2411774 (Refugee)
[2024] AATA 3876
•30 June 2024
2411774 (Refugee) [2024] AATA 3876 (30 June 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2411774
COUNTRY OF REFERENCE: Vanuatu
MEMBER:Rebecca Lee
DATE:30 June 2024
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.
Statement made on 30 June 2024 at 7:20am
CATCHWORDS
REFUGEE – protection visa – Vanuatu – religion – protestant – removal of cross from church – participation in protest – beaten – detained – no response to tribunal communication – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 425, 441A(5), 499
Migration Regulations 1994 (Cth), Schedule 2CASES
MIAC v SZQRB (2013) 210 FCR 505
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155 at 169-70).
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347Any 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 29 April 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant arrived in Australia:
(a)for the first time [in] July 2016, departing [in] January 2017,
(b)for the second time [in] August 2017, departing [in] February 2018; and
(c)on the last occasion [in] September 2021, and has not departed since.[1]
[1] Movement record – 14 June 2024; delegate’s decision.
The applicant who claims to be a citizen of Vanuatu, applied for the Class XA (Subclass 866) Protection visa on 3 November 2023.
The applicant provided the Tribunal with a copy of the delegate’s decision. The delegate refused to grant the visa on the basis that they found all of the claims made by the applicant are not credible on the information before them.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CLAIMS AND EVIDENCE
Before the Department
According to information contained in their protection visa application, the applicant is [an age]-year-old Vanuatuan citizen who was born in [Vanuatu]. Further, the applicant:
·belongs to the Vanuatuan ethnic group, was born to Vanuatu citizens, and is Christian;
·had never studied or been employed;
· can speak, read, and write in the English language;
· had never been married;
· had not undertaken any overseas travel in the last 30 years;
·was making their own claims for protection and did not receive assistance from an interpreter or anyone else to complete the application.
In relation to their claims for protection, the applicant claimed they left Vanuatu because the Vanuatu government orchestrated the attempt to and removal of a cross from the applicant’s Protestant church. Upon protesting, the applicant was beaten and humiliated by security guards. The applicant was taken to the police station, beaten and humiliated, and held for two weeks. This demonstrated to the applicant that Protestant believers like him were disrespected and dishonoured by the Vanuatuan government.
The protection visa application contains a warning that giving false or misleading information is a serious offence. In submitting the application, the applicant declared that they had provided complete and correct information in every detail on the form (and any attachments) and had read and understood the information provided to them in the application, which included that the applicant must provide all the details about why they were seeking protection and that the applicant may not be given another opportunity to present their claims as a decision may be made on the information in the application.
On 8 November 2023, the applicant was sent correspondence noting that for all claims, supporting documentation should have been provided with the protection visa application and advising that the applicant could bring any additional information they would like to be considered to the appointment for the collection of personal identifiers or otherwise provide it to the Department.
On 18 December 2023, the applicant was sent correspondence advising that more information was needed to assess the protection visa application, being why the applicant delayed making the protection visa application between September 2021 and November 2023. It was further noted that the applicant did not provide key details of or evidence in support of his claims of being beaten by the police and security guards after attending a protest, against removing the cross from his Protestant church, and the lack of detail or evidence raised concerns about the genuineness of the applicant’s claims. The delegate invited the applicant to provide more information and documentary evidence in support of the claims and set out a series of questions for the applicant to answer.
The Department did not receive a response to the 18 December 2023 letter or any further information or documentary evidence from the applicant.
On 28 February 2024, the applicant was sent correspondence inviting him to comment on the Department’s concern that he travelled to Australia [in] July 2016 and [August] 2017 and departed Australia [in] February 2018 under another identity and that the applicant’s identity was not that under which he entered Australia [in] September 2021.
The Department did not receive a response to the 28 February 2024 letter or any further information or documentary evidence from the applicant.
Protection visa application interview
The Department did not invite the applicant to attend an interview.
Before the Tribunal
The review application
On 13 May 2024, the applicant lodged an application for review of the delegate’s decision with the Tribunal.
On 14 May 2024, the Tribunal wrote to the applicant acknowledging receipt of the review application and stating that if they wished to provide material or written arguments for the Tribunal to consider, they should do so as soon as possible. The included information sheet advised that if the applicant had any material not yet provided, which they believed supported their application, including a statement setting out why they disagreed with the delegate’s decision, then they were to send it as soon as they could.
On 13 June 2024, the applicant was invited under s 425 of the Act to appear before the Tribunal on 28 June 2024 at 10:00 am (AWST). The hearing invitation stated that the Tribunal had considered the material before it, but it was unable to make a favourable decision on that information alone and asked the applicant to provide all documents on which he intended to rely to support his case by 21 June 2024.
The Tribunal did not receive a response to its correspondence of 14 May or 13 June 2024.
The Tribunal sent the applicant a SMS reminder to the applicant’s registered mobile number about the hearing five business days before the scheduled hearing.
The applicant did not appear before the Tribunal on the day and at the scheduled time and place. The Tribunal records show that when the review applicant failed to appear at the hearing, they were called twice on their registered mobile number, with the call going to voicemail.
Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s 441A(5), the invitation has not been returned to sender, and that a SMS reminder was also sent to the applicant about the hearing.
The Tribunal records also show that the applicant has not engaged with the Tribunal, other than to lodge the review application. The applicant did not respond to the hearing invitation and no request for an adjournment was received. At the time of this decision no explanation for the applicant’s non-attendance has been given.
This matter has therefore been determined on the papers and on the evidence available to the Tribunal.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant travelled to Australia on a Vanuatuan passport and claims to be a Vanuatuan citizen. The delegate had concerns about their claimed identity, but not about their nationality, and there is nothing before the Tribunal which raises a concern. The Tribunal finds the applicant is a citizen of Vanuatu and has assessed their protection claim accordingly.
Applicant’s responsibility
The Tribunal’s task of fact-finding may involve an assessment of an applicant’s credibility. The mere fact that a person claims to fear 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, the fact 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 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 (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
It is well established that the Tribunal is not required to accept uncritically any, and all allegations made by an applicant (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451). Nor does the Tribunal have to possess rebutting evidence before holding that a particular assertion was not made out (Selvadurai v Minister for Immigration and Ethnic Affairs (1992) 34 ALD 347 at 348).
REFUGEE GROUNDS
In the protection visa application, the applicant raised claims of being beaten by the police and security guards after attending a protest against removing the cross from his Protestant church in Vanuatu. The Tribunal finds that the applicant did not provide key details of or evidence in support of this claim in the protection via application, nor after being asked to by the Department’s letter of 18 December 2023. The Tribunal also finds that the applicant did not provide any explanation of why he could not provide the information.
The Tribunal finds that the Tribunal advised the applicant in the hearing invitation that it had reviewed the material before it, but it was unable to make a favourable decision on that information alone, and further finds that the applicant has not provided the Tribunal with any additional information or any evidence in support of the claim, nor has he provided any explanation of why he could not do so.
The Tribunal confirms it does not have to accept the allegations before it uncritically. The non-provision of key details and evidence, considering the opportunities given to the applicant to provide the same to the Department and the Tribunal, significantly detracts from the genuineness of the claims for protection in the view of the Tribunal.
The Tribunal finds that the applicant last arrived in Australia [in] September 2021, based on the movement record and delegate’s decision, and the applicant has not provided an explanation as to why he delayed making the protection visa application until 3 November 2023, despite the Department asking for it by letter dated 18 December 2023. The delay and the lack of an explanation for it again detracts from the genuineness of the claims for protection in the view of the Tribunal.
The Tribunal does not accept that the claim is credible, by reason of the lack of detail about the applicant’s claims for protection, the delay in making the protection visa application, the lack of an explanation as to why the applicant waited two years and two months after his last arrival in Australia to lodge the protection visa application, and the failure to provide any information after being advised that the Tribunal could not make a favourable decision on the information before it.
There is no information before the Tribunal that suggests the applicant has a profile that would be of interest to the Vanuatuan authorities or anyone else in Vanuatu. In the absence of any further and supporting evidence, the Tribunal does not accept the applicant’s claim that he is unable to return to Vanuatu due to his religion, that he is Protestant, that he attended a protest opposing the removal of a cross from a church, that he was detained by the police or beaten or humiliated by the police or security guards, and that he was or would be on his return to Vanuatu persecuted by the Vanuatu government/authorities due to his religion. The Tribunal does not accept he was persecuted or harmed for any reason.
The Tribunal is not satisfied that there is a real chance that the applicant will be harmed in the reasonably foreseeable future if they returned to Vanuatu because they hold Protestant beliefs or because the Vanuatuan government/authorities would persecute the applicant, because it does not accept the claim as credible.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
COMPLEMENTARY PROTECTION
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
The Tribunal finds that there are not substantial grounds for believing that there is a real risk the applicant would suffer significant harm as a necessary and foreseeable consequence of being removed to Malaysia. This is because the Tribunal found that the applicant does not face a real chance of serious harm, and so the Tribunal also finds the applicant does not face a real risk of significant harm (as per MIAC v SZQRB (2013) 210 FCR 505).
Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
FAMILY UNIT
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 any of the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Rebecca Lee
MemberATTACHMENT - 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.
…
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Statutory Construction
-
Natural Justice
0
5
0