2404043 (Refugee) - [2024] AATA 1805

2404043 (Refugee) [2024] AATA 1805 (24 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2404043
COUNTRY OF REFERENCE:                   Vanuatu
MEMBER:David James
DATE:24 May 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 24 May 2024 at 11:44am
CATCHWORDS
REFUGEE – protection visa – Vanuatu – natural disasters, economic hardship and inadequate government response –application completed by another person without applicant’s knowledge of criteria – applied to continue working in Australia – no harm or fear of harm, but fear of consequences – late claim of land dispute and deaths of parents possibly by witchcraft – relocation with no further harm or threats – country information – natural disasters affect all population – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), (2B), 65, 411(1)(c), 423A
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth (1999) 197 CLR 510
ABT16 v MHA [2019] FCA 836
AVQ15 v MIBP [2018] FCAFC 133
Chan Yee Kin v MIEA (1989) 169 CLR 379
Fox v Percy (2003) 214 CLR 118
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
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 7 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 15 November 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, the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.
The applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (the Tribunal) on 4 March 2024. The applicant provided a copy of the delegate’s decision with the…

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 1805
Decision Date: 24 May 2024

CaseChat Overview and Summary

This matter concerned an application for review of a decision to refuse a protection visa. The applicant, a citizen of Vanuatu, claimed to fear returning to his home country due to the frequent occurrence of natural disasters, economic hardship, and an inadequate government response. He stated he had not experienced harm or mistreatment in Vanuatu and did not fear such if he returned, but rather feared the consequences of natural disasters and the economic difficulties he would face.

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 if there was a real chance of such persecution upon return. Alternatively, the court had to consider whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of removal to Vanuatu, the applicant would suffer significant harm as defined in section 36(2A) of the Act.

The court considered documentary evidence including the applicant's visa application, media reports of natural disasters in Vanuatu, and country information. The applicant's claims focused on his fear of natural disasters and the resulting economic hardship, rather than fear of persecution based on the grounds specified in the Act. Country information indicated that while natural disasters affect the population, the majority of respondents in a study felt safe in their communities, and the Vanuatu Police Force, supported by Australia, was perceived by many as having improved. The court noted that the applicant did not claim to have experienced harm or to fear harm from people in Vanuatu, but rather from the natural environment and economic conditions.

The delegate's decision to refuse the protection visa was affirmed. The court found that the applicant's fears regarding natural disasters and economic hardship did not fall within the definition of persecution under section 5J(1) of the Act. Furthermore, the court was not satisfied that there were substantial grounds for believing the applicant would suffer significant harm as a necessary and foreseeable consequence of removal to Vanuatu.

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 15 November 2023, and the annexed copy of the applicant’s bio data page of his Vanuatu passport, and four media screen shots of photos of apparent damage to property with the corresponding media news titles of ‘All clear given in Vanuatu, Lola downgraded to Ex-Tropical Cyclone’; ‘Tropical Cyclone: Schooling disrupted for thousands of students in Vanuatu’, dated 28 October 2023; ‘Vanuatu: Pacific nation reels from twin cyclones and earthquake’; and ‘Tropical Cyclone Lola: Two people reported dead in Vanuatu’, dated 30 October 2023. ·The applicant’s application for review of 4 March 2024, and the annexed Decision Record of 7 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 left Vanuatu because he has a profound fear and apprehension regarding the frequent occurrences of natural disasters in Vanuatu and the persistent threat of hurricanes, cyclones, earthquakes and volcanic eruptions instils not a just a challenge for him but a genuine and profound sense of anxiety of these events and make it extremely difficult for him to even entertain the idea of returning to Vanuatu;·The constant worry for his safety and well-being given the devastating consequences of these natural occurrences weighs heavily on his mind and as a result contemplating a return to Vanuatu where such risks persist is genuinely terrifying him; ·He did not experience any harm in Vanuatu and does not think he will be harmed or mistreated if he returns to Vanuatu, but he does fear the consequences of natural disasters;·He tried to move to another part of Vanuatu to seek safety but found it challenging because of his limited financial resources;·He fears returning to Vanuatu as he will experience economic hardship because he will not have a place to reside and no financial means to buy land and build a house; and·He does not believe that the Vanuatu authorities can protect him because the government does not have any effective solutions for natural disasters and their inadequate response is marked by the absence of any financial assistance or a financial safety net.Department interview

Decision

Reasons for decision

The applicant was not offered an interview with the Department. Delegates decision The delegate’s decision of 7 February 2024 to refuse the protection visa was made on the information before the delegate. The delegate found that the applicant’s claims that they feared natural disasters in Vanuatu 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. Invitation to attend a hearing On 9 April 2024, the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on 23 May 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. Country information In the Australian National University’s ‘The Vanuatu-Australia Policing and Justice Services Study of May 2023 it was reported that:Australia has provided assistance to the Vanuatu Police Force (VPF) since the early 1990s and to the justice sector since the mid-1990s. The two programs were combined in 2014, and the current program — the Vanuatu-Australia Policing and Justice Program (VAPJP) — is in its second phase, with the design updated in 2020 to map out Australia’s continued support. The end of program outcomes for the VAPJP are improving the quality and reach of justice and policing services; women, children and youth increasingly accessing state policing, justice and community services; and policing and justice agencies continuing to maintain public security and the rule of law. As a baseline study for the VAPJP, a telephone based survey of 1016 adults and nine focus groups with 91 participants was conducted in 2022. The key results from this study form the body of this report, along with key implications and recommendations that emerged from the study. Key findings Perceptions of safety… More than 90% of respondents felt very or somewhat safe while at home in the daytime or night and while walking around the community in the daytime. Fewer people (84.2%) felt safe at the weekend, while walking around the community at night (72.7%), or during big celebrations (55.5%).[1]… Not many respondents (13.8%; n=140) indicated they had been a victim of crime in the past 12 months. The most common crime in the past 12 months was assault (23.6%), followed by threatening behaviour (16.4%) and theft (15%). Domestic violence was the fourth most common.Just under half (45%) of this small cohort had not reported being a victim of crime to the police. Reasons for not making a formal report or statement to the police included dealing it with themselves (44.4%) and that the crime was not important (28%). Statistical analysis revealed no significant differences by age, gender or other socio-demographic variables. Approximately two-thirds of survey respondents — between 62.2% and 69.6% — believed police have improved in the past two years across six police functional areas, including providing appropriate services to victims of domestic/family violence and keeping communities safe. Criticisms of the police were made in every focus group, with young people talking about poor relations between young men and police, and poor behaviour by the police often resulting in violence by police towards young men…[2]More than half of the survey respondents in the current study said it was either very easy or somewhat easy to access police services when they needed them, but one in 10 did say they were inaccessible. What was apparent from the survey results and focus group discussions was that the police are often only called upon when their assistance is needed because the matter is important, or they are the only ones seen as being able to deal with the particular crime or situation. In many cases the police are being contacted by phone — to report a crime or to contact them for other matters — and it is not known from the responses whether the call was answered or whether the police responded appropriately and in a timely fashion. Certainly, in the focus groups, there were complaints about having to fund the police to visit a village or community, and their slowness to respond to and progress the case. When the police do respond to a request for assistance, the survey indicates that most people are satisfied with how they handle an enquiry or a report of a crime. The majority (65.9%) of those who had contacted the police in the past year were satisfied or very satisfied with the way police handled their enquiries. There was a slightly lower proportion of respondents (52%) who had reported a crime who were either very or somewhat satisfied with the way the police addressed the report. Although there were some positive comments, the most trenchant criticisms of the police were heard during the focus groups, especially from young people, in which much was said about the often poor relations between young men and police, with instances of bullying and undue physical force by police being referred to.[3][1] ‘The Vanuatu-Austrlia Policing and Justice Services Study’, May 2023, Putt & Dinnen, Department of Pacific Affairs, Australian National University at page 1[2] Ibid at page 2.[3] Ibid at pp 37 and 38.

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 15 November 2023, and the annexed copy of the applicant’s bio data page of his Vanuatu passport, and four media screen shots of photos of apparent damage to property with the corresponding media news titles of ‘All clear given in Vanuatu, Lola downgraded to Ex-Tropical Cyclone’; ‘Tropical Cyclone: Schooling disrupted for thousands of students in Vanuatu’, dated 28 October 2023; ‘Vanuatu: Pacific nation reels from twin cyclones and earthquake’; and ‘Tropical Cyclone Lola: Two people reported dead in Vanuatu’, dated 30 October 2023. ·The applicant’s application for review of 4 March 2024, and the annexed Decision Record of 7 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 left Vanuatu because he has a profound fear and apprehension regarding the frequent occurrences of natural disasters in Vanuatu and the persistent threat of hurricanes, cyclones, earthquakes and volcanic eruptions instils not a just a challenge for him but a genuine and profound sense of anxiety of these events and make it extremely difficult for him to even entertain the idea of returning to Vanuatu;·The constant worry for his safety and well-being given the devastating consequences of these natural occurrences weighs heavily on his mind and as a result contemplating a return to Vanuatu where such risks persist is genuinely terrifying him; ·He did not experience any harm in Vanuatu and does not think he will be harmed or mistreated if he returns to Vanuatu, but he does fear the consequences of natural disasters;·He tried to move to another part of Vanuatu to seek safety but found it challenging because of his limited financial resources;·He fears returning to Vanuatu as he will experience economic hardship because he will not have a place to reside and no financial means to buy land and build a house; and·He does not believe that the Vanuatu authorities can protect him because the government does not have any effective solutions for natural disasters and their inadequate response is marked by the absence of any financial assistance or a financial safety net.Department interview