2404043 (Refugee)

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 application for review.
As noted above, the applicant provided a copy of the delegate’s decision to the Tribunal. The Tribunal has read that decision and notes the decision records the delegate’s decision to refuse the applicant a protection visa having considered the material before the delegate. The Tribunal is satisfied that the decision of the delegate is reviewable under s 411(1)(c) of the Act.
The applicant appeared before the Tribunal on 23 May 2024 by telephone to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Bislama and English languages.
The applicant was not represented in relation to the review.
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.
The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even when the possibility of persecution is below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
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.
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 EVIDENCE
Issues
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
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.
As to the Judiciary in Vanuatu, the United States Department of State in their report on human rights practices in Vanuatu in 2020 reported that:
There is an independent and impartial judiciary for civil matters, including human rights violations. The government, including police, generally complied with court decisions on human rights violations.[4]
[4] ‘Country Reports on Human Rights Practices for 2022 – Vanuatu’, US Department of State, 20 March 2023, p 4.
Review hearing – 23 May 2024
The Tribunal conducted the applicant’s hearing via a telephone link as that applicant was unable to connect to the hearing via a video conference.
The Tribunal then explained to the applicant that the hearing would consider the applicant’s application for a protection visa afresh.
Under questioning, the applicant informed the Tribunal, that he had paid another person to complete his application for the visa.
The applicant, when questioned by the Tribunal as to his understanding of the relevant statutory framework and concepts as to the refugee and complementary protection criteria, said that he had not ever received any explanations about the criteria and that he did not have any understanding of the criteria.
Given the applicant’s explanation that he did not have any understanding of the criteria, the Tribunal provided a brief outline of the refugee and complimentary protection criteria to the applicant. The applicant then acknowledged that he understood the criteria, and under questioning, told the Tribunal that he had applied for the protection visa so he could continue to work in Australia.
The applicant further told the Tribunal that he had not been harmed in Vanuatu and did not hold any fears of being harmed if he was to return to Vanuatu in the future.
The applicant told the Tribunal that he had come to Australia in February 2023 to make money from working in Australia. He explained that he had arrived on a nine-month working visa and had since decided to stay so he can earn more money in Australia. He explained that he had obtained work with an Australian company and after arriving in Sydney the company organised his travel to [Town 1] where he was accommodated and worked on a [farm] for nine months.
The applicant told the Tribunal that after his visa had expired, he had decided to look for more work elsewhere in Australia as he had experienced some issues with his boss in [Town 1].
Under questioning, the applicant told the Tribunal that he had applied for the protection visa so he could obtain working rights. He explained that after leaving [Town 1] he had obtained work in [Town 2], Western Australia with a [company] where he continued to work.
When asked what would happen to him if he was to return to Vanuatu, the applicant told the Tribunal that he would return and live with his wife, [children], aged [Ages] who live with his stepparents in Port Villa. He further explained that he had previously worked in Port Villa as [an occupation 1], and he would likely return to that job on any future return to Vanuatu.
Under questioning the applicant told the Tribunal that he had been able to support his family with his earnings from [that work] but that he had been able to earn more money by working in Australia and that provided him with more money to assist his family and support himself.

In reply to the Tribunal again explaining the refugee criterion, the applicant told the Tribunal that he did not fear being persecuted and harmed for reasons of race, religion, nationality, membership of a particular social group or political opinion.
Under further questioning, the applicant told the Tribunal that he did not fear facing the arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment or degrading treatment or punishment.
However, when the Tribunal further discussed with the applicant that he did not fear being harmed in Vanuatu but rather wanted to stay in Australia for economic reasons, the applicant then told the Tribunal that he did hold fears for his safety in relation to returning to Vanuatu on the future.
The applicant under further questioning, told the Tribunal that he was originally from a village on the Vanuatu Island of [Island]. He said that his village and a nearby village had been in a long-standing dispute over lands in the area and that the dispute was still before the traditional courts in Vanuatu, and he had recently been asked to contribute money towards the village’s legal expenses. He told the Tribunal, that his birth father had passed away in 2001 after developing a large cyst on his back and that his birth mother had also passed away 2018. Although the applicant agreed that his birth parents had passed away from natural causes he told the Tribunal that there were people who used witchcraft in his home island of [Island] and his parents may have been killed by witchcraft over the land dispute.
The applicant then told the Tribunal that he had relocated with his wife and family in 2018 from [Island] to Port Villa where his family moved in with his stepparents.
Under questioning, the applicant told the Tribunal that after relocating to Port Villa in 2018 and since that date, he and his family had not been the subject of any threats of harm and/or any harm as a result of the land dispute between his village and the neighbouring village on [Island].
The applicant also agreed under questioning, that if he and/or his family so needed they could obtain assistance and protection from the Vanuatu police as to any threats or fears of harm that may arise from the village land dispute in [Island]. Under further questioning, the applicant also agreed that he could relocate permanently to Port Villa where he would not be in danger of any harm arising from the land dispute in [Island].
The applicant was then taken through the claims in his application for the visa which related to his fear and apprehension of occurrences of natural disasters. In reply, the applicant told the Tribunal that he did hold those fears as to the weather in Vanuatu as it often rained and there were storms and other disasters that can cause damage to his family’s home and negatively affect his ability to work and earn a living. However, under questioning the applicant agreed that the occurrence of natural disasters were environmental factors in Vanuatu that affected all of the population and that they were not specific to him and his family.
FINDINGS AND REASONS
The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa.
Country of reference
According to his protection visa application, the applicant claims to be citizen of Vanuatu and provided a copy of his Vanuatu passport to the Department. Based on this material, the Tribunal finds that the applicant is who he says he is, and a national of Vanuatu. Vanuatu is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.
Analysis
The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.
The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[5] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish, or assist in establishing, the claim.[6] This is consistent with the established proposition that it is for the applicant to make his or her own case.[7]
[5] Section 5AAA of the Act.
[6] Ibid (with effect from 14 April 2015).
[7] Abebe v Commonwealth (1999) 197 CLR 510 at [187].
The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal; that all of the statutory elements are made out. A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.
The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[8] In this regard the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[9]and notes that in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.
[8] Fox v Percy (2003) 214 CLR 118
[9] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.
In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[10] A similar approach is taken in the Department’s Refugee Law Guidelines[11] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[12] which both provide useful guidance for this Tribunal.
[10] SZLVZ v MIAC [2008] FCA 1816 at [25].
[11] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)
[12] UNHCR, re-issued February 2019 at [203]–[204].
Natural disasters & Economic claims – refugee claims
The applicant claims that he fears returning to Vanuatu because he has a profound fear and deep apprehension regarding frequent occurrences of natural disasters in Vanuatu and the constant threat of hurricanes, cyclones, earthquakes and volcanic eruptions instils not 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 due to the risk to his safety and well-being.
The applicant also claims in his application and in evidence at the hearing, that he did not experience any harm in Vanuatu and does not think he will be harmed or mistreated if he returns to Vanuatu.
The applicant at the hearing, clarified his claims of fearing harm in Vanuatu because of the occurrences of natural disasters by explaining that he will experience economic hardship if further disasters occur as he will not be able to work as [an occupation 1]. He further explained that as he cannot earn the same level of income if he returns to his former employment in the [work sector] in Vanuatu than he presently has been able to earn as [an occupation 2] in Western Australia he will be economically disadvantaged.
However, it was also the applicant’s evidence at the hearing that he had been able to support himself and his family in Port Villa, Vanuatu prior to his most recent arrival in Australia from his income there as [an occupation 1]. Further, he told the Tribunal that he and his family were not harmed in Vanuatu and that he did not have any fears of being harmed as a result of any future return to Vanuatu.
In this regard, it was the applicant’s evidence that he had come to Australia to make money and that he wanted to remain in Australia because he could earn more money here than he would likely earn in Vanuatu.
After careful consideration of the applicant’s claims as to fearing natural disasters and his further economic claims, and noting that it was the applicant’s evidence at the hearing that he had not experienced any harm in Vanuatu nor did he believe he would be harmed in Vanuatu; the Tribunal finds that the applicant’s claims of fearing harm from natural disasters and the poor economic situation in Vanuatu do not relate to any of the reasons outlined in s 5 J(1)(a) of the Act.
Therefore, on the evidence before it, and for the reasons outlined above, the Tribunal finds that the applicant does not face a real chance of persecution involving serious harm if he was to return to Vanuatu in the reasonably foreseeable future on account of the occurrences of natural disasters and the economic situation in Vanuatu.
The Tribunal finds that the applicant’s fears in this regard, are not well-founded.
Natural disasters & Economic claims – complementary considerations
Additionally, the Tribunal has also considered whether the applicant’s fears of natural disasters and economic claims could amount to the applicant facing any form of ‘significant harm’. First, as acknowledged by the applicant under questioning during the hearing, the occurrence of natural disasters and the economic situation in Vanuatu are both risks that are faced by the population at large. Therefore, the Tribunal finds, that there is not a real risk that the applicant would suffer ‘significant harm’ if he was to return to Vanuatu, s36(2B)(c) of the Act.
Second, as to ‘significant harm’ in the context of cruel or inhuman treatment or punishment and degrading treatment or punishment, both these forms of ‘significant harm’ are defined in s 5(1) of the Act and require an intentional act or omission of a perpetrator to inflict the requisite level of harm. The Tribunal finds that there is no information and/or evidence before it, that indicates that there would be a perpetrator of any such harm in relation to the applicant.
Therefore, on the evidence before it, and for the reasons outlined above, the Tribunal is not satisfied that the occurrence of natural disasters and the economic situation in Vanuatu that the applicant claims to fear, amounts to ‘significant harm’ under s 36(2A) f the Act.
Land dispute & witchcraft – new claim – refugee considerations
At the hearing, the applicant raised a new claim, that he held fears for his safety because of a land dispute between his home village and a neighbouring village on [Island]. It was the applicant’s evidence in this regard, that there had been a long standing and ongoing land dispute between his family’s village and their neighbouring village over lands between the villages and that this dispute had involved some violent clashes between members of the two villages in the past. The applicant told the Tribunal, that he had been involved in one such confrontation in 2018 in which he suffered an injury to his hand that had required treatment at the local clinic. The applicant told the Tribunal, that he now feared returning to his family’s traditional home village on [Island] because of the continued violence in that area arising from this land dispute.
The applicant in this regard, told the Tribunal that although his biological parents had both passed away on [Island] from natural causes in 2001 and 2018, they may have succumbed to their respective illnesses because of witchcraft from their village’s enemies. He told the Tribunal, that he believed that witchcraft was commonly used by some practitioners in Vanuatu and especially so on [Island]. He further told the Tribunal, that he feared being harmed by a practitioner of witchcraft from his village’s enemies because of the ongoing land dispute.
However, under questioning at the hearing, the applicant agreed that after the death of his biological mother in 2018 he and his family had relocated from their village on [Island] to Port Villa to live with his stepparents. He told the Tribunal that he had worked as [an occupation 1] in Port Villa up and until he travelled to Australia for work in 2023. He further told the Tribunal that his wife and [children] continue to live with his stepparents in Port Villa. It was also the applicant’s evidence at the hearing, that prior to his departure for Australia in 2023 he and his family had not been the subject of any harm or threats of harm arising from the land dispute on [Island] while living in Port Villa. Further, it was the applicant’s evidence, that he and his family could if they needed to do so, obtain assistance and protection from the Vanuatu police in relation to any threats of harm and/or instances of harm including threats of witchcraft arising from this land dispute on [Island].
As to the applicant’s new claim, that he fears harm because of the land dispute on [Island] the Tribunal has considered s 423A of the Act as to how the Tribunal is to deal with this new claim or evidence. Section 423A of the Act, provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence, if an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made. In such circumstances the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made, or evidence not presented, before the primary decision was made.
Although the applicant did not provide any reason as to why he had not raised this claim and/or evidence before the primary decision was made, the Tribunal notes that another person had completed his application for the visa. The Tribunal after careful consideration, has accepted that another person having completed his application is a reasonable explanation as to why this claim and/or evidence was not presented before the primary decision was made.
However, it was the applicant’s own evidence under questioning, that after relocating from [Island] to Port Villa in 2018, he and his family had not been further harmed and/or threatened with any harm including any form of witchcraft arising from the land dispute involving his family’s village. The applicant at the hearing, also agreed that he could safely return to Port Villa where his wife and children currently reside with his stepparents and return to his former work as [an occupation 1] and where he would be safe from the land dispute violence on [Island]. It was also the applicant’s evidence that if he needed to do so, he could obtain assistance and protection from the police in Port Villa. The Tribunal in this regard, notes that as outlined above at paragraphs 21 and 22 there is a capable and independent police force and Judiciary operating in Vanuatu.
Therefore, on the evidence before it, and for the reasons outlined above, the Tribunal finds that the applicant does not face a real chance of persecution involving serious harm if he was to return to Vanuatu in the reasonably foreseeable future on account of the land dispute and witchcraft related to same on [Island] in Vanuatu as he can relocate to Port Villa and if so needed obtain protection from an authority of Vanuatu.
The Tribunal finds that the applicant’s fears in this regard are not well-founded.
Land dispute & witchcraft – new claim – complementary considerations
Additionally, the Tribunal has also considered whether the applicant’s claims as to his fears of harm arising from violence and/or witchcraft from the land dispute on [Island] could amount to the applicant facing a real risk of any form of ‘significant harm’. However, as acknowledged by the applicant under questioning during the hearing, the applicant has in the past relocated to Port Villa where he has been safe and where he did not face any risk of harm arising from the land dispute in [Island]. Further, and in accordance with the country information, as has been outlined above, it was the applicant’s evidence that if he so needed, he could obtain assistance and protection from the Vanuatu police.
Therefore, on the evidence before it, and for the reasons outlined above, the Tribunal finds that the applicant can relocate to Port Villa and/or elsewhere within Vanuatu from the island of [Island] where there would not be a real risk that the applicant would suffer significant harm, s 36(2B)(a). Additionally, the Tribunal also finds that the applicant could obtain from an authority of Vanuatu protection such that there would not be a real risk that the applicant would suffer ‘significant harm’, s 36(2B)(b).
Refugee criterion
Based on the information before it, the Tribunal rejects the applicant’s claims of fear of persecution in their entirety and, having considered all of the applicant’s claims both individually and cumulatively, finds there has been no evidence of persecution or fears of persecution for the reasons provided in s 5J of the Act. Therefore, the Tribunal finds that the applicant does not face a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal finds that the applicant’s fears of persecution are not well-founded as required by s 5J of the Act and therefore, the applicant is not a refugee within the definition of s 5H of the Act.
For the reasons provided 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) of the Act.
Complementary protection
Having concluded the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has also considered whether the applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.
As noted above, the Tribunal is not satisfied that any of the applicant’s claims meet the refugee criterion. It is for the same reasons that the Tribunal is not satisfied that the applicant meets the refugee criterion, and that his claims relate to matters faced by the population at large in Vanuatu, and that the applicant if he so needs, can obtain protection from an authority of Vanuatu, that it is also not satisfied that the applicant meets the complementary protection criterion. Given the evidence before it, the Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant 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.

The Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
Additional findings
Additionally, there is no suggestion that the applicant satisfies 36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa.
As the Tribunal has found that the applicant does not meet the refugee and complimentary criteria and does not satisfy the criteria in s 36(2) of the Act the Tribunal has not found it necessary to assess s 36(3) of the Act as to whether the applicant has a right to enter and reside in a country other than Vanuatu.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
David James
Senior 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 1805

24 May 2024

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