0907346
COURT OR TRIBUNAL
Refugee Review Tribunal of Australia
DATE FILED (OR FIRST HEARING DATE)
10/12/2009
LITIGATION TYPE
Constitutional and Human Rights / State Accountability
SUBJECT MATTER
Human rights and refugee claims
REVIEW TYPE
Merits review
SUMMARY
The Applicant was a national of Kiribati who sought a review of a Department of Immigration and Citizenship decision to refuse him grant of a Protection (Class XA) visa in August 2009. The Tribunal considered the application against the definition of ‘refugee’ in Convention Relating to the Status of Refugees 1951 art 1A(2), as qualified by Migration Act 1958 (Cth) s 91R, 91S. The Tribunal considered whether Australia owed protection obligations to the Application against five key elements: (a) whether the Applicant was outside of his country of nationality, (b) whether he feared persecution - involving ‘serious harm’, systematic and discriminatory conduct with an element of motivation, (c) whether such persecution was for Convention reasons of race, religion, nationality, membership of a particular social group or political opinion, (d) whether the Applicant’s fear of persecution for Convention reasons was ‘well-founded’, (e) whether the Applicant was unable or unwilling to avail himself to the protection of his country due to that fear. The Applicant submitted that basic living and working conditions were quickly deteriorating in Kiribati due to sea level rise, groundwater salinization and king tides resulting from climate change. The application included evidence from the IPCC that Kiribati could be completely submerged by 2050. The Applicant submitted that although existing laws failed to recognize people affected by climate change as a group in need of protection, that ‘existing protection visa laws can, and should, be creatively interpreted to accommodate climate change refugees in the absence of specific provisions in the Migration Act 1958 (Cth)’. Specifically, that ‘those fleeing their home country for environmental reasons should be defined as a particular social group to whom Australia had protection obligations’. The Tribunal considered the Applicant unable to establish that he feared persecution for a Convention reason. Further, that there was no scope that the law as it stands in Australia to allow for the protection under the Convention of those in the situation of the Applicant. The Tribunal upheld the decision not to grant the Applicant a protection visa.
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