuatu. He last arrived in Australia in April 2021 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 a protection visa on 15 October 2023. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 22 January 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant appeared before the Tribunal on 1 May 2024 via video to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bislama and English languages.
Evidence before the Department
According to his protection visa application, the applicant is seeking protection ‘due to the ongoing threat posed by natural disasters in Vanuatu’. He stated Vanuatu ‘has been severely affected by a series of devastating natural disasters, including cyclones, earthquakes, and volcanic eruptions’ and that ‘these disasters have had a profound impact’ on his safety and well-being. According to his protection visa application:
Vanuatu has experienced an increasing frequency and severity of natural disasters, leading to widespread destruction, displacement, and loss of life. These catastrophic events have made it increasingly dangerous to live in Vanuatu and have created a significant risk to my personal safety.
The inadequate infrastructure and limited resources in Vanuatu have made it difficult for the government to effectively respond to these disasters, leaving its citizens vulnerable and without sufficient protection. I fear for my life and the lives of my loved ones in the face of these ongoing natural disasters.
The applicant stated he did not experience harm in Vanuatu in the past. He did not try to move to another part of Vanuatu. Moving to another part of Vanuatu was costly and he was not sure he would be safe even they moved to another part of Vanuatu.
The applicant stated that returning to Vanuatu in the face of ongoing natural disasters ‘is a deeply unsettling prospect’ as the ‘inadequacy of infrastructure, the lack of preparedness, and the increasing unpredictability of these disasters’ have left him with ‘a profound fear for my safety and the safety of my loved ones’.
In response to a question about whether he would be harmed or mistreated if he returned to Vanuatu, the applicant stated ‘no’. However, he also stated he wished he could ‘relocate to Australia’, ‘begin anew’ and ‘leave behind the constant fear of natural disasters’. He stated the authorities will not protect them and that ‘our remote location …far away from the capital city, has exacerbated the government’s limitations in providing adequate protection…[and] the absence of essential equipment and resources further compounds the challenges we face’.
The delegate refused to grant the visa on the basis that the applicant was not a person to whom Australia owed protection obligations as a refugee or otherwise entitled to complementary protection.
Evidence before the Tribunal
The applicant appeared before the Tribunal via video on 1 May 2024 and gave evidence in the Bislama 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. The applicant told the Tribunal that he paid a person to make a protection visa application on his behalf. His application was sent to him shortly before the hearing and at the hearing he told the Tribunal the claims it made were true and correct.
The Tribunal asked the applicant why he left Vanuatu. The applicant said there is no work in Vanuatu, so he came to Australia to support his [kids] and his family. The Tribunal asked the applicant what he believed would happen to him if he returned to Vanuatu. The applicant told the Tribunal if he returns to Vanuatu there are natural disasters, and he won’t have any work to do in Vanuatu. The applicant also raised a new claim: because he had an affair with a woman in Australia, he has received death threats. He is afraid that if he returns to Vanuatu someone will take revenge on him.
The Tribunal asked if he had been harmed in Vanuatu in the past. He told the Tribunal that when he was 20 years old he was bashed but it wasn’t too serious. He is now [Age] years old and has no concerns that people who assaulted him when he was 20 years old will harm him again. He did not identify any other instances where he had been harmed in Vanuatu in the past. When asked how he had been personally affected by natural disasters, he said his house was damaged by Cyclone Pam in 2015.
The Tribunal questioned the applicant about his claims for protection. With respect to his claims to fear harm because he has had an affair with a woman in Australia, he claims to have received threatening text messages from the brother of the mother of his children. At the close of the hearing, the applicant was provided with time to provide the Tribunal with screenshots of the threatening text messages. No further submissions or documents were received. Where relevant the applicant’s evidence is discussed further below in the Tribunal’s findings and reasons.
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.
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 (DFAT) 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 makes the following findings of fact based on the applicant’s oral testimony:
a.The applicant is a [Age]-year-old citizen of Vanuatu. He was born in [Town], until he travelled to Australia, had lived in Vanuatu all his life. He has previously worked as [an occupation] and on a [workplace] in Vanuatu.
b.The applicant is working on a farm in Australia and providing financial support to his family in Vanuatu. His parents, [sisters], and one of his two brothers currently live in [Town]. His second brother is also in Australia.
c.The applicant has [children] in Vanuatu, aged [Ages]. The children live with their mother ([Ms A]) and her family in [Town].
d.The applicant is currently in a relationship with a woman called [Ms B]. [Ms B] is a citizen of Vanuatu who is currently resident in Australia. Their relationship began in the winter months of 2023. [Ms B] has previously been married. She separated from her husband in 2015.
e.The applicant’s house was damaged in 2015 by Cyclone Pam and he stayed with family and friends for two months before repairs were made to the house.
While the Tribunal largely accepts the applicant’s oral evidence about his background and circumstances, the Tribunal did have concerns about the credibility of his claims that he will be targeted for revenge attacks because he has had an affair with a woman in Australia. These concerns are discussed further below.
The Tribunal notes that the claims made in his protection visa application refer to the applicant living in a remote location far away from the capital city. However, in oral evidence the applicant gave evidence he had lived in [Town], since he was born and that his immediate family also live in [Town]. For the avoidance of doubt, the Tribunal finds that before he travelled to Australia, the applicant resided in [Town].
Is there a real chance that the applicant will suffer serious harm or significant harm if he returns to Vanuatu?
Claims that the applicant will face harm as a result of natural disasters
The applicant told the Tribunal that he will face economic hardship because of the impact of natural disasters in Vanuatu. He told the Tribunal he applied for protection because they often run out of money because of the natural disasters. He told the Tribunal his house was damaged by Cyclone Pam in 2015. When the applicant was asked about what harm he believes he will face in the future from natural disasters, he explained that the natural disasters impact on [occupation locations] and he has worked as [an occupation]. If they didn’t have work, they didn’t have anything.
The Tribunal accepts that Vanuatu, a country of about 300,000 people, has been ranked the nation most prone to natural disasters by the United Nations. Vanuatu has been severely affected by a series of devastating natural disasters, including cyclones, earthquakes, and volcanic eruptions. The Tribunal has considered the news reports about the impact of tropical cyclones Kevin and Judy that the applicant provided to the Department as well as reports about the impact of earlier tropical cyclones and volcanic eruptions.[3]
[3] Vanuatu - Australia’s commitment to strengthening climate and disaster resilience in the Pacific | Australian Government Department of Foreign Affairs and Trade (dfat.gov.au)
Relevantly, the DFAT reports that:
Vanuatu is recognised as one of the most vulnerable countries in the world to the impacts of climate change and disasters. Cyclones and extreme rainfall are common. Volcanic activity, earthquakes and tsunamis also affect the country.
Vanuatu will experience more cyclones like Tropical Cyclones (TCs) Judy and Kevin (March 2023), that impacted an estimated 250,000 people (around 80 per cent of the population) and caused widespread damage to infrastructure, houses, crops, and energy and communications networks. Vanuatu Government’s Post Disaster Needs Assessment estimates the cost of loss and damage to be USD433 million. Australia continues to provide support to meet Vanuatu’s immediate humanitarian and early recovery needs.
…
Climate hazards, including extreme rainfall events, severe flooding, and storm surge, threaten community livelihoods, and essential infrastructure, like roads, which result in communities being cut off from essential services …
Climate change disproportionately impacts those already experiencing exclusion and marginalisation, including women, people with disabilities and people living in poverty. Australia is committed to supporting gender-responsive and inclusive approaches to climate and disaster risk resilience result in better program outcomes.[4]
[4] Vanuatu - Australia’s commitment to strengthening climate and disaster resilience in the Pacific | Australian Government Department of Foreign Affairs and Trade (dfat.gov.au)
The Tribunal accepts that Vanuatu is vulnerable to the impacts of climate change and increasingly prone to natural disasters. What the Tribunal must consider is whether the applicant satisfies the refugee criterion or is otherwise entitled to complementary protection. The Tribunal explained the refugee criterion and complementary protection criterion to the applicant and questioned him about his claims that he would face harm as a consequence of the increasing severity and frequency of natural disasters.
The Tribunal explained to the applicant that to meet the refugee criterion the harm feared needed to be for the essential or significant reason of one of the five reasons set out in the refugee definition. The Tribunal asked the applicant about whether he believed he was more affected than other people in Vanuatu by natural disasters. The applicant could not say whether he was affected more or less than other people in Vanuatu, but the natural disasters had had a personal impact on him. He explained that his house had been damaged in Cyclone Pam in 2015 and that work is hard to find in Vanuatu because of the natural disasters.
The applicant’s evidence was that he has previously been able to find work on [workplaces] and [occupation job task] in [Town] but the work was not permanent. As noted above, the Tribunal finds the applicant was born in [Town] and, other than the time he has spent in Australia, has lived in [Town] since he was born. However, the Tribunal accepts that the impacts of climate change and, in particular, the increasing frequency and intensity of natural disasters may impact on the ability of the applicant to obtain regular and secure work in Vanuatu in the future.
The Tribunal finds that the applicant’s claimed fear of harms as a result of the increasing frequency of natural disasters or the economic harm and consequences of such disasters or any other harm caused by climate change related events, do not relate to any of the reasons in s 5J(1)(a). The Tribunal further finds that, having regard to the applicant’s particular profile as a young man of working age with family networks in [Town], that there is no real chance that any economic hardship he may face as a consequence of natural disasters will rise to the level of serious harm for the purposes of the refugee criterion.
The Tribunal is not satisfied that the applicant’s claims that he will face harm due to the increasing prevalence of natural disasters relate to any reasons in s 5J(1)(a) or that, as a consequence of natural disasters, he will experience discrimination or economic hardship for one or more of these reasons in s 5J(1)(a). As a result, the Tribunal is not satisfied that the applicant’s genuine concerns about the increasing prevalence and intensity of natural disasters in Vanuatu give rise to a well-founded fear of persecution for the purpose of s 5J.
Claims that the applicant will be the target of revenge attacks because he had an affair
Before the Tribunal, the applicant raised a new claim that he would be the target of revenge attacks in Vanuatu because he has had an affair with a woman in Australia. Asked why he would face harm because he had an affair with a woman, he said that the family message him that they want to beat him and bash him. He also referred to receiving death threats.

The applicant’s evidence is that he is unmarried with two children. The mother of his [children], [Ms A], lives in Vanuatu. The applicant told the Tribunal he remains in contact with [Ms A], and sends her money to support their [children]. When asked whether he was in a relationship with [Ms A], his response was vague. The applicant did disclose that since 2023 he has been in a relationship with a woman called [Ms B]. [Ms B], who is a citizen of Vanuatu who is currently resident in Australia, divorced from her husband in 2015. The applicant does not fear harm from [Ms B]’s ex-husband. The threats he claims to have received are from [Ms A]’s family. Questioned further about the source of these threats, the applicant told the Tribunal that he received threatening text messages from [Ms A]’s brother, who lives in [Town]. He also clarified he did not receive threats from anyone else.
The applicant told the Tribunal he was receiving threatening text messages from [Ms A]’s brother ‘basically every day’. The Tribunal put to him it had not received any screenshots of the threats sent to him via text message. Asked whether he had received threats from anyone other than [Ms A]’s brother, he said ‘no’. Asked if he believed that [Ms A]’s brother would act on the threats, he responded he was more fearful of black magic. He said in Vanuatu they don’t use physical harm; they use black magic. The Tribunal put to the applicant that earlier he said he was afraid he was going to be beaten. He said in Vanuatu there was physical harm and black magic. He believes in black magic.
Section 423A of the Act requires the Tribunal to draw an inference unfavourable to the credibility of the claim if the Tribunal is satisfied that the applicant does not have a reasonable explanation as to why the claim was not raised before the primary decision was made. The applicant told the Tribunal he did not raise his claim about revenge attacks in his protection visa application, which he lodged in October 2023, because he first began receiving threatening texts in 2024. While the applicant gave evidence that his relationship with [Ms B] began in the winter of 2023, this explanation could readily be accepted if his evidence was otherwise credible.
However, the Tribunal is concerned that the applicant’s evidence about his fears that he will be harmed because he has had an affair with a woman in Australia shifted over the course of the hearing. After initially claiming he would be beaten and bashed, the applicant then claimed he would be subject to black magic rather than physical harm. When it was put to him that he had earlier claimed he would be beaten, he then said in Vanuatu there is physical harm and black magic. He has not been subject to black magic in Australia, but he was afraid this would happen if he returned to Vanuatu.
The Tribunal is further concerned that, despite being provided with an opportunity to do so, the applicant has not provided any documentation of the threats he claimed to have received (for example, screenshots of text messages). While the Tribunal put the applicant on notice of its concerns that he had not supplied such evidence and provided him with time after the hearing to provide screenshots of the threatening text messages he claims to be receiving from [Ms A]’s brother ‘basically every day’ after the hearing, no documentation of such text messages was provided to the Tribunal and nor did the applicant provide any explanation as to why such documentation could not be produced. The applicant also declined to respond to the Tribunal’s questions about whether he could seek protection from the Vanuatu Police Force or elaborate on his claims that he will be subject to black magic.
Overall, the Tribunal found the applicant’s evidence about his claims that he would face retribution for entering into a relationship with a woman in Australia while [Ms A], the mother of his two children, remains in [Town] to be vague and lacking consistency over the course of the hearing. Based on the evidence before it, the Tribunal is not satisfied that the applicant has provided a truthful account of threats that have been made against him by [Ms A]’s brother because he has entered into a relationship with a woman in Australia. The Tribunal does not accept that he has received death threats or that there is a real chance that the applicant will face serious harm or significant harm from relatives of [Ms A] if he returns to Vanuatu.
While it is possible the applicant may encounter disapproval from family members or others in Vanuatu for entering into a relationship with a woman in Australia, the Tribunal is not satisfied that there is a real chance he will face serious harm or significant harm from family members of [Ms A or Ms B] or anyone else if he returns to Vanuatu now or in the reasonably foreseeable future as retribution for entering into a relationship in Australia. Having regard to these findings of fact, the Tribunal finds that there is no real chance of serious harm in any form from anyone in Vanuatu including in the form of significant physical harassment, ill-treatment, injury, black magic practices or a threat to his life over the matter of his ‘affair’ in Australia with a woman called [Ms B].
Refugee criterion
Based on its findings of fact and having considered all the evidence before it, the Tribunal is not satisfied 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, the 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 applicant has not claimed that any economic hardship or difficulties he may experience in Vanuatu as a consequence of the increasing prevalence of natural disasters and the impacts of climate change would be directed at him for the essential and significant reasons of his race, religion, nationality, membership of a particular social group or political opinion as required by s 5J(1)(a).
Furthermore, having regard to the applicant’s circumstances as a young man of working age with family networks in Vanuatu, the Tribunal is not satisfied that there is a real chance, as opposed to one that it is remote, that any economic hardship that the applicant may encounter as a consequence of the impacts of the increasing prevalence of natural disasters in Vanuatu will amount to serious harm for the purposes of s 5J(5) of the Act.
Having considered what it has accepted of the applicant’s claims individually and cumulatively, 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
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). 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[5] and that reasoning appears equally applicable to the refugee criterion in s 5J(1)(b) of the Act.[6]
[5] 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].
[6] Explanatory Memorandum, Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Caseload Legacy) Bill 2014 (Cth), pp.170–1 at [1169], [1180]).
‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
Claims the applicant will face significant harm because he had an affair in Australia
Based on its findings of fact, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm if he is removed from Australia to Vanuatu for reasons that are related to the fact that he has had a relationship with a woman in Australia. As noted above, while the Tribunal accepts he is currently in a relationship with a woman called [Ms B] in Australia, the Tribunal does not accept that the applicant’s claims that he has been threatened with death or that he will be bashed, beaten, subject to black magic practices, or otherwise be subject to significant harm by the brother of his mother’s children or by anyone else in Vanuatu are credible. In summary, the Tribunal does not accept that there is a real risk that he will face significant harm from family members of the mother of his children or anyone else in Vanuatu for reasons that relate to his relationship with a woman in Australia.
Claims the applicant will face significant harm because of natural disasters, climate change, and consequent economic hardship
In relation to the applicant’s claims about the consequences of climate change and the increasing prevalence and intensity of natural disasters, there is no suggestion or claim that the applicant will be subject to the death penalty, or torture. With respect to the potential impact of natural disasters on his personal safety and the statement in his protection visa application that he ‘fears for his life’, the Tribunal is not satisfied that there is a real risk that he will be arbitrarily deprived of his life. While the term arbitrary deprivation of life is not defined by the Act, the Federal Court has interpreted this phrase to require a deliberate act or omission – that is conduct by a third party or third parties – that results in a person being arbitrarily deprived of their life[7] with the requirement of arbitrariness operating to characterise the conduct by which a person is deprived of their life.[8] On the evidence before it, the Tribunal is not satisfied that the applicant has identified the relevant act or omission by a third party or third parties that would give rise to a real risk that he would be arbitrarily deprived of his life under s 36(2A)(a) of the Act.
[7] EZC18 v MHA [2019] FCA 2143 at [47].
[8] SZDCD v MIBP [2019] FCA 326 at [40]–[44] and [48].
The Tribunal accepts that the applicant may find it difficult to find secure and regular employment if he were to be removed from Australia to Vanuatu. The Tribunal also accepts that his concerns about his employment prospects and economic hardship are linked to the impacts of climate change and the increasing prevalence and intensity of natural disasters. As noted above, DFAT has recognised that ‘[c]limate hazards, including extreme rainfall events, severe flooding, and storm surge, threaten community livelihoods and essential services’ in Vanuatu. However, while the applicant may find it difficult to secure regular employment in Vanuatu, the Tribunal finds that any economic hardship the applicant may experience if he is removed from Australia to Vanuatu is not because of any conduct intended to inflict severe pain or suffering, or pain or suffering that, in all the circumstances, could reasonably be regarded as cruel or inhuman in nature. Nor is it a result of an act or omission which causes, and is intended to cause, extreme humiliation on the applicant.
The definition of ‘cruel or inhuman treatment or punishment’ states that it means an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or pain or suffering, whether physical or mental, is 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. The pain or suffering must be intentionally inflicted, in the sense that there is an actual, subjective intention on the part of a person to cause the suffering by their conduct.[9] Similarly, degrading treatment or punishment is exhaustively defined in s 5(1) of the Act to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable, in the sense that there is an actual, subjective intention on the part of a person to cause the suffering by their conduct.[10]
[9] SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114].
[10] Ibid.
The Tribunal finds that the consequences of climate change, including the increasing prevalence or intensity of natural disasters – such as volcanic eruptions, cyclones, and hurricanes – in Vanuatu does not involve any act or omission by a perpetrator with the requisite intention to inflict ‘significant harm’ on the applicant.
The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Vanuatu, there is a real risk the applicant will suffer ‘significant harm’ for any of the reasons claimed or for any other reason. Accordingly, 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) or 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 any of the criteria in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Frances Simmons
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.
…

[2024] AATA 3208

5 July 2024

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