2403302 (Refugee)

2403302 (Refugee) [2024] AATA 3286 (23 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2403302

COUNTRY OF REFERENCE: Vanuatu
MEMBER:Denny Hughes
DATE:23 August 2024
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 August 2024 at 12:37pm

CATCHWORDS
REFUGEE – protection visa – Vanuatu – religion – Protestant – physical assault – economic conditions – employment – environmental issues – black magic – land dispute – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2
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

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 February 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a national of Vanuatu, applied for the visa on 23 October 2023. The delegate refused to grant the visa on the basis that the applicant did not meet the criteria for grant of a protection visa.
The applicant appeared before the Tribunal on 3 May 2024 and 6 June 2024 to give evidence and present arguments.
CLAIMS AND EVIDENCE BEFORE THE TRIBUNAL
Visa application
The applicant lodged his visa application in October 2023.
In addition to a copy of his Vanuatu passport, the applicant advanced claims relating to the prosecution of protestants in Vanuatu. He indicated that his church had been targeted by the government and construction workers. He claims he was beaten by security guards that resisted their protests. He claims he was taken to the police station, where he was detained for two weeks and beaten and humiliated. He claims he did not seek help because it was risky and unsafe, and he feared he would be punished again.
The delegate did not interview the applicant.
Tribunal review
The applicant’s first hearing on 3 May 2024 was scheduled to be an in-person hearing at the Tribunal’s offices in Melbourne. The applicant did not attend the hearing at the scheduled time and place. At the time of the hearing, an officer of the Tribunal called the applicant to confirm whether he intended to take part in the hearing. The applicant indicated he was unaware of the hearing. After some discussion, the applicant agreed to proceed with the hearing. As the applicant was in [Town 1], the hearing was converted to a video hearing via Microsoft teams.
Following the conclusion of the first hearing, on 4 May 2024 the applicant contacted the Tribunal via email to advise that he forgot to mention an aspect of his claims at the hearing. On 7 May 2024, he emailed the Tribunal to provide further details about these claims.
On 7 May 2024, the Tribunal invited the applicant to a further hearing scheduled to take place via Microsoft Teams on 6 June 2024. The applicant attended that hearing without issue.
Where relevant, the first applicant’s evidence at the hearings is referred to in the Tribunal’s analysis below.
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 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 meets the criteria for grant of a protection visa. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The applicant provided the Department with a copy of the biodata page from his Vanuatu passport. He has consistently claimed to be from Vanuatu. There are no apparent concerns with the applicant’s identity. The Tribunal is satisfied that the applicant is a national/citizen of Vanuatu.
There is nothing before the Tribunal to suggest the applicant has citizenship of any other country, or that he has any right to enter and/or reside in any third country. Based on the information before it, the Tribunal is satisfied s 36(3) of the Act does not apply.
Claims related to religious persecution
In the visa application, the applicant’s claims refer to persecution he has experienced in Vanuatu related to his protestant faith.
At the start of the first hearing, the applicant indicated that he asked someone to help him apply for the visa. He had paid him, but the information provided in the form was not what he told him. The Tribunal asked the applicant in the first hearing whether he feared harm in relation to his religion. The applicant said this is not correct and that he had other reasons for applying. At the second hearing, the applicant again confirmed he had no fears in relation to his religion.
Analysis
The Tribunal accepts the applicant’s oral evidence at the second hearing and finds that he is a Seventh Day Adventist. The Tribunal accepts that the claims in the written application regarding his faith are not correct and do not reflect his fears or experiences. The Tribunal finds that the applicant has not faced harm in the past because of his religion, nor does he fear harm on return to Vanuatu in terms of his faith.
The country advice indicates Vanuatu is a free country and that individuals can worship freely.[1] Given the applicant has resiled from his claims, the Tribunal finds there is no real chance or real risk of the applicant facing harm for reasons of his religion.
[1] Freedom House, Freedom in the World Report 2023 – Vanuatu, 2023.
Economic and environmental concerns
At the first hearing, the applicant said one of the main reasons he is in Australia is to work. He said the other reason is that he lives on the island of [Island 1]. He explained that there is a volcano on their island and it causes disasters all the time.
When asked if there was anything he feared, he confirmed there was no persecution. He said the reason he came to Australia was to make a small amount of money. The applicant said he had worked in [industry 1] in Vanuatu, but sometimes the work was not good. He might not make anything at the end of the day or week. And if he worked 8 hours, he might only make 20 dollars.
The applicant also claimed at the first hearing that he needed to use an agent to travel to Australia for seasonal work. He indicated that he had previously travelled to New Zealand to work on a farm. He explained that sometimes the agents would not give out further work and he would need to find another agent. Agents would sometimes give preference to people from their own island in terms of permissions to travel and work. Sometimes the agents would tell him that he had already travelled once or twice. When asked if he feared anything, he said it made it hard to come back to Australia.
Analysis
The Tribunal accepts there can be barriers to finding work from seasonal work agents, and that agents may give preference to people from their own islands. However, based on his evidence, the Tribunal is satisfied that there is no threat of harm from these agents. The Tribunal notes that he has been able to find seasonal work in New Zealand and subsequently in Australia. He also gave evidence that his mother had found work in Australia as well. The Tribunal considers that any barriers or unfair preferencing by the work agents is not at a level where the applicant would be denied work, seasonal work or travel opportunities, or that these barriers or issues with agents would in any way amount to harm.
In terms of the economic and environmental issues in the country more broadly, as discussed at the first hearing, the Tribunal has considered country advice about the situation in Vanuatu. That advice indicates that the country is highly vulnerable to natural disasters, and that these events also have a significant economic impact. The advice also indicates that these issues affect people throughout Vanuatu. One briefing suggests the 2023 cyclones impacted around 80 percent of the population.[2]
[2] DFAT, Vanuatu - Australia’s commitment to strengthening climate and disaster resilience in the Pacific, undated (April 2024).
As noted at the hearing, it also appears Vanuatu is taking steps to address the impact of these environmental and economic pressures. Since Tropical Cyclone Pam in 2015, Vanuatu has undertaken disaster management reforms to focus more on risk mitigation and prevention actions rather than disaster response, with projects to improve roads, build more resilient infrastructure (including schools, health, water and sanitation facilities), and developing more climate resistant markets within the economy.[3]
[3] Center for Excellence in Disaster Management and Humanitarian Assistance, Disaster Management Reference Handbook (June 2023) – Vanuatu, 26 July 2023; DFAT, Vanuatu - Australia’s commitment to strengthening climate and disaster resilience in the Pacific, undated (April 2024).
In terms of the economy, in 2020 Vanuatu graduated from the designation of ‘least developed country’ to ‘developing country’ due to improvements in the country economically and socially, despite setbacks due to natural disasters.[4] The advice before the Tribunal indicates that the country continues to develop its economy through better governance and financial reforms, improved public works, and skills development.[5] Consistent with the applicant’s own experiences, the Vanuatu economy benefits from its workforce travelling overseas to undertake seasonal work in Australia and New Zealand.[6]
[4] UNCTAD, Vanuatu graduates from least developed country status, 4 December 2020.
[5] DFAT, Economic recovery in Vanuatu, undated (May 2024).
[6] M Doran, Vanuatu grapples with seasonal worker success, DevPolicy Blog, 16 March 2018.
The Tribunal accepts there are significant environmental and economic pressures facing Vanuatu, and these are likely to continue well into the reasonably foreseeable future. The Tribunal considers the issues facing Vanuatu relate to its limited economy and status as a developing nation, and its volatile and vulnerable position economically and environmentally within the Pacific. There are some indications of corruption being an issue in the country,[7] however there are no obvious indications that the Vanuatu Government and authorities are acting against the interests of the population in terms of the economic and environmental issues facing the country. The Tribunal considers the country advice before it indicates Vanuatu is taking steps to protect its people and the country’s interests. And in terms of the environmental disasters, while these are matters in large part out of the government’s control, it is also apparent the government is taking steps to mitigate the impacts of these events.
[7] Freedom House, Freedom in the World Report 2023 – Vanuatu, 2023.
The analysis before the Tribunal does not indicate that individuals or groups are discriminatorily or intentionally targeted in connection with the economic or environmental issues facing the country, nor does it suggest that people or groups are denied protections for any reason. As referenced above, there is clear advice that the overall population is impacted by the environmental and economic issues facing the country – around 80 percent of the population was impacted by the cyclones in 2023.
The Tribunal accepts the applicant has concerns about returning to Vanuatu, in terms of finding work and the impact of environmental issues in the country. The Tribunal also accepts his economic position would be limited on return to Vanuatu, particularly compared against the benefit of living and working in Australia or New Zealand. The Tribunal accepts that the applicant may again be affected by environmental and/or economic issues in Vanuatu in the future. However, the Tribunal does not consider he would be intentionally, deliberately or discriminatorily harmed, or that he would be denied the ability to subsist or make a living and live in the country safely, or that he would be denied protection or support from the authorities for any reason.
In view of all the information before the Tribunal, it finds that any environmental or economic issues he may face on return to Vanuatu (including any issues he may experience with seasonal work agents) are not at any level that would threaten his life or liberty, or involve physical harassment or ill-treatment, nor would it deny him the capacity to earn a livelihood, cause him significant economic hardship, threaten his capacity to subsist, or would otherwise constitute or give rise to serious harm. It follows that the Tribunal finds that there is not a real chance of the applicant facing serious harm for these reasons if he were to return to Vanuatu now or in the reasonably foreseeable future
Having regard to the information before it, the Tribunal also considers the broader economic and environmental issues that the applicant may face if he returns to Vanuatu, would not constitute persecution because the applicant would not face these issues for reasons of his race, religion, nationality, membership of a particular social group or political opinion, as required under s 5J(1)(a) or (4)(a) of the Act.
In terms of complementary protection, the Tribunal also finds that any economic or environmental issues the applicant may face in Vanuatu, including any issues he may experience with seasonal work agents, are not at a level where he would be at risk of being arbitrarily deprived of his life, tortured, that he would face cruel or inhuman treatment or punishment, degrading treatment or punishment, or that those issues would otherwise constitute or give rise to significant harm as defined in the Act.
For those reasons, while the Tribunal accepts the applicant may again face or be affected by economic and environmental issues if he returned to Vanuatu, the Tribunal is not satisfied this would constitute ‘significant harm’ as defined in s 36(2A) of the Act. It follows that the Tribunal is not satisfied there is a real risk of the applicant facing significant harm for these reasons, as a necessary and foreseeable consequence of the applicant being removed from Australia to Vanuatu.
Claims related to land dispute and black magic
After the first hearing, the applicant emailed the Tribunal to advance a claim that he had forgotten to raise at the first hearing. At the second hearing, the applicant explained that he was not familiar with the Tribunal’s hearing processes and was not sure why he did not raise this claim. Given the circumstances of the first hearing, including the applicant’s flexibility in agreeing to a last minute change of hearing format, the Tribunal draws no adverse inference from the fact that the applicant did not raise the claim at the first hearing.
In his email to the Tribunal provided after the first hearing, the applicant explained that his family owns a large amount of land in their village. He claims that people are trying to get rid of his family so they can own the land. They have used black magic to kill his family members one by one. They have killed his grandfather and his father’s brother. He claims his father is the last one remaining. He also claimed that when they have a meeting because of the land dispute, the other people bring knives to fight with. If he goes back, he is scared they will come after him or kill him. The applicant explained that he is the first born of the family, and he will one day be the family head. He states that this makes him a target.
At the second hearing, the applicant explained that his family/tribe own a large amount of land on the island of [Island 1] and many other people in his area live on their land. He gave evidence that people in his local area have gone to meetings and courts to try and take away his family’s land, but they have not been able to do so, because his family have the title to the land. The applicant claimed that there has been violence and fighting at these meetings, and people sometimes brought spears to the meetings and this scares them. He said many family members have passed away and others are frightened so they have moved away from [Island 1].
At the second hearing, the Tribunal noted that his father has been able to keep his land through these meetings and the courts. The applicant confirmed this was the case. The Tribunal noted that country advice indicates that violence is against the law in Vanuatu and people are punished if they commit acts of violence.[8] The applicant said this is true, and that police do come to the meetings, but sometimes at the village level people can be hurt or killed before the police can get there. When asked if anyone from his family had been killed in the past, the applicant said that no one in his family had been killed in violence, but he had heard of people being killed with knives in other villages.
[8] Prof E Colvin, Criminal Law of Vanuatu - Chapter 5 Intentional Homicide and Assault, 2022; Prof E Colvin, Criminal Law of Vanuatu - Chapter 21 Sentencing, 2022; Global Organised Crime Index, Vanuatu, 2023; Freedom House, Freedom in the World – Vanuatu, 2023; ANU College of Asia and the Pacific, 'Pacific Attitudes Survey - Vanuatu', 1 April 2024

The applicant also claimed to fear harm from black magic. He explained that sometimes people get sick, but when they go to the hospital the doctors tell them they are not sick. He explained that sometimes people die from the sickness. He said the people trying to take their land away cannot win by fighting or through meetings, so they are now using black magic against his family and killing them one by one in order to take over the land.
The Tribunal noted that his father had owned the land for a long time. While there had been disputes over the land, he maintained control of it and continued to work on it. The Tribunal noted that it did not appear that his father had ever been a victim of black magic, and asked the applicant how he was able to avoid such harm. The applicant explained that his family go to church and his father does not talk much.
The Tribunal noted that his father is healthy and had been able to resist these issues, and this suggested the applicant may also be able to resist any concerns. The applicant said his father is getting old and that he would eventually take his place. He fears he would be the target after his father passes away and he replaces him. This is why he is scared for himself, and the siblings are under his protection.
The Tribunal asked the applicant who was targeting his family with black magic. He said a lot of people are living in the village and are known to use black magic. He said it is not one person, but a group working together. He could not specify who. He said sometimes they can switch people’s minds at meetings.
The Tribunal asked him which of his family members have been harmed from black magic. The applicant said his father’s brother died at a young age. He said he did not recall when as he was little, but agreed with the Tribunal’s suggestion (given his own age) that it could have been 15 or 20 years ago. The applicant said his father’s brother was not sick, but had gone missing from the garden. Everyone from the village had searched for him. They eventually found him in the creek with no clothes and he had passed away. They did not know what happened to him. They believed someone took him down to the creek, but they did not know who exactly.
When asked if anyone else in his family faced issues, the applicant said sometimes people got sick. He said black magic was like a devil. He explained that sometimes people wake up and realise they are not inside the house, or they can hear people walking on the roof.
The Tribunal asked who else was hurt or died from black magic. The applicant said his grandfather was at a meeting with a lot of people. After the meeting finished, his grandfather went home and passed away in his sleep. He said this happened in the 1990s.
The Tribunal noted it was his evidence that his father’s brother had died around 15 years ago in strange circumstances, and his grandfather died in the 1990s unexpectedly. The Tribunal noted the timeframe for these events was long ago and that this indicated there had not been a lot of issues with his family. He explained that the people seeking to harm them had to remove them slowly (one by one) so that others did not realise what was going on.
Analysis
For the reasons that follow, the Tribunal is not satisfied the applicant would face a real chance or risk of harm for these reasons if he returned to Vanuatu.
The Tribunal accepts there have been disputes over his family’s land in the past. That is consistent with the country advice before the Tribunal about land ownership in Vanuatu. That advice indicates that land ownership is a complex issue in Vanuatu. Disputes are common and tensions do arise. There are various impartial courts and other customary (Kastom) mechanisms involving chiefs and leaders to meet and resolve local disputes.[9] The information before the Tribunal also appears to indicate Vanuatu has a trusted police force, supported by international partners, as well as a defined criminal law and sentencing framework.[10]
[9] AusAID, Vanuatu Land Program. Program Design Document, 12 February 2009; Freedom House, Freedom in the World – Vanuatu, 2023; ANU (various), Pacific Attitudes Survey: Vanuatu, April 2024; Red Cross Red Crescent (Allens), Disaster Law Housing, Land and Property Managing Project – Vanuatu, 20 December 2017
[10] Global Organised Crime Index, Vanuatu, 2023; Freedom House, Freedom in the World – Vanuatu, 2023; ANU College of Asia and the Pacific, 'Pacific Attitudes Survey - Vanuatu', 1 April 2024; Prof E Colvin, Criminal Law of Vanuatu, 2022
While the Tribunal accepts there has at times been clashes, intimidation and fighting in connection with these land disputes and meetings, other than his claims related to black magic (discussed below), the applicant provided no specific examples of his family being harmed during meetings or negotiations over the land, nor separately or outside of these meetings. The Tribunal found his evidence about whether his father or anyone else had been harmed was limited and undetailed. He appeared to suggest there had been fighting and his father had been hurt before, but he did not indicate when this occurred or if his father was injured. When asked if anyone from his family had been killed, he indicated that no one had been killed, but he had heard of this occurring to someone from another village. The Tribunal considers his evidence suggests that there has at times been tensions and the threat of violence at these meetings, however the Tribunal considers his evidence also indicates that any violence is infrequent and low level.
The Tribunal has considered the fact that the police are sometimes present at the land dispute meetings. It considers that a strong indication that these meetings are effectively controlled by the authorities, although it accepts people may bring weapons to these meetings. The applicant appeared to agree that police were effective at maintaining peace at these meetings. The Tribunal also accepts his evidence that police are not always around, but it considers the lack of any specific incidents of violence or harm, including when police are not present, is a further indication that incidents of violence are infrequent and low level.
The Tribunal finds it significant that his father has been able to maintain control over and work on his family’s land for many years without being seriously harmed or losing ownership of the land, despite the applicant’s claims about threats and challenges to his family or tribal title. That suggests to the Tribunal that the legal ownership of his family’s title to the land is strong, that the land dispute processes are effective, and that the threat or tensions aimed at his family’s ownership of the land are limited and low level.
Indeed, it was the applicant’s evidence that the people seeking control of the land could not win through meetings or fighting, and this is why they were now using black magic. The Tribunal considers that some indication that the threat of direct harm or violence from these land disputes, if any, may no longer be ongoing.
The Tribunal has considered the applicant’s claims and evidence about the threat of harm to him and his family through black magic.
The applicant gave evidence that his family had been victims of black magic in the past. In relation to his grandfather, the Tribunal accepts the applicant’s evidence that he died suddenly in the 1990s, however the Tribunal also considers his grandfather could have died in his sleep of natural causes. The Tribunal considers his other claims of people in his family or area getting sick could also have an explanation outside of black magic, such as the ordinary ebb and flow of health and illness. The Tribunal does consider the death of his father’s brother to be a suspicious and unexplainable set of circumstances, however it occurred around 15 years ago, and the applicant conceded they did not know what happened and he did not know who was responsible.
The advice before the Tribunal indicates that belief in black magic (Naikamas or witchcraft/sorcery) is widely held in Vanuatu. That is evident from the fact that the use of witchcraft is recognised as an offence under the Vanuatu Penal Code, although it appears it is infrequently prosecuted.[11]
[11] Prof Miranda Forsyth, Sorcery and the Criminal Law in Vanuatu, ANU, January 2006; Prof E Colvin, Criminal Law of Vanuatu, Chapter 3, 2022
The Tribunal acknowledges the applicant’s beliefs, however it does have concerns related to these claims and whether there is any credible or ongoing threat of harm to the applicant and his family. Separate from an assessment of whether these are matters that can be attributed to black magic, the Tribunal considers a relevant consideration in this assessment is the infrequency of his family's issues and the absence of recent specific incidents of harm involving the applicant or his family. Other than the suspicious death of his father’s brother around 15 years ago, there does not appear to have been any subsequent or recent instance of injury or death in his family that could be attributed to black magic or persons otherwise seeking to harm the applicant’s family.
The applicant has contended that attacks through black magic are done slowly to avoid suspicion, however the infrequency of these claimed incidents, and the fact that around 15 years have passed since his father’s brother passed away, raises serious questions as to whether there is in fact any credible or ongoing threat to the applicant, his father or their other family members.
The Tribunal also finds it relevant the applicant’s father has not fallen victim to black magic or other direct violence or harm, despite the applicant’s claims that he has been under pressure in relation to the land for many years. The Tribunal acknowledges the absence of past harm is not determinative of whether the applicant or his father (or other family) would be at threat of harm in the future, however it does consider it relevant, particularly over an extended period of time. Were there a credible and ongoing threat to his father in this way, the Tribunal does not consider his father could avoid harm (or attempts to harm him) over such an extended period simply by going to church or limiting who he talks to, as was the applicant’s evidence at the hearing.
Ultimately, the Tribunal considers the infrequency of the issues faced by the applicant, his father and family, and the lack of recent incidents involving the applicant, his father or family, whether through black magic or more direct violence, are relevant considerations in this assessment. Based on all the information before it, the Tribunal finds there is no real chance or real risk of the applicant facing harm for these reasons, whether through black magic or any other indirect threat or violence.
While the Tribunal has considerable doubts as to whether there is any other threat of direct harm or violence to the applicant and his family (i.e. other than his black magic claims), given the Tribunal accepts there has been conflict and tensions over their land in the past, it accepts there may still be people in his area that are against his family and who continue to seek title over their land, and therefore there may be disputes and tension at future meetings or proceedings, or more generally.
The Tribunal has considered whether the applicant would be at any chance or risk of harm for these reasons if he returned to Vanuatu, including if he took over control of his family’s land. The Tribunal has again had regard to the fact that his father has faced no serious threat or harm in his many years in control of their land in [Island 1]. The Tribunal is not satisfied and does not accept the applicant’s explanations for how his father was able to avoid harm, and finds instead that the reason his father has avoided harm is because the threat of any harm he and his family have faced is limited and low level. If the applicant were to take over control of the family land in the reasonably foreseeable future, the Tribunal is not satisfied the threat of harm would rise above that limited and low level. The Tribunal considers the threat of any harm is further mitigated by the presence of police at meetings, his family’s strong legal title to the land, and the apparent effectiveness of these meetings and proceedings at resolving these matters in favour of his family’s title. However, even where police are not present, and outside of these meetings, the Tribunal considers the threat of harm has been and would remain limited and low level. Based on all the information before it, the Tribunal finds there is no real chance or real risk of the applicant facing harm for these reasons, whether in connection with the land disputes or otherwise.
The Tribunal considers the applicant’s personal fears about black magic and violence are likely genuinely held, as are his concerns about taking control of the family’s land. The Tribunal accepts family members may have left [Island 1] because of concerns about black magic and past disputes. However, for the reasons above, the Tribunal is not satisfied there is a real chance or real risk of the applicant facing harm, through black magic, direct violence or any other means, whether from the people who want to occupy his family’s land, or any other person or group, if he returned to Vanuatu now or in the reasonably foreseeable future.
Support for family
At the conclusion of the second hearing, the applicant stated that his family is struggling and he would like to stay in Australia to provide for them. He explained that by staying and working in Australia, he can support his siblings in their schooling.
The Tribunal considers the applicant was honest and earnest in his claims and motivations for wanting to remain in Australia. However, beyond an assessment of the protection visa criteria, the Tribunal does not have a discretion to permit the applicant to remain in Australia.
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). The Tribunal is also not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There was no claim or suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2)(b) or (c).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Denny Hughes
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 3286

23 August 2024

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