2403619 (Refugee) - [2024] AATA 2987

2403619 (Refugee) [2024] AATA 2987 (23 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2403619

COUNTRY OF REFERENCE: Vanuatu
MEMBER:David James
DATE:23 April 2024
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 23 April 2024 at 11:46am
CATCHWORDS
REFUGEE – protection visa – Vanuatu – particular social group – victim of loan shark – fear of detention – property vandalised – physical assault – threatened legal action – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 411, 426, 499
Migration Regulations 1994, Schedule 2
CASES
Abebe v The Commonwealth of Australia (1999) 197 CLR 510
ABT16 v Minister for Home Affairs [2019] FCA 836
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chan Yee Kin v MIEA (1989) 169 CLR 379
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Fox v Percy (2003) 214 CLR 118
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MIAC v SZQRB (2013) 210 FCR 505
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
SZLVZ v MIAC [2008] FCA 1816
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 12 February 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of the Republic of Vanuatu (Vanuatu), applied for the visa on 11 December 2023. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H of the Act and was therefore not satisfied that the applicant was a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Vanuatu, there is a real risk they will suffer significant harm as defined in s 36(2)(aa) of the Act. Therefore,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] AATA 2987
Decision Date: 23 April 2024

CaseChat Overview and Summary

This matter concerned an application for review of a delegate's decision to refuse a protection visa. The applicant, who was from Vanuatu, claimed to have a well-founded fear of persecution due to debts incurred by a friend in his name, which led to threats, property damage, and physical assault by a loan shark. The applicant also claimed a fear of ongoing threats if returned to Vanuatu. The delegate had refused the visa, finding the applicant's claims did not relate to the prescribed reasons for protection under the Act and that state protection was available in Vanuatu.

The court was required to determine whether the applicant had a well-founded fear of persecution for one of the five reasons specified in section 5J(1) of the Migration Act 1958 (Cth), and whether there was a real chance of such persecution upon return to Vanuatu. Alternatively, the court had to consider 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 as defined in section 36(2A) of the Act.

The Tribunal considered documentary evidence provided by the applicant and the Department. The applicant did not attend the scheduled review hearing, despite invitations and reminders. While the applicant initially indicated an inability to attend in person due to being in another city, he agreed to proceed via telephone or video conference. However, subsequent attempts by the Tribunal to connect via telephone and Microsoft Teams were unsuccessful, with the applicant terminating the calls or not answering. The Tribunal noted that the "real risk" test for significant harm is equivalent to the "real chance" test for well-founded fear.

As the applicant failed to attend the hearing or provide oral evidence, and given the Tribunal's inability to make a favourable decision based solely on the documentary material, the Tribunal affirmed the delegate's decision to refuse the protection visa.

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 issues in this review are whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that, if the applicant was returned to Vanuatu they would be persecuted for one of those reasons and, if not, whether 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 that the applicant will suffer significant harm as defined in s 36(2A) of the Act.Documentary evidence before the Tribunal The Tribunal has before it documents from the Department’s file and those submitted by the applicant to the Department and the Tribunal relating to the applicant’s claims for protection, which includes (but is not limited to) the following documents, considered by the Tribunal:·The applicant’s protection visa application lodged on 11 December 2023, and the annexed copy of the applicant’s bio data page of his Vanuatu passport; The applicant’s application for review of 28 February 2024, and the annexed Decision Record of 12 February 2024; and·The administrative and movement records of the Department relating to the applicant.Claims for protection The applicant in his visa application, made the following claims for protection (as summarised) that:·He went guarantor in a car loan for a friend and seven months later he received a letter of demand from the bank in which they demanded the payment of $[amount] from the applicant further stating that if such payment was not made, they would take legal action against the applicant;·He also found out that his friend had also borrowed money from a loan shark in his name without his knowledge and that his friend had escaped after not repaying the debt to the loan shark. The loan shark often called the applicant about the loan and threatened the applicant and his family. He tried to say that he was not the borrower, but the loan shark did not listen and vandalised the applicant’s car;·He locked himself in his house and did not go to work as he was assaulted when he went out from his home and was in a state of fear. He was too scared to report this to the police as he felt it would not be good for his family to do so. Eventually he sold his car and paid off the bank and the loan shark and then escaped to Australia; and·He does not want to return to Vanuatu as he fears he will continue to face threats over these past debts.Department interview The applicant was not offered an interview with the Department. Delegates decision The delegate’s decision of 12 February 2024 to refuse the protection visa was made on the information before the delegate. The delegate found that the applicant’s claims did not relate to any of the reasons in s 5J(1)(a) of the Act. Therefore, the delegate was not satisfied that the applicant met the criteria in s 5H(1) of the Act, and therefore was not a refugee. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Vanuatu, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act, because the applicant could obtain protection, from an authority of Vanuatu. Invitation to attend hearing

Decision

Reasons for decision

The applicant was not offered an interview with the Department. Delegates decision The delegate’s decision of 12 February 2024 to refuse the protection visa was made on the information before the delegate. The delegate found that the applicant’s claims did not relate to any of the reasons in s 5J(1)(a) of the Act. Therefore, the delegate was not satisfied that the applicant met the criteria in s 5H(1) of the Act, and therefore was not a refugee. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Vanuatu, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act, because the applicant could obtain protection, from an authority of Vanuatu. Invitation to attend hearing On 25 March 2024, the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on 23 April 2024 at 9:30 am. This correspondence advised the applicant that the Tribunal had considered all the material before it relating to their application, but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the case without further notice. On 16 April 2024, the Tribunal sent a SMS Hearing Reminder to the applicant’s mobile telephone [number] (the mobile number which the applicant had provided to the Tribunal in his application for the review). The message read:Reminder – Your AAT hearing is on 23/04/24. Please check the hearing invitation to confirm details. If you have not replied to your hearing invitation, please do so immediately. Please do not reply to this number. Any questions, call 1800 228 333.Review hearing - 23 April 2024 The applicant did not appear before the Tribunal on the day and at the time and place of the scheduled hearing. On the morning of the scheduled hearing, the Tribunal telephoned the applicant’s mobile [number] at 9:32 am and in a conversation with the applicant, he informed the Tribunal Officer that he was in [City 1] and was unable to attend the Tribunal. After the Tribunal Officer informed the applicant that he had been notified of the date of the hearing of his application, but that he had not responded to the hearing notice indicating that he could not attend, he was then asked whether he could proceed via telephone or through a video conference via Microsoft Teams. The applicant told the Tribunal Officer that he could proceed via telephone. The Tribunal Officer then informed the applicant that they would disconnect the call to the applicant and ring him back in ‘Teams’ and commence his hearing. The Tribunal then called the applicant’s mobile number in ‘Teams’ at 9:35 am and again at 9:36 am at which time the applicant’s phone picked up the call but the call was then immediately terminated by the receiver by hanging up. The Tribunal then further called the applicant’s mobile number at 9:45 am and again at 10:00 am and on both calls the call was not answered and diverted to voicemail where an automated message indicated that: “you have reached the mailbox of [number]”.

Ratio Decidendi

Legal Principle Established

Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. 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: MIAC v SZQRB (2013) 210 FCR 505.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 (the Department), 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 EVIDENCEIssues The issues in this review are whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that, if the applicant was returned to Vanuatu they would be persecuted for one of those reasons and, if not, whether 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 that the applicant will suffer significant harm as defined in s 36(2A) of the Act.Documentary evidence before the Tribunal The Tribunal has before it documents from the Department’s file and those submitted by the applicant to the Department and the Tribunal relating to the applicant’s claims for protection, which includes (but is not limited to) the following documents, considered by the Tribunal:·The applicant’s protection visa application lodged on 11 December 2023, and the annexed copy of the applicant’s bio data page of his Vanuatu passport; The applicant’s application for review of 28 February 2024, and the annexed Decision Record of 12 February 2024; and·The administrative and movement records of the Department relating to the applicant.Claims for protection The applicant in his visa application, made the following claims for protection (as summarised) that:·He went guarantor in a car loan for a friend and seven months later he received a letter of demand from the bank in which they demanded the payment of $[amount] from the applicant further stating that if such payment was not made, they would take legal action against the applicant;·He also found out that his friend had also borrowed money from a loan shark in his name without his knowledge and that his friend had escaped after not repaying the debt to the loan shark. The loan shark often called the applicant about the loan and threatened the applicant and his family. He tried to say that he was not the borrower, but the loan shark did not listen and vandalised the applicant’s car;·He locked himself in his house and did not go to work as he was assaulted when he went out from his home and was in a state of fear. He was too scared to report this to the police as he felt it would not be good for his family to do so. Eventually he sold his car and paid off the bank and the loan shark and then escaped to Australia; and·He does not want to return to Vanuatu as he fears he will continue to face threats over these past debts.Department interview