1419423 (Refugee)

[2016] AATA 3290

1419423 (Refugee) [2016] AATA 3290 (5 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1419423

COUNTRY OF REFERENCE:                  Tonga

MEMBER:Tania Flood

DATE:5 February 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 05 February 2016 at 4:06pm

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 applicants Protection visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants’, who claim to be citizens of Tonga, applied for the visas [in] July 2014 and the delegate refused to grant the visas [in] October 2014.

3. The applicants were invited to attend a hearing before the Tribunal on 17 February 2016.  On 28 January 2016 the first named applicant (hereafter referred to as “the applicant”) emailed the Tribunal advising that he would not be attending the hearing and requesting a decision based on the information already provided.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, the applicant 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.

5. 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 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).

6. 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.

7. 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 a protection 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 the applicant 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’).

8. 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.

9. The issue in this case is whether there is a real chance the applicant will face serious harm on return to Tonga for reason of his political opinion and alternatively whether there are substantial grounds for believing that he will suffer significant harm if removed from Australia to Tonga. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Summary of claims

10. In his application for a protection visa the applicant claims:

11. He almost lost his life in Tonga due to being bashed and tortured by a gang who wanted to kill him.

12. He has been intimidated, threatened and physically harmed due to his involvement with 'Akilisi Pohiva and the Friendly Islands Democratic Party of Tonga. 

13. He has been an active member of the democratic movement in Tonga with ‘Akilisi Pohiva.  For this reason alone, many people in Tonga, especially the authorities, do not like him and want to see him die.

14. He is a target to be tortured by those who take side with the non-democratic parties, such as the nobles and royal family, and those who want to delete and quieten down the democratic movement.

15. If he returns to Tonga he will be physically hurt and possibly tortured by the enemies of the democratic movement in Tonga.

16. Because he is educated, he can attract more people to follow the democratic movement.

17. He has been threatened while in Australia.

18. He does not think the authorities of Tonga can or will protect him if he returns to Tonga.  They are unreliable and need more training.

19. At a hearing with the Delegate, the applicant added the following claims:

20. He is a Minister of religion in [a] Church in Tonga.  He is a passionate pro-democracy supporter and as part of his Christian vocation he preaches morality and human rights as expressed in the bible.  He has also expressed the right of democracy for the people of Tonga in sermons. 

21. He started supporting the democracy movement in Tonga in 1988.  In 1996 he was assaulted twice, once by a group and once by his [relative] who hit him over the head because of his political opinion.

22. He witnessed the 2006 uprising in Tonga in which people were hurt and killed.  He fears that this will happen again in the future.  He claims he still suffers flashbacks to this event.

23. He has experienced indirect threats over the years because of his support for the democracy movement.

24. He has written an email and has spoken to [a named official] of [an organisation] supporting the 2014 PSA strike for better wage conditions in Tonga.

25. His [relative] is in the Tongan military and supports the Monarchy system of government.  He has harmed him in the past and the applicant fears he will harm him on return to Tonga because he holds opposing political views.

26. He has been treated unfairly by the hierarchy of his church in Tonga.  He fears he may lose his Ministry within the Church because he has opposing political views to those of the hierarchy of the church.  [Details of church deleted].

27. He fears harm from members of the community in Tonga who may have opposing political views.

    Delegates Decision

28. The Delegate found that the applicant is a credible witness and that he holds genuine pro-democracy political views.  The Delegate found that he had been physically harmed on two occasions in the past and that he will voice his pro-democracy views through his vocation and in the community if he returns to Tonga.  However, the Delegate did not accept that the applicant will be unable to voice his political opinion or that he would be harmed for doing so if he returns to Tonga.  Further, the Delegate did not accept the applicant cannot access the protection of the Tongan authorities if he returns to Tonga.

    Findings and reasoning

    Nationality

    The Tribunal finds that the applicants are nationals of Tonga based on copies of their Tongan passports which were provided to the Department.  The applicants have made no claims to be nationals of any other country.  The Tribunal accepts that their claims should be assessed against Tonga for the purposes of the Convention in s36(2)(a) of the Act and as the “receiving country” for the purposes of the complementary protection obligations in s36(2)(aa) of the Act.  In the absence of any information to the contrary the Tribunal is satisfied that the applicants do not have a right to enter and reside in any other country, and therefore they are not excluded from Australia’s protection obligations under s36(3) of the Act.

    Political opinion

29. As the applicant did not attend the hearing the Tribunal was unable to question him in relation to his political views and involvement in political activities in Tonga.  However, the Tribunal has before it the full record of the Delegates decision and on that basis is prepared to accept that the applicant holds genuine pro-democracy views; that he was physically harmed on two occasions in the past for voicing his political opinion in Tonga and that he will continue to voice his pro-democracy political opinion if he returns to Tonga.

    Future harm for political opinion

30. The applicant claims to fear harm from members of the community and his [relative] who have opposing political views.  In addition, he claims to fear harm from the Tongan authorities for this reason.

31. The US Department of State, Tonga 2014, Human Rights Report states:

    The Kingdom of Tonga is a constitutional monarchy. 

    Nobles and cabinet members associated with the royal family historically dominated parliament and the government.  Over the last several decades, the number of seats held by elected members has increased and is now higher than the seats reserved for hereditary nobles.  For the first time, in 2010 the Prime Minister was elected by members of parliament instead of being selected by the King.  Since 2005 three reform-oriented political parties were registered.  The most powerful party was the Democratic Party of the Friendly Isles.  These parties continued to work towards a political system in which an increasing number of members of parliament are elected by the people, in relation to the number of seats reserved for the nobility.

    The parliamentary elections in November 2014 were deemed generally free and fair and in December parliament elected Samiuela ‘Akilisi Pohiva, as Prime Minister.

    The constitution provides for freedom of speech and press, and in contrast with previous years, the government generally respected these rights.  An independent press, the judiciary and a functioning democratic political system combined to promote freedom of speech and press.

    The constitution provides for the freedoms of assembly and association, and the government generally respected these rights.

32. Freedom House’s Freedom in the World 2009 – Tonga report states:

    Growing public demand for political reform pushed the king in 2005 to approve the formation of a constitutional review committee chaired by Prince Tu’ipelehake. 

    In October 2006 the National Committee for Political Reform submitted its report to the government recommending a parliament with 17 members elected by the people and 9 by the 33 nobles and a Prime Minister and cabinet chosen from among the lawmakers.  The government offered a counter proposal under which the King would retain the power to appoint the Prime Minister and cabinet and include individuals from outside the legislature.  Pro-democracy activists rejected the counter proposal and launched a protest on November 17 that quickly escalated into a riot that left several people dead, hundreds injured and 80 per cent of the capital’s business district in ruins.

    In the April 2008 legislative elections, the Human Rights and Democracy Movement won 4 seats, the People’s Democratic Party captured 2 seats, and independents took the remaining 3 popularly elected seats.  Voter turnout was 48 per cent and there were no reports of serious fraud or irregularities.

    The new parliament passed legislation in July 2008 to establish a five member Constitution and Electoral Commission to determine necessary reforms for the 2010 legislative elections, including the role of the monarch, the privy council and the composition and selection of the legislature. Also, the King ceded power on all day-to-day affairs to the Prime Minister and will receive guidance from the Prime Minister on major decisions.

33. Freedom House’s Freedom in the World 2014 – Tonga report, noted that Tonga’s political rights rating improved from 3 to 2 (1 rating the best in the world) due to the orderly implementation of constitutional procedures in response to the prime minister’s incapacitation by illness, and the opposition’s increasing ability to hold politically dominant nobles accountable to the electorate.

34. Freedom House’s Freedom in the World 2015 – Tonga report, states:

    Tonga is an electoral democracy.  The unicameral Legislative Assembly has 26 members, including 17 popularly elected “people’s representatives” and 9 nobles elected by their peers.   

    General elections in November 2014 were conducted peacefully and declared to be free and fair by observers, with more than 40,000 citizens participating.  The Democratic Party of the Friendly Islands won nine seats in the legislature with independents taking the remainder.  ‘Akilisi Pohiva, leader of the Democratic Party of the Friendly Islands and a long time democracy advocate, was elected Prime Minister in December. 

    The Constitution guarantees freedom of the press. Criticisms of the government appear regularly in newspapers, including those wholly or partly owned by the state, but the government and individual leaders have a history of suppressing the media.

    Freedom of assembly and association are upheld.  Workers have the right to join unions, but regulations for union formation were never established.

35. The country information outlined above indicates that Tonga has undergone political reforms which have resulted in two rounds of free and fair elections in 2010 and 2014.  Further, ‘Akilisi Pohiva, leader of the Democratic Party of the Friendly Islands and a long time democracy advocate, is now the elected Prime Minister of Tonga.  Also, the country information indicates that freedom of speech is generally upheld in Tonga.  While it is clear that political unrest in 2006 resulted in several deaths and injuries the current political climate has changed significantly since then and the Tribunal considers the applicant does not face a real chance or real risk of serious or significant harm from the Tongan authorities for holding and voicing his pro-democracy political views if he returns to Tonga.

36. In the event that the applicant returned to Tonga and continued to express his political views and became embroiled in a political argument and was threatened with serious or significant harm by members of the community opposed to his political views or by his [relative] who is a member of the military, the Tribunal has considered whether he could access State Protection in Tonga.  In this respect, the Tribunal has had regard to the following independent country information:

37. The US Department of State’s Tonga 2014 Human Rights Report, provides that the national police force, under the minister of police and prisons, maintains internal security. In emergency situations His Majesty’s Armed Forces (HMAF) also shares domestic security duties with the police.  Civilian authorities maintained control over the HMAF and police, and the government has effective mechanisms to investigate and punish security force abuse and corruption.  No reports of impunity involving the security forces were reported during the year.  Complaints against police are referred to the Police Employment Committee, which determines the severity of the complaint and refers it to the police board.  The committee may take disciplinary action against police officers but refers serious breaches to the board.  The board has the power to determine the action to be taken in response to a serious breach of discipline, including dismissal from the force.  Entry-level police training included training on corruption, ethics, transparency and human rights.

38. A December 2010 report from ABC News stated that the Tongan government had launched a reform program for police following the November 2006 riots.  Chris Kelley, a New Zealander, was appointed Commander of the Tonga police in 2008.  Commander Kelly told ABC News that “the main reforms have been in the police development program”.  He stated that the reforms in this program had been about things like ethics and integrity, about technical capability and public order response, about transparency and being open with the public, about integrity. 

39. There is also information available which indicates that Tonga has an independent and functioning judiciary.[1]

    [1] US Department of State, Tonga 2014 Human Rights Report, 25 June 2015; Freedom House, Freedom in the World 2015 – Tonga, 24 August 2015

40. The Tribunal has also had regard to the Delegate’s decision (para 3, p19) which indicates that the applicant advised he is friends with several police officers whom he knows well having attended school with them. 

41. In view of the above information, the Tribunal is satisfied the applicant would be able to access State Protection in Tonga in the event he is threatened with harm from non-state actors.  He has internal police contacts and reportedly there is a functioning police force and mechanisms in place to punish security force abuse and corruption. 

    Loss of Church Ministry, claimed support for PSA strike in 2014 and claimed flashbacks to 2006 riots

42. According to the Delegate’s decision the applicant’s Church posted him to outlying communities between 2003 and 2006 because of his outspoken views and this affected him spiritually, physically and morally.  Further he claimed that [other] Ministers from the church were dismissed in 2013 and another resigned.  The applicant fears he will also be dismissed from his position if he returns to Tonga, particularly given his sphere of influence as a Minister and a person well educated in Australia.

43. The applicant also claims that he has written an email and has spoken to [the named official] of [an organisation] supporting the 2014 PSA strike for better wage conditions in Tonga.   Further, the applicant claims that he suffers from flashbacks to the 2006 riots.

44. The Tribunal considers these claims and the information provided to date to be lacking in detail in significant respects.  No detailed information is available to the Tribunal regarding the claims made in relation to his Ministry during the period from 2003-2006 or to support that he was spiritually, physically or morally affected by this.  Also no independent information is provided to support the claims that other Ministers have been dismissed by the church or forced to resign for their political opinions or for any other reason.  In any event, the Tribunal considers his claimed future dismissal on return to Tonga is at this stage speculative, and out of context with the current political climate.

45. The Tribunal has had regard to information provided by the applicant about the possibility of the PSA strike being called off due to the likelihood of military intervention but on the evidence available it is not clear how, why or by whom the applicant would be harmed on return to Tonga for emailing his support for the strike. 

46. Similarly, the applicant has provided no detailed information regarding his claim to suffer flashbacks to the 2006 riots or any independent medical information to support his claim or which indicates he is suffering from or undergoing medical treatment for this reason.

47. If the applicant had attended the hearing, the Tribunal would have had the opportunity to discuss these claims with the applicant in more detail.  The Tribunal would have sought further information in relation to these matters.  The Tribunal would have used the opportunity of the hearing to discuss these issues with the applicant and given him the opportunity to explain the particular details of what he fears would happen if he returns to Tonga now or in the reasonably foreseeable future and the reasons why it would happen.  However, it was not possible to discuss any of these issues with him because he declined to attend the hearing which was scheduled for 17 February 2016 despite being advised by the Tribunal that it had considered all the material before it but was unable to make a favourable decision on that information alone.   On the evidence before it, the Tribunal is not prepared to accept that the applicant faces a real chance or risk or being seriously or significantly harmed for the above reasons.

1. Having considered the applicant’s claims individually and cumulatively, the Tribunal does not accept there is a real chance the applicant will suffer serious harm if he returns to Tonga, now or in the foreseeable future, for any of the reasons he has claimed.  The Tribunal finds the applicant does not have a well-founded fear of persecution.  Therefore the applicant does not satisfy the criterion set out in s.36(2)(a) of the Act.

2. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a) of the Act, the Tribunal has considered the alternative complementary protection criterion in s.36(2)(aa) of the Act.    For the same reasons already articulated, the Tribunal is not 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 he will be significantly harmed for the reasons claimed or any other reason.  The Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa) of the Act.

3. There is no suggestion that the applicant satisfies s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa)  of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2) of the Act.

4. Accordingly, the applicant’s wife and children, whose claims are made on the basis of them being members of the same family unit as the applicant, are also not owed protection.

   DECISION

5. The Tribunal affirms the decision not to grant the applicants Protection visas.

   Tania Flood
   Member