2402655 (Refugee)

Case [2024] AATA 3208

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

  1. 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).

  2. 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

  3. 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…

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AGLC
2402655 (Refugee) [2024] AATA 3208
Case
[2024] AATA 3208
Decision Date

CaseChat Overview and Summary

The applicant, a citizen of Vanuatu, sought a protection visa. The dispute concerned whether Australia owed the applicant protection obligations under the Migration Act 1958 (Cth), either as a refugee or on complementary protection grounds. The applicant's claims included fear of natural disasters and lack of work in Vanuatu, as well as a new claim of death threats and fear of revenge due to an alleged affair with a woman in Australia. The Tribunal reviewed the delegate's decision to refuse the visa.

The legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36(2)(a) (refugee criterion) or section 36(2)(aa) (complementary protection criterion). This required the Tribunal to assess the credibility of the applicant's claims and determine if there were substantial grounds for believing that, as a necessary and foreseeable consequence of removal to Vanuatu, the applicant faced a real risk of suffering significant harm.

The Tribunal considered the applicant's evidence, including his statements about leaving Vanuatu due to lack of work and his fear of natural disasters. It also examined the new claim of threats and revenge stemming from an alleged affair. The Tribunal noted inconsistencies in the applicant's claims, such as stating he lived in a remote location while evidence suggested he resided in a major town. Crucially, the applicant failed to provide evidence, such as threatening text messages, to substantiate his claims of receiving threats. Applying principles of assessing credibility and the benefit of the doubt for asylum seekers, the Tribunal found that the applicant's claims did not establish a well-founded fear of persecution for a Convention reason, nor did they demonstrate a real risk of significant harm upon return to Vanuatu. The Tribunal also considered country information and relevant guidelines.

The Tribunal affirmed the decision not to grant the applicant a protection visa, concluding that the applicant did not satisfy any of the criteria under section 36(2) of the Migration Act 1958.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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 SimmonsMemberATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…

Ratio Decidendi

Legal Principle Established

If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.Mandatory considerations In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade (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.