1414888 (Refugee)

[2016] AATA 3105

1414888 (Refugee) [2016] AATA 3105 (19 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1414888

COUNTRY OF REFERENCE:                  Tonga

MEMBER:Gabrielle Cullen

DATE:19 January 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 19 January 2016 at 12:28pm

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 dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Protection (Class XA) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, a citizen of Tonga, born in Tonga lived there from his birth in [year] until his departure for Australia [in] August 1997 as the holder of a [temporary] visa. [In] August 2001 he applied for a protection visa claiming he feared return on account of political reasons. He claimed that under the Tongan Constitution, the King has exclusive power to appoint ministers and it is not by the people. He claimed he believes this to be politically wrong. He claims he may end in jail for publicly questioning the political system in Tonga. He claimed the police or Minister of Police will place him in jail if he makes any public comment about the political system in Tonga.

3. The delegate refused to grant the visa [in] October 2001 on the basis that even though the applicant may face trouble for criticising the King or government officials there is a judicial system which can be relied upon by its citizens to protect their rights.

4. [In] August 2014 the Department wrote to the applicant and advised that he was not correctly notified of its decision. It advised him that the period within which he can apply for merits review of the decision does not commence until he is taken to have received the letter.

5. The applicant applied to the Tribunal for review on 2 September 2014 and attached the Department decision to the application.

6. The applicant appeared before the Tribunal on 21 December 2015 to give evidence and present arguments and where relevant the evidence from that hearing appears in this decision.

7. The issues to be considered in this case are as follows.

   ·Is the applicant credible as to his claims?

   ·Does he have a well-founded fear of persecution in relation to Tonga and meet the protection obligation under the Migration Act?

   ·Does he meet the protection obligations under the complementary protection provisions of the Migration Act?

   RELEVANT LAW

8. Under s.65(1) a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied. The criteria for a protection visa are set out in s.36 of the Act and Part 866 of Schedule 2 to the Migration Regulations 1994 (the Regulations). As a result of amendments to the Act, some of the criteria in s.36 do not apply to visa applications made before 1 October 2001. However, the criteria in cl.866.221 of the Regulations, as applicable to this application, broadly reflect the criteria for a protection visa in s.36(2) of the Act. An applicant for the visa must meet one of the alternative criteria in cl.866.221(2), (3), (4) or (5): cl.866.221(1). That is, the applicant is either a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention), or on other ‘complementary protection’ grounds, or is a member of the same family unit as a person to whom Australia has protection obligations under either the Refugees Convention or the complementary protection grounds and that person holds a protection visa.

   Refugee criterion

9. Clause 866.221(2) is satisfied if the Minister is satisfied that the applicant for the visa is a person to whom Australia has protection obligations under the Refugees Convention.

10. Australia is a party to the Refugees Convention and generally speaking, has protection obligations in respect of people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:

    owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

11. The High Court has considered this definition in a number of cases, notably Chan Yee Kin v MIEA (1989) 169 CLR 379, Applicant A v MIEA (1997) 190 CLR 225, MIEA v Guo (1997) 191 CLR 559, Chen Shi Hai v MIMA (2000) 201 CLR 293, MIMA v Haji Ibrahim (2000) 204 CLR 1, MIMA v Khawar (2002) 210 CLR 1, MIMA v Respondents S152/2003 (2004) 222 CLR 1, Applicant S v MIMA (2004) 217 CLR 387, Appellant S395/2002 v MIMA (2003) 216 CLR 473, SZATV v MIAC (2007) 233 CLR 18 and SZFDV v MIAC (2007) 233 CLR 51.

12. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the regulations to a particular person. These provisions were inserted on 1 October 2001 and apply to all protection visa applications not finalised before that date.

13. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.

14. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). The expression ‘serious harm’ includes, for example, a threat to life or liberty, significant physical harassment or ill-treatment, or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant’s capacity to subsist: s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.

15. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.

16. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.

17. Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. 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.

18. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.

19. Whether an applicant is a person to whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

    Complementary protection criterion

20. If a person is found not to meet the refugee criterion in cl.866.221(2) he or she may nevertheless meet the criteria for the grant of a protection visa if he or she is a person to 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 applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: cl.866.221(4) (‘the complementary protection criterion’).

21. ‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.

    Section 499 Ministerial Direction

22. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of policy guidelines prepared by the Department of Immigration –PAM3 Refugee and humanitarian - Complementary Protection Guidelines and PAM3 Refugee and humanitarian - Refugee Law Guidelines – and any country information assessment 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

23. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources. This includes, but is not limited to, the following.

    ·The applicant’s protection visa application of [August] 2001.

    ·Oral evidence of the applicant provided at the Tribunal hearing on 21 December 2015.

    ·Department of Immigration – PAM3 Refugee and Humanitarian – Complementary Protection Guidelines and PAM3 Refugee and Humanitarian – Refugee Law Guidelines.

24. For the reasons that follow, the Tribunal has concluded that the decision under review should be affirmed.

    The Applicant’s Claims

25. The Tribunal accepts that the applicant’s country of nationality is Tonga for the purposes of cl.866.221(2) and for the purposes of cl.866.221(4) the Tribunal accepts that Tonga is the receiving country.

    Claims Made in the 2001 Protection Visa Application

26. The applicant claims in his protection visa application that under the Tongan Constitution, the King has exclusive power to appoint ministers and it is not by the people. He claims he believes this to be politically wrong. He claims he may end in jail for publicly questioning the political system in Tonga and referred to a MP, Akilisi Pohiva who a few years before was imprisoned for criticising the political system in Tonga. He claims the police or Minister of Police will place him in jail if he makes any public comment about the political system in Tonga.

27. At the hearing before me the applicant indicated he did not remember why he claimed to fear return in his 2001 application and confirmed he no longer fears return for the reasons he claimed in his 2001 application. Further independent information indicates that there are now free and fair parliamentary elections in Tonga, and the Constitution provides for freedom of speech and the government generally respected these rights.[1] It follows the Tribunal does not accept the applicant will be placed in jail or face any of the difficulties he claims for the reasons he claims.

    [1] Unites States Department of State, Tonga 2014 Human Rights Report

28. On the basis of the applicant’s evidence at the hearing before me and the independent information the Tribunal is not satisfied he faces a real chance of persecution involving serious harm at the hands of the authorities, the parliament, the police, the Police Minister, the King or anyone else were he to return to Tonga in the reasonably foreseeable future because of his claim he is opposed to the political system where the King has exclusive power to appoint ministers and as he will criticise, comment and publicly question it on his return. Accordingly, the Tribunal cannot be satisfied on the evidence before it that the applicant has a well-founded fear of persecution for this reason.

29. On the basis of the applicant’s own evidence and the independent information I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Tonga, there is a real risk that he will suffer significant harm on the basis he is opposed to the political system where the King has exclusive power to appoint ministers and he will criticise, comment and publicly question it on his return.

    Claims Made at the Hearing held on 21 December 2015

30. At the hearing before me when asked why he fears return the applicant responded that he did not believe he would have the life in Tonga that he would in Australia. He also said he left Tonga in 1997 and had not returned and since then his wife is with someone else which he does not like. He said he fears he might do something to her, and when asked if he fears harm personally he said he thinks something might happen at the hands of the person who is now with his wife. When asked why he believed that he said because he had thought about it. When the Tribunal raised with him that his evidence appeared vague and that it seemed to appear not to reach the level of a real chance of serious harm or a real risk of significant harm; he responded that he thinks something might happen and he does not feel good about it. When asked why he does not feel good about it; he said it is intuition. He said he had never faced harm or threats or difficulties from his wife or her partner in the past. He said he continues to have contact with his wife about the children. When the concerns with his claims were raised with regards to the credibility of his evidence and whether his claims meet a real chance of serious harm or real risk of significant harm; he said the closer he gets to him he might act on it. When specifically asked what harm he fears; he said it would ruin his life and influence his health the closer he gets to his wife. When asked if he had anything further to add or any other reasons to fear return; he said no.

31. 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.  It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts.  A decision‑maker is not required to make the applicant's case for him or her.  Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169‑70.)

32. The Tribunal has significant problems with the applicant’s claims as to fearing return because his wife is now living with another man. The evidence presented by the applicant to the Tribunal was not sufficiently detailed to enable the Tribunal to be satisfied he will face a real chance of serious and/or a real risk of significant harm on his return to Tonga. The evidence indicates he has not faced any threats or difficulties in the past from his wife or her partner despite continuing to have contact with his wife. His evidence as to why he will be harmed is based on his intuition and belief, and his feeling he might act upon the situation of his wife living with another man as he does not feel good about it. Despite the Tribunal asking him questions and trying to elicit further detail as to any past difficulties or harm he may directly face form either his wife or his partner or anyone else, the Tribunal found his evidence to be vague, lacking in detail and speculative.

33. On the basis of the evidence before it the Tribunal therefore cannot be satisfied that the applicant will face the difficulties he claims, including a deterioration of his health or ruining his life or serious or significant harm, at the hands of his wife or her current partner or anyone else for the reasons he claims, including as he does not like the situation of them living tougher and may act upon it and do something to him or her. 

34. On the evidence before it, the Tribunal cannot be satisfied that the applicant faces a real chance of persecution involving serious harm in Tonga for a Convention reason now or in the reasonably foreseeable future at the hands of his wife or her partner or anyone else with regard to his claim that his wife is with another man and he may act upon this and do something to him or her. Accordingly, the Tribunal cannot be satisfied on the evidence before it that the applicant has a well-founded fear of persecution for this reason.

35. For the same reasons, on the evidence before it, the Tribunal cannot be satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Tonga there is a real risk that he will suffer significant harm for the purposes of cl.866.221(4)  (‘the complementary protection criterion’) at the hands of his wife or her partner or anyone else with regard to his claim that his wife is with another man, he may act upon this and do something to him or her.

36. The applicant also claimed that did not believe he would have the life in Tonga that he would in Australia. No further evidence was provided in this regard and the Tribunal finds the claim to be lacking in detail for it to be satisfied on the evidence before it for it to be satisfied that the difficulties he will face are analogous or similar to any of the examples of serious harm outlined in s.91R(2) of the Migration Act or meets the definition of significant harm outlined in s.36(2A) and s.5(1) of the Migration Act.

37. Therefore on the evidence before it, the Tribunal cannot be satisfied that the applicant faces a real chance of persecution involving serious harm in Tonga for a Convention reason now or in the reasonably foreseeable future because he would not have the life in Tonga he has in Australia. Accordingly, the Tribunal cannot be satisfied on the evidence before it that the applicant has a well-founded fear of persecution for this reason.

1. For the same reasons, on the evidence before it, the Tribunal cannot be satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Tonga there is a real risk that he will suffer significant harm for the purposes of cl.866.221(4) (‘the complementary protection criterion’) because he would not have the life in Tonga he has in Australia.

   CONCLUSIONS

2. The Tribunal has considered whether the combination of each of the individual claims raised by the applicant would together create a real chance of him being subjected to serious harm in Tonga in the reasonably foreseeable future.  Having carefully considered the cumulative effect of these factors and attributes in light of the information and evidence before it, and given its reasons in relation to each factor, the Tribunal does not accept that there is a real chance the applicant would face serious harm for these reasons if he returns in the reasonably foreseeable future.  The Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in cl.866.221(2).

3. Having concluded that the applicant does not meet the refugee criterion in cl.866.221(2), the Tribunal has considered the alternative criterion in cl.866.221(4). The Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under cl.866.221(4).

4. There is no suggestion that the applicant satisfies cl.866.221 on the basis of being a member of the same family unit as a person who satisfies cl.866.221(2) or (4) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in cl.866.221 for a protection visa.

   DECISION

5. The Tribunal affirms the decision not to grant the applicant a Protection visa.

   Gabrielle Cullen
   Member