1420027 (Refugee)

[2016] AATA 3662

1420027 (Refugee) [2016] AATA 3662 (6 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1420027

COUNTRY OF REFERENCE:                  Tonga

MEMBER:Rachel Homan

DATE:6 April 2016

PLACE OF DECISION:  Sydney

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

Statement made on 06 April 2016 at 2:45pm

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 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, who the Tribunal accepts is a citizen of Tonga, applied for the visa [in] July 2014 and the delegate refused to grant the visa [in] November 2014.

3. The issues in this review are whether the applicant has a well-founded fear of persecution in Tonga for one or more of the five reasons set out in the Refugees Convention; and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Tonga, there is a real risk the applicant will suffer significant harm.

4. For the reasons that follow, the Tribunal has determined that the decision under review should be affirmed.  

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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.

6. 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).

7. 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.

8. 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’).

9. 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.

   Visa application

10. According to information provided in her visa application forms, the applicant is [an age]-year-old Tongan national born [at a specified location], Tonga. The applicant stated that she could speak, read and write Tongan and English and followed the Christian religion. The applicant stated that she had been in a de facto relationship since [October] 2011. The applicant claimed to have completed [number] years of education in Tonga and [Country 1] and described her occupation or profession before coming to Australia as [occupation]. The applicant provided details of [her children] residing in Tonga as well as [other children] residing in Australia. The visa applicant stated that she had a [sibling] residing in [Country 1].

11. The applicant arrived in Australia [in] July 2011 as the holder of a [temporary] visa. The applicant declared that prior to her journey to Australia she had spent time in [Country 1] in 2004, 2007 and 2010 and had visited Australia for a period of [several] days in 2009.

12. The applicant stated that she left Tonga because she did not feel safe or physically secure whilst living there. The applicant stated that her former partner had physically hurt her in Tonga and abused her regularly during their relationship. The applicant expressed a fear that she would continue to be harmed by her former partner if she returned to Tonga. The applicant stated that she had complained to the police a few times about the abuse but they did not do anything to stop him.

13. Submitted with the visa application was a certified copy of the identity page of the applicant’s Tongan passport.

14. Shortly after applying for a protection visa, the applicant submitted an application for a bridging visa with work rights. In connection with that application, the applicant submitted a letter dated 6 August 2014 in which she stated that she had not applied for a protection visa’s as soon as she arrived in Australia because she felt embarrassed about being abused and harassed constantly by her former partner in Tonga. The applicant stated that she was promised by her fiancé in [another state] that he would help her apply for a partner visa, however, she had discovered that he had legal matters involving his former partner and had decided to leave him in [the other state].

15. The applicant attended an interview with an officer of the Department of Immigration [in] October 2014 and the Tribunal has listened to a recording of that interview. The applicant gave evidence that she commenced a relationship with her former partner, [Mr A], in 2009. In 2010, the applicant went to [Country 1] for study. When the applicant returned in January 2011, [Mr A] continued to threaten and abuse the applicant. The applicant stated that she had had no contact with [Mr A] since she left Tonga for Australia in July 2011.

16. The applicant was asked why she did not seek protection whilst in [Country 1]. The applicant indicated that her focus at that time had been on her studies.

17. The applicant gave evidence that she lived most of the time in Tonga in her [relative’s] [house]. The applicant gave evidence that in addition to [a number] of her children, her mother [and siblings] continued reside in Tonga.

18. The applicant gave evidence that her former partner started to become abusive soon after the relationship commenced. The couple would often fight about money and [Mr A] subjected the applicant to verbal, physical and sexual abuse. The applicant stated that she had gone to the police on two occasions. The police said they would come and talk to the applicant’s partner, which they did, but nothing changed.

    Review application

19. At the time she applied for review, the applicant submitted to the Tribunal a copy of the delegate’s decision record. No further evidence was provided to the Tribunal prior to the hearing.

20. At the Tribunal hearing, the applicant confirmed that she was a citizen of Tonga and did not hold a visa for any country other than Australia. The applicant told the Tribunal that she had entered into a new relationship with an Australian man of [ethnic group] descent and had been living with her new partner for approximately one year. The applicant told the Tribunal that she had two [children] living in Tonga at present, [one] living with her mother and [another] living and working [alone]. [Another child] is now residing in Australia. The applicant told the Tribunal that her mother [and siblings] also continue to reside in [Tonga]. [One sibling] continues to reside in [Country 1].

21. The applicant stated that she had applied for a protection visa because of ‘torture’ she experienced at the hands of her former partner. The applicant told the Tribunal that she met her former partner, [Mr A], in his [workplace] in 2009 and they began living together around Christmas 2009, at her home, together with [her] children. About two months into the relationship, the applicant began to recognise [Mr A’s] treatment of her as abusive. The applicant told the Tribunal that she was working and had a little money and [Mr A] would constantly lie to her and ask for money. The applicant told the Tribunal that [Mr A] was physically, verbally and sexually abusive towards her.

22. In February 2010, the applicant went to [Country 1] to study and remained there until January 2011. The applicant’s children remained at home in Tonga and were looked after by the applicant’s [sibling]. [Mr A] continued to stay at the applicant’s home but came and went. When the applicant returned to Tonga in January 2011, she resumed living with [Mr A] but the abuse continued. The applicant stated that [Mr A] had threatened her life, punched her, pulled her hair and forced her to do things she did not want to do. The applicant felt that his threats were real and was worried for her own safety and that of her children and other family members.

23. The applicant told the Tribunal that she was a private person and felt unable to say anything to anyone about the problems in her relationship. Only her [children] knew what was happening. The applicant told the Tribunal that she had gone to the police on two occasions and they had told the applicant that they would talk to [Mr A] but they did not do anything.

24. The applicant told the Tribunal that when she left Tonga in July 2011, she had not initially planned to remain in Australia but felt safe and secure once she arrived. The applicant stated that she never told [Mr A] that she was planning to remain in Australia and he thought she was planning to return as she had a new job posting awaiting her. The applicant told the Tribunal that she had not had any contact with [Mr A] since she left Tonga in July 2011. [Mr A] continued to come and go from her home and had contact with her [children] until around December 2011. [None of] the applicant’s [children] nor any other member of the applicant’s family had had any contact with [Mr A] since December 2011, although they had occasionally seen him driving [around].

25. The Tribunal put to the applicant that the evidence before it suggested that neither the applicant nor any member of her family had had any contact with [Mr A] for over four years and the applicant was now in a new relationship. In those circumstances, it seemed unlikely that the applicant would resume a relationship with [Mr A] were she to return to Tonga and the Tribunal was having difficulty accepting that there would be a real chance or risk of the applicant being harmed by [Mr A] were she to return now or in the reasonably foreseeable future. The applicant responded that she was worried by stories of other women in Tonga being abused by their partners. The applicant stated that she felt that [Mr A] would try to find her and she feared for her life. The applicant stated that he had tried to find out where she was and had asked about her but agreed that he had not done this since December 2011.

26. The Tribunal asked the applicant why she felt that [Mr A] would look for her if she returned to Tonga, if he had not made any enquiries about her since December 2011. The applicant told the Tribunal that she felt in her heart that he would look for her because he will think that she has lots of money and would want her money.

27. The Tribunal noted that the applicant had a new partner and other male relatives residing in Tonga, including [specified relatives] and asked the applicant whether she would feel safe living with them. The applicant responded that she felt they would not be able to keep her safe as in her family they do not fight others.

28. The Tribunal discussed with the applicant the country information set out below and indicated that the Tribunal could infer from the information that, since 2013, the Tongan government had introduced laws and policies aimed at preventing domestic violence and protecting victims. The information also suggested that a range of resources were available to victims of domestic violence from non-governmental organisations. The Tribunal put to the applicant that the country information suggested that there may not be a real chance or risk of the applicant suffering serious or significant harm; and that the Tongan government was willing and able to provide adequate and effective protection to the applicant. The applicant responded that [Mr A] are may know where the applicant is staying and what her movements were. If he tried to harm her, the police would be unable to assist her in the moment or in that situation. The applicant said she could call the police but they would only come later. The applicant indicated that she felt afraid after hearing about other incidents of domestic violence in Tonga.

29. The Tribunal put to the applicant that it also had to consider whether the applicant could reasonably and safely live in another part of Tonga. The applicant told the Tribunal that [Mr A] would know if she returned to Tonga because it is such a small place. Even if she were to go and live on one of the small islands, she felt [Mr A] would search for her.

30. The applicant told the Tribunal that there was no other basis on which he feared returning to Tonga.

    Country information

31. According to a 2015 Freedom House report, domestic violence is common in Tonga. However, the Family Protection Act of 2013 authorizes the police to grant on-the-spot protection orders for up to seven days, and provides counsellors to assist victims of domestic violence in court cases. A Women and Children's Crisis Center opened in 2013 to provide counselling, medical care, and police assistance to victims of violence.[1]

    [1] "Freedom in the World 2015 - Tonga", Freedom House, , NG5A1E6BC534

32. The US Department of State reported in 2014 that rape is punishable by up to 15 years in prison. The law also recognizes spousal rape. The incidence of rape appeared to be infrequent, although there were no reliable statistics. It was reported that police investigate reported rape cases, which are then prosecuted under the law. As of May 2014, police reported six rape cases. Non-governmental organizations (NGOs) often report a higher incidence of rape than police reports. As of June 2014, the Women and Children Crisis Center reported eight rape cases.

33. The Family Protection Act makes domestic violence a crime punishable by up to 12 months in prison, a fine of 2,000 pa’anga ($1,171), or both. Repeat offenders face up to three years in prison or a maximum fine of 10,000 pa’anga ($5,853). The Act provides for protection from domestic violence, introduces protection orders, clarifies the duties of police, and promotes the health, safety, and well-being of domestic violence victims. Police had issued protection orders under the Act.

34. The police domestic violence unit has a “no-drop” policy in complaints of domestic assault - once filed, domestic violence cases cannot be dropped and proceed to prosecution in the magistrates’ courts. Following reports of abuse, the unit’s officers counselled victims. A male officer also counselled perpetrators. Police worked with the National Center for Women and Children as well as the Women and Children Crisis Center to provide shelter for abused women, and girls and boys under age 14. Both centres had a safe house for victims. The Free Wesleyan Church operated a hotline for women in trouble, and the Salvation Army provided counselling and rehabilitation programs.

35. In 2013, the police domestic violence unit, together with various NGOs, including the National Center for Women and Children, the Women and Children Crisis Center, and the Salvation Army, conducted public awareness and prevention campaigns against domestic violence. Statistics compiled by the Women and Children Crisis Center indicated that 103 persons, including 64 women, seven men, and 32 children, received assistance from the centre during the year.[2]

    [2] "Human Rights Report 2014 Tonga", US Department of State, 25 June 2015, OG2B06FAF182

    Findings

36. The Tribunal accepts that the applicant has provided truthful evidence to the Department and the Tribunal in relation to her past experiences in Tonga. The Tribunal accepts that the applicant was previously in an abusive relationship and, at the time of her departure from Tonga, held genuine fears for her own safety or well-being and that of her family. The Tribunal further accepts that the applicant continues to have genuine concerns for her safety or well-being were she to return to Tonga now, or in the reasonably foreseeable future. The Tribunal is not satisfied, however, that there remains a real chance or risk of the applicant suffering serious or significant harm.

37. The applicant has provided evidence to the Tribunal indicating that neither she nor any member of her family has had contact with [Mr A] for over four years. The applicant told the Tribunal that she is in a new relationship and has lived with her current partner for over a year. In the circumstances, the Tribunal is not satisfied that there is a real chance or risk that the applicant would resume any form of relationship with [Mr A] were she to return to Tonga now or in the immediately foreseeable future. Nor is the Tribunal satisfied that there is a real chance or risk that [Mr A] would seek the applicant out or attempt to harm her outside a relationship.

38. Although it appears that [Mr A] continued to make enquiries about the applicant until December 2011, this occurred in the context of the applicant’s departure from Tonga and failure to return home without having informed [Mr A] of her intentions. The applicant’s evidence did not suggest that [Mr A] had made any threats to the applicant following her departure nor did the evidence indicate that he had shown any continuing interest in her or her family.

39. The applicant speculated that were she to return to Tonga, this information would reach [Mr A] and he may attempt to approach her because he would assume that she has lots of money after having spent a period of time living in Australia. Even if this were the case, the Tribunal is not satisfied on the evidence before it that there is a real chance or risk of the applicant resuming a relationship with [Mr A]. Nor is the Tribunal satisfied that this would lead to a real chance or risk of [Mr A] seriously or significantly harming the applicant, given the relatively brief duration of their prior relationship, the passage of time since the relationship ceased, and given that the applicant has the protection of male relatives and the Tongan authorities. In this regard, the Tribunal notes that the applicant has claimed to have received unsatisfactory responses to her two previous complaints to the Tongan police. The Tribunal accepts on the basis of the reports cited above, however, that the Tongan authorities have, since 2013, introduced new laws and policies aimed at preventing or reducing the prevalence of domestic violence in Tongan society. The country information indicates that the authorities are, at the present time, willing and able to provide appropriate protection to victims of assault, including in the domestic context.

1. For the reasons given above, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution in Tonga. As a consequence, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).

2. For the same reasons, the Tribunal is not satisfied that there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

3. 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

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

   Rachel Homan
   Member