2405987 (Refugee)

2405987 (Refugee) [2024] AATA 4154 (30 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2405987
COUNTRY OF REFERENCE:                   Vanuatu
MEMBER:Khanh Hoang
DATE:30 August 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 30 August 2024 at 4:11pm
CATCHWORDS
REFUGEE – protection visa – Vanuatu – land inheritance disagreements and family’s political activities and connections – verbal and social media threats – long residence and work in home country after claimed events – working in Australia to support elderly mother – late claim that father's death and brother’s illness caused by black magic – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), (5), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
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 1 March 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 Vanuatu, applied for the visa on 24 October 2023. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations under either the refugee or complementary protection criterion.
On 8 May 2024, the Tribunal invited the applicant to attend a hearing on 28 May 2024 in order to give evidence and present arguments. On 9 May 2024, the applicant responded that he would attend the scheduled hearing.
On 27 May 2024, the applicant appointed [named person] to be his legal representative. The representative requested that the Tribunal postpone the hearing to allow him time to receive instructions and prepare the case. The representative also requested for the hearing to be conducted visa MS Teams, as the applicant is residing in a remote area of Queensland. The Tribunal agreed to reschedule the hearing for 11 June 2024.
The applicant appeared before the Tribunal on 11 June 2024 to give evidence and present arguments. On the morning of the hearing, and prior to the start of the hearing, the applicant’s representative withdrew his representation. The applicant confirmed the withdrawal at the hearing and supplied the Tribunal with a form confirming that [named person] no longer represented him. As such, the applicant was not represented in respect of the review.
The Tribunal hearing was conducted with the assistance of an interpreter in the Bislama and English languages.
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under either the refugee criterion (s 36(2)(a)) or complementary protection criterion (s 36(2)(aa). For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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.
Applicant’s identity and country of reference
Based on a copy of the applicant’s passport available on the Department’s file, Vanuatu is the applicant’s country of nationality and his receiving country for the purposes of refugee and complementary protection assessments.
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
Before the Department
In his protection visa application, the applicant made claims that can be summarised as follows:
·his family experienced tension over inheritance disagreements in [location]. The applicant petitioned his father to seek council and resolution with the village chief, but no action was taken;
·his father sent him to Port Vila in 2011 to escape the family tension, and avoid the verbal abuse and threats;
·his move to Port Vila ‘went well’ until his family got more involved in Vanuatu politics, and he started getting threats and intimidations. Political issues have intertwined with family issues, and political tension in the family dynamic has put him at further risk of being physically harmed;
·he was ‘constantly harassed, threatened and intimidated’ to the point that it impacted his mental health. His family cannot differentiate between government politics and family politics. Given his rank in the family, he is an easy target, especially as he is not married.
·it is unsafe for him to return because two of his family members have joined politics, and recently one [deleted] after the other helped him to get into politics; and
·he does not feel safe in Port Vila or in [location] owing to the recent ‘commotion’ in his family, and the heighted tensions put him at further risk of being physically harmed.
Section 56 notice and response
On 25 January 2024, the Department sent the applicant a notice pursuant to s 56 of the Act inviting him to provide further details regarding his claims. The notice explained that the applicant’s statement of claims lacked substantiating details.
On 2 February 2024, the applicant provided a written response to the Department. The applicant explained that land in [location] had been passed to his father’s eldest brother, who had prioritised their own children in the distribution of land. The applicant said that this preferential distribution caused tensions within his family, and the applicant’s father thought it best to separate the family from the conflict. The applicant’s father sent him to Port Vila around 2010 or 2011 and suggested he remain there. The applicant did so until tensions arose in 2013.
The applicant claimed that his brother, [Mr A] resides in Port Vila and is the counsellor of [Political Party], and his political activities link him to [Mr B] and [Mr C] in [location]. The applicant claimed that [Mr A]’s political influence have caused his other family members to threaten and intimidate him. He claimed that it is culturally difficult for him to relocate and invest elsewhere within Vanuatu, and he has respected his father’s wishes to remain in Australia. The applicant claimed that [Mr A]’s political influence is not as strong as [Mr B]’s and therefore the authorities cannot protect him.
In addition to the above, the applicant submitted 5 screenshots of social media conversations which he claimed are in relation to coercion, political voting, insults and threats.[1]
Delegate’s decision
[1] Departmental file, [References].
The delegate did not find the applicant’s claims to be credible. The delegate found that the applicant’s response to the s 56 notice did not address the concerns raised therein. In particular, the delegate noted that the applicant had not provided:
·information about his family composition;
·information or documentary evidence regarding family tensions over land inheritance disputes;
·information or documentary evidence to indicate that he is related to [Mr A], that [Mr A] is politically active in Vanuatu, or that his activities are creating political tensions or threats to the applicant; and
·information or documentary evidence indicating why political reasons or political tensions will cause family members to harm him.
Further, the delegate found that while the family tensions began sometime between 2010 and 2013, the applicant did not arrive in Australia until 2023. The delegate found that applicant has demonstrated they were able to safely reside within Vanuatu for a decade without experiencing significant harm, or deprivation of life in the midst of family tension.
Tribunal hearing
The applicant’s background and circumstances
The applicant is now [Age] years old. He was born in [location] and identifies himself as religiously Christian. He is educated to a vocational level, having graduated from [educational institution] in [subject] in 2010.
The applicant’s family comprises of his father who passed away in 2016, his mother who still resides in [location], and [sisters] and brothers. His [sisters] have married, and they reside in other villages. His [brothers] are also married and are currently working in [Country]. The applicant said that he and his brothers are working together to purchase land back home. Prior to arriving in Australia, the applicant resided, from 1 February 2011 to [February] 2023 in a house in Port Vila, which belonged to his cousin and his family. His mother still resides in the family home back in [location], and the land on which the house rests is in dispute.
The applicant worked at [Employer] while he was living in Port Vila. From 2019 to 2022, he spent periods of time working in [Country] as [an occupation]. The applicant arrived in Australia [in] February 2023 on a subclass 403 visa. He currently works on a [workplace].
Pre-hearing submissions
Prior to the hearing, the applicant submitted documentary evidence to the Tribunal that included:
·15 screenshots of social media messages of which some are duplicates; and
·4 images that depict crops, two of which also depict a person holding a knife.
Land inheritance dispute in [location]
I asked the applicant why he feared going back to Vanuatu. The applicant said that he is afraid to go back because of family tensions arising from the inheritance of land. These family tensions have now intertwined with politics. The applicant said that another reason for not going back is because his mother is getting old, and he is working to protect her. He wants to continue working in Australia so that he can purchase land. The applicant said that he is sending money back to Vanuatu to support his mother.
I asked the applicant for more information about the inheritance and land dispute. The applicant explained that his uncle had inherited land back in [location]. In around 2010 or 2011 there was tension between the families on the island because his uncle had decided to pass the land on to his children. The applicant said that his uncle was supposed to share the land with his family too, but he decided not to, and that is when the disputes arose. I asked the applicant about the nature of the dispute, and what he meant by ‘tension’ between the families. The applicant explained that threats were exchanged, and people were being prevented from using the land for the purposes of gardening. The applicant said that the grievance came from his side of the family, who felt that his uncle should have shared the land. The applicant said that his family continue to use the land, but they have been subjected to threats and the destruction of their crops by his other family members.
The applicant said that his father decided it was best for their family to move out. The applicant’s father sent him to Port Vila for school and away from the problems that were arising on the island. His father thought it was best for him to move out, get a job, and buy land for himself. At the time, he was the only one in his family who moved away. His brothers and their families remained on the island in [location]. When the applicant came to know of the seasonal worker program in Australia, he decided to pursue the opportunity.
I asked the applicant why he thought things had escalated, given that his father had attempted to calm things down by moving him away from [location]. The applicant said that the issue remains ongoing, and one cannot do anything good on the island. He said that when his brothers were on the island, if they tried to clear bushes or do gardening, issues would arise. For this reason, his brothers only gardened up to the limit of their land. I asked the applicant if there had been any physical confrontations back in [location] after he had left for Port Vila. The applicant said that every now and then, the other side of the family have damaged crops and gardens belonging to his family, and sometimes his brothers, wife and kids have been threatened with a knife
The applicant said his members of his family have been careful not to encroach on the land that his uncle gave to his children. The applicant said that the other side of the family have stopped his brothers’ children going to school when their lands were crossed or stopped them from getting water. The applicant said this situation made his family members feel as though it is all too much, and that they have to move out. He said that his brothers are all travelling now on various work schemes, and following his father’s passing in 2016, they have considered it a good idea to try and purchase land that is free from any disputes.
I asked the applicant about how the issue of politics have intertwined with the family issues. The applicant said that his cousin, [Mr A], became involved in politics and his family have been following him. He said that his uncle’s family are on the opposite side of politics, and they have queried why he is following this person. The applicant said that political conversations between the families all lead back to the land issues. The applicant said that he had been receiving messages from family members to the effect that ‘if you return to the island, there’s no place for you to do gardening, there’s no space for you anymore.’ I asked if those messages were reflected in the social media screenshot conversations that he had submitted, and the applicant confirmed that was the case.
I put to the applicant my concerns about whether he would face serious or significant harm if he returned to Port Vila, given that he had resided and worked there since around 2011, and it did not appear as through as had suffered any harm. The applicant said that if he were to go back to Port Vila, he would like to go back to a piece of land that he owns. The applicant said he would like to remain in Australia longer to be able to work, make money, and purchase land to move his family to Port Vila when he returns.
I put to the applicant my concern that it appeared as though he does not have a fear of returning to Port Vila, and that the reason he wants to remain in Australia is to earn money and purchase land. The applicant agreed that is the case, and he said that since he has a good job in Australia, he wants to remain here to make money to purchase land. He said he does not know of the current situation of his cousin, who has his own family and whose house is small, so he would prefer to have his own land to bring his family to Port Vila.
Black magic
The applicant raised a claim at hearing about ‘black magic’. The applicant claimed that his father died in 2016 from black magic. The applicant said that his father had a meeting in the village court about the land issue, but it was not resolved, and the following week he passed away. The applicant said that his father had been receiving a lot of pressure about the land issue and his family thought his death could be attributed to ‘black magic’. The applicant said that before his father passed away, he had been receiving some private calls, but they did not know who the calls were from. The applicant said that the following day his father went to the garden and came back and passed away instantly. He said that before his father passed away, his family had seen blood stains on the door and bedrooms, and they knew that it must be from the ‘black magic’. They believed that his passing was due to the land issue.
The applicant also claimed that his brother had fallen ill last year, and he also attributes this to ‘black magic’ and the land dispute. The applicant said that his brother is ok now, and since moving out of the island, they have all decided it is a good idea to purchase land elsewhere and move out to avoid the threats they had received.
I asked the applicant why he could not return to Port Vila and be safe, if he had been resident in Port Vila since around 2010 and had not suffered any harm. The applicant said that while he was residing with his cousin in Port Vila, along with the with threats about voting a particular way and to not return to [location], he had also seen signs of ‘black magic’. I asked the applicant what the signs of black magic were, and the applicant said that he had seen blood stains on the door and in the bedroom at his cousin’s house. However, the applicant could not confirm where the blood stains came from.
I asked the applicant if there were any other reason he feared going back to Vanuatu and the applicant reiterated that he has a secure job in Australia, and he thinks it is better for him to remain here to work and to purchase land.
COUNTRY INFORMATION

I have considered the following country information in reaching my decision.
I note the existence of academic literature which supports a view that belief in ‘black magic’, witchcraft and sorcery are embedded in Melanesian cultures. For example, the academic Miranda Forsyth has explained:[2]
Belief in witchcraft or sorcery has traditionally been a salient feature of Melanesian society, and despite the increasing modernisation of the various societies throughout Melanesia, and their widespread conversion to Christianity, such beliefs continue to be widely held. The belief takes many forms, but these can generally be divided into two categories: belief in evil or 'black' sorcery, where magical powers are used to cause harm to someone or something, and in extreme instances, to kill; and belief in good sorcery, where magical powers are used for positive purposes, such as healing, 'flying' from place to place, finding lost property and curing infertility. There are also a number of types of sorcery that can be either good or evil depending on the circumstances in which they are used, such as weather control magic and magic for attracting lovers. Good sorcery is generally welcomed, but black sorcery often creates fear, tension and hostility in the communities in which it appears. Throughout Melanesia today it is not uncommon for an individual suffering from some kind of misfortune or illness to blame their condition on sorcery, and for the suspected sorcerer to be attacked, banished or even killed.
[2] Miranda Forsyth, "Sorcery and the Criminal Law in Vanuatu," LawAsia Journal 2006
Forsyth and Eves note that such beliefs remain resilient across Melanesia and give rise to a range of social problems and influence many aspects of day-to-day life:[3]
The belief that illness, death and misfortune of all sorts is frequently caused by the deliberate interventions of individuals with special powers or magical knowledge is pervasive throughout Melanesia. As a result, sorcery and witchcraft beliefs and practices exert a powerful influence on many aspects of day-to-day life, as well as being significant vectors for community tensions, conflict and violence. Moreover, rather than disappearing under the influence of Christianity and modern life, sorcery and witchcraft practices and beliefs are proving extremely resilient, with many claiming that they are increasing and spreading. In recent years, most of the attention given to the problems arising from sorcery and witchcraft beliefs and practices has been on the attacks and killings of accused sorcerers and witches. Three widely publicised events in 2013 and 2014 brought these forcibly into public focus. In Mount Hagen in 2013 a woman was tortured and then burnt alive in front of hundreds of onlookers, including members of her community and police officers. Later that year, a female teacher in Bougainville was publicly tortured and beheaded. Then, in November 2014, two men in Vanuatu were publicly hanged in a community hall following accusations that they had been practising witchcraft. However, sorcery and witchcraft beliefs and practices also give rise to a range of social problems that are not as visible, including the retarding of economic development, poor public health, undermining of social cohesion, incentivising crime and creating insecurity.
[3] Miranda Forsyth and Richard Eves, The Problems and Victims of Sorcery and Witchcraft Practices and Beliefs in Melanesia: An Introduction in Miranda Forsyth and Richard Eves (eds), Talking it Through: Responses to Sorcery and Witchcraft Beliefs and Practices in Melanesia, ANU Press, 2015, p 1.
FINDINGS AND REASONS
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. 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. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
Findings of fact
Having considered carefully the applicant’s oral and documentary evidence, I accept the following aspects of the applicant’s claims.
I accept that the applicant’s uncle inherited land in [location] and gave preferential treatment to his children in respect of the distribution of land. I accept that this caused tensions between the applicant’s family and his uncle’s side of the family. I accept that the applicant’s father thought it was best for the applicant’s family to move out and that he sent the applicant to reside in Port Vila in around 2010/2011.
I further accept that tensions between the families on [location] escalated in 2013, that these tensions remain, and are intertwined with the political views of the families. Having regard to open-source country information, I am willing to accept that the applicant supports [Mr A], whereas his uncle’s side of the family support the opposite side of politics. I accept that [Mr A] has been involved in Vanuatu politics.[4]
[4] [Deleted].
I have considered the documentary evidence before me and I am willing to accept that tensions between the families on [location] have resulted in the applicant’s family having their crops cut, his brother’s children prevented from encroaching on the lands of his uncle’s family, and that his family on the island have been threatened with a knife. Although the social media screenshots submitted by the applicant are not translated, and it is unclear exactly with whom he is conversing with, I am willing to extend the benefit of the doubt to the applicant. I also accept that the applicant has been told by family members on his uncle’s side not to return to [location] because there is no land for him to work on, and I accept the messages demonstrate some tensions with respect to their differing political views and alliances.
However, I do not accept that the applicant’s father was killed by way of ‘black magic’ as a result of the land inheritance dispute. Nor do I accept that his brother was harmed by ‘black magic’. While I accept the country information above that beliefs in ‘black magic’ are resilient across Melanesia, I consider the applicant’s claims that his family members were harmed by ‘black magic’ — presumedly at the hands of family members on his uncle’s side — to be highly speculative. I do not accept that the mere presence of blood stains supports a conclusion that his father and brother were harmed by way of ‘black magic’. In these circumstances, there is nothing before me to support the applicant’s assertions that his father or brother were harmed by ‘black magic’. Nor is there anything to suggest that his father’s death is attributable to the land dispute.
Refugee findings
In order to meet the refugee criterion, the applicant must have a well-founded fear of persecution as set out in s 5J. I note 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 though the possibility of the persecution occurring is well below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.
I find that if returned to Vanuatu, the applicant would likely return to Port Vila, where he had resided since around 2011. The applicant did not suggest at hearing that he would seek to return to [location] in the reasonably foreseeable future. Indeed, his evidence throughout was that he wanted to remain in Australia to work, make money, and to purchase land in Port Vila to relocate his family there.
I do not accept the applicant’s claims — to the extent that it was implied — that he might face harm in the form ‘black magic’ if he were to return to Port Vila. I consider it speculative that the presence of blood in his cousin’s home in Port Vila means that the applicant will be harmed by ‘black magic’ upon return. Indeed, the applicant’s evidence at hearing was that he could not explain how those blood stains appeared. I consider it a far-fetched and remote possibility that he would be harmed by his uncle’s side of the family using ‘black magic’ in the reasonably foreseeable future.
I am willing to accept the applicant has, and may continue to receive through social media messaging, verbal threats from his uncle’s side of the family not to return [location] where there would be no land for him to work with. I also accept the applicant may continue to receive social media messages from his family that voice their displeasure at his political support for [Mr A]. While I accept that this would cause him some amount of stress, having regard to s 5J(5), I do not consider that it amounts to a threat to his life or liberty. Nor do I consider that the applicant would be subjected to any significant physical harassment or significant physical ill-treatment as a result of such social media messages, including, as I have found above, being harmed by his uncle’s side of the family through the use of ‘black magic’.
When I consider the applicant’s particular circumstances, I give considerable weight to the fact that he has been shielded from the land dispute on [location] by virtue of his residence in Port Vila. I consider it significant that the applicant had been able to reside and work in Port Vila for nearly a decade since the tensions escalated between the families in [location], without suffering any serious harm. Noting my findings above, the weight of evidence supports a conclusion that the applicant could return to Port Vila in the reasonably foreseeable future without facing a real risk of serious harm.
I have also, in assessing the applicant’s claims to have well-founded fear of persecution, attached some weight to his evidence throughout the hearing that his brothers are currently working in [Country], and of their collective desire to all work together to purchase land. The applicant himself repeated alluded to his desire to return to Port Vila in a position that would enable him to purchase land. This suggests that the focus of the applicant and his family, now and in the reasonably foreseeable future is to acquire land of their own. I consider the applicant’s evidence in this regard supports a finding that he does not have a strong subjective fear of serious harm in Port Vila.
Having considered the totality of applicant’s claims, individually and cumulatively, and for the reasons above I am not satisfied that there is a real chance the applicant will suffer any treatment amounting to serious harm if he were to return to Vanuatu in the reasonably foreseeable future. He does not have a well-founded fear of persecution and is not a refugee under s 5H(1). I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Complementary protection findings
I will now consider whether the applicant meets the alternative criterion in s 36(2)(aa). In MIAC v SZQRB, the Full Federal Court held that the ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the refugee criterion’.[5] I have found above that there is not a real chance the applicant would suffer persecution on account of the land dispute, his political opinion, or by way of ‘black magic’. For the same reasons, I also find that the applicant would not face a real risk of significant harm.
[5] Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
On the evidence before me, I am not satisfied that there exist 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’. I am not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Khanh Hoang
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.
…

(2006), pp 1-2.

[2024] AATA 4154

30 August 2024

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

Statutory Construction