1420949 (Refugee)

[2016] AATA 3779

1420949 (Refugee) [2016] AATA 3779 (18 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1420949

COUNTRY OF REFERENCE:                  Tonga

MEMBER:Tania Flood

DATE:18 March 2016

PLACE OF DECISION:  Sydney

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

Statement made on 18 March 2016 at 9:20am

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 claims to be a citizen of Tonga, applied for the visa [in] September 2013 and the delegate refused to grant the visa [in] December 2014.

3. The applicant appeared before the Tribunal on 9 March 2016 to give evidence and present arguments.

   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.

   SZGIZ V MIAC

9. In SZGIZ v MIAC, the Full Federal Court held that the operation of the statutory bar in s.48A was confined to a further application which duplicated the same essential criterion for the grant of the visa as in the earlier unsuccessful application.  That is, it did not prevent a non-citizen who had made a valid application on the basis of the refugee criterion in s.36(2)(a) of the Act from making a further application on the basis of the complementary protection criterion in s.36(2)(aa) of the Act or the family membership criteria in s.36(2)(b) or (c) of the Act while he or she remained in the migration zone.  Therefore, the Tribunal will determine the application on the basis of s.36(2)(aa) criterion.

10. The issue in this case is whether there are substantial grounds for believing there is real risk the applicant 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

11. In an application for a Protection visa made [in] December 2011, the applicant claimed the following:

12. His family left Tonga when he was [a young child].  He has no memories of his time there and does not see it as his country.  He has never been back to Tonga and does not know or understand the country at all.  His parents left to give their children a better future in Australia.  He loves Australia and sees it as his country.

13. He has no way to survive in Tonga, no close family or friends there and no connection with the country.  He has no way of earning money, finding a place to live or starting a life.  It will be next to impossible for him to survive in Tonga.  He does not know how things are done there, how to get a job, how to bank or how to get accommodation.  He would be like an alien.

14. No-one would have any reason to help him or to look after him.  He would be completely isolated and alone.  People would look down on him because of his past and because he was kicked out of Australia.  He would be seen as an easy target.

15. Outsiders have a hard time.  Someone with his past would become a target.  Even though he has reformed himself people would not want to help him and instead would make his life impossible.  In the Islands people are always trying to prove themselves.  He cannot go back there.

16. He is Australian, and the Tongan authorities look down on people who left and then return.  The authorities are not known for helping people who have nothing.  Other than fulfilling their legal requirements they would not go out of their way to protect an outsider like him.

17. [In] September 2013 the applicant made a further application for a Protection visa claiming the following:

18. He left Tonga when he was [a young child].  In [year] his mother took him and his [sibling] brother to [Country 1] to get away from their violent, abusive, alcoholic father.  His father verbally and physically abused his mother and if he or his [sibling] cried or asked him to stop he turned his attention on them.  They were also verbally and physically abused.

19. His family did not intervene to help and eventually his mother took them to [Country 1] and then to Australia.

20. If he returns to Tonga he fears reprisal attacks from his father’s side of the family because they are a violent group of people who hate them because they left Tonga and have told people about their father’s violence and how his extended family did nothing to help them when they needed it.  They have called them cowards for not intervening in the situation and as a result they have brought great shame upon them.  In Tongan culture the punishment for bring great shame upon a family is a violent beating which often ends in death.

21. He is also considered to have brought great shame on the family of his wife who was promised in marriage to another male.  His wife did not want to marry that person and has since married him.  Her family is shamed by this and want vengeance.  Violence is a regular part of Tongan life and that is how this family will react if he is forced to go back.

22. He fears harm from members of his father’s side of the family and members of the family his wife was meant to marry.

23. He has absolutely no-one on his side in Tonga to protect him, he only has enemies.  The authorities cannot and will not protect him 24 hours per day, 7 days per week.  They cannot predict when he will be attacked.  These families will wait for the opportune time to get him and then it will be too late.  The only thing the authorities will be able to do is investigate who carried out the beating. 

24. These families do not care about getting caught, they only care about vengeance and punishing those who bring shame on them.  The point for them is restoring honour to their family and it doesn’t matter to them if they get caught by the authorities.

    Findings and reasons

    Country of reference

25. The Tribunal finds that the applicant is a national of Tonga based on a copy of his Tongan passport which was produced at hearing.  The Tribunal accepts that his claims should be assessed against Tonga 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 applicant does 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.

    Claimed harm from his father and his father’s family in Tonga

26. On the information before it, the Tribunal accepts the applicant left Tonga when he was [a young child] and has never returned after his mother divorced his father because he was a violent, abusive, alcoholic. 

27. At hearing the applicant claimed he has had no contact with his father over the years and does not remember him.  He does not know where he lives in Tonga.   Further, he said that to his knowledge his father has never travelled to Australia and he has never made any effort to contact him or his [sibling] in Australia for any reason.  He has received no direct threats of harm from his father although he once met a man who claimed to know his father and he indicated that his father’s family remain angry that his mother divorced him and took the children to Australia.

28. When asked why he thinks his father or other family members will harm him if he returns to Tonga the applicant said he comes from a violent family and they consider his mother has brought shame upon their family.  When asked how he knows he will be harmed he said he just knows it based on what his mother has told him about the family.  The Tribunal pointed out that it was difficult to believe the family would be interested in harming a person they have not seen or spoken to for some [number] years particularly as they have not threatened him in anyway over all these years.  The applicant insisted that people from Tonga are narrow minded and hold grudges for a long time and because Tonga is a small island he said that everyone would immediately know when he returns.  The Tribunal pointed out that divorce is not uncommon in Tonga and questioned why this family would react so violently in the circumstances.  The applicant stated that at the time his father did not want to let his mother go.

29. The Tribunal asked the applicant whether his mother has ever returned to Tonga and he said she has returned once or twice to attend funerals.  When asked if his mother had encountered any problems from his father or his family while in Tonga he said she was approached by family members and asked what she was doing there and told she should go back to Australia.  When asked if she was harmed in anyway he said she ignored them and was not harmed.

30. The Tribunal asked the applicant why he had not indicated in his first application for a Protection visa that he feared physical harm from his father or other family members.  The applicant responded that it was only after he made his original application that he thought he should provide extra details.  Further, he said he didn’t want to raise these issues until now because he didn’t know what to say or how to explain things.  The Tribunal put it to the applicant that he had no reason to fear telling the Department about his circumstances and that not doing so earlier could lead the Tribunal to a conclude that he has fabricated these claims. 

31. Having considered the applicant’s evidence and responses at hearing the Tribunal is not satisfied there is a real risk that his father or other members of his father’s family will harm him on return to Tonga.  The applicant’s fear of harm is in the Tribunal’s view purely speculative and not based on any tangible threats toward him.  Indeed the Tribunal notes that the applicant does not even know where his father is currently living.  The Tribunal also finds it significant that the applicant’s mother, who arguably would more likely provoke anger from his father and other family members in the circumstances, has returned to Tonga on more than one occasion without being significantly harmed.  The Tribunal is not persuaded by the applicant’s reasons for never mentioning these fears to the Department beforehand.   The applicant has lived in Australia for most of his life and having reached adulthood here would be aware that systems and processes exist for the protection of claimants in such circumstances.  The Tribunal considers the applicant has fabricated or exaggerated his claims in this respect in order to strengthen his claims for protection.

32. Even if the applicant had something to fear from his father or members of his father’s family the Tribunal notes that country information indicates that Tonga has a functioning police force, judiciary and laws and processes which require the Tongan authorities to take action in relation to violence in the community.  Specifically, the Tribunal notes the following:

33. The US Department of State’s Tonga 2014 Human Rights Report[1], 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.

    [1]US Department of State, Tonga – Country Reports on Human Rights Practices, February 2013

34. There is also information available which indicates that Tonga has an independent and functioning judiciary. Freedom House reported in 2014 that Tonga’s judiciary is generally independent, though a shortage of judges has led to significant case backlogs.  Nobles increasingly faced scrutiny in society and the courts.  To increase judicial independence, the parliament has created the Judicial Services Commission to advise the king on appointments of judicial and legal officers.  Traditional village elders frequently adjudicate local disputes.  Prisons meet international standards.  In June 2014 a police constable was convicted of assault of a New Zealand national in police custody in 2012; two other officers were convicted of manslaughter in the same case.  Police reform is ongoing.  By the end of the year about 10 per cent of the force was dismissed; several officers are under investigation for misconduct and criminal activity.[2]

    [2] Freedom House, Freedom in the World 2015 – Tonga, 24 August 2015

35. A December 2010 report from ABC News[3] stated that the Tongan government had launched a reform program for police following 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. 

    [3] Hill, B, 2010, ‘Law and Order: Nuku’alofa’, ABC News, 30 December

36. When asked to comment on such information at hearing the applicant stated that the police will not act unless you pay them.  He referred to a reported incident in which a person was killed in police custody.  Further, he stated that the police cannot protect him 24 hours per day and that they will not do so because he has returned from Australia. 

37. The Tribunal pointed out that it has seen no country information to support that the authorities would not provide him with protection because he has returned from Australia, noting that people move between the two countries frequently.  Further, the Tribunal pointed out that the Tongan authorities cannot guarantee absolute safety to each and every citizen at all times.  Rather, what is required is that the state takes reasonable measures to protect its citizens.  In the Tribunal’s view, the available country information supports that the applicant could avail himself of state protection in the event he faced harm from his father or members of his father’s family in Tonga.

    Claimed harm from his wife’s family and the family she was expected to marry into in Tonga

38. The applicant has provided the Department with a copy of a Marriage Certificate and on this basis the Tribunal accepts he was married to [his wife] [in] 2013.  At hearing the applicant advised he has a [child], named [name], who was born [date].  In the absence of information to the contrary, the Tribunal accepts this is the case.

39. The applicant stated at hearing that his wife has also applied for a Protection visa and that the matter is currently before the court.  He said that she was being forced by her father to marry a [certain] person but did not want to.  He said the man she was supposed to marry abducted her but she managed to get away and escaped Tonga with the help of her [relative].

40. When asked for details of the man his wife was supposed to marry the applicant stated that he does not know his name or where he and his family live.  He said neither the man, or any of his family have ever contacted or threatened him or his wife.  When asked why he fears harm for this reason he said it is because his wife has brought shame on that family.  Again, the Tribunal suggested that in the circumstances, his feared harm appears purely speculative.  The applicant responded that it is a big issue in Tonga where everybody knows each other.

41. The Tribunal put it to the applicant that the Delegates decision in his matter indicates that in her proceedings his wife was also unable to name the person she was supposed to marry which could cast doubt upon the validity of her and subsequently his, claims.  The applicant responded that his wife is trying to erase the man from her memory because she feared she would be raped by him.

42. When asked about his relationship with his wife’s family the applicant stated that he has talked briefly with them on the phone.  He said such conversations were restricted to “hello” and “goodbye” and that his wife’s father doesn’t want to talk to him on the phone.   He confirmed that his wife’s family are aware of their marriage and the birth of their [child].  He said his wife speaks to them occasionally with the last time being approximately three or four months ago.  He confirmed that his wife’s family have never threatened to harm him or his wife. 

43. Having considered the applicant’s evidence and responses at hearing the Tribunal is not satisfied there is a real risk that his wife’s family or the family of a [certain] man she was promised to marry will harm him or his wife and [child] on return to Tonga.  The applicant has provided no evidence of any threats made to them by either his wife’s family or the family of the man she was intended to marry.  Further, he and his wife’s inability to provide any details about the identity of the man in question make it difficult to substantiate the claims with any certainty.  The Tribunal considers the applicant’s fears in this respect are at best speculative and as such the Tribunal is not satisfied there is a real risk he, his wife or child will suffer any significant harm on return to Tonga for this reason.

1. In any event, as noted above, the Tribunal is of the view, that independent country information supports that the applicant could avail himself of state protection in the event he or his family faced harm from his wife’s family or members of the family his wife was intended to marry in Tonga.

   Returning to Tonga from Australia with a criminal record and no close connections

2. The Tribunal asked the applicant why he thinks he will not be able to earn money, find a place to live or do any of the things required to start a life in Tonga if he returns.  The Tribunal noted that he is married now and that his wife’s family could offer some support to them upon return.  The Tribunal also noted that he is a church going man and that the church would be another possible avenue of support to him on return.  Also, the Tribunal pointed out that the applicant is young, completed his schooling in Australia and speaks some Tongan.  Further, the Tribunal indicated that there appears to be no legal impediment to him obtaining work or accommodation.  The Tribunal discussed with the applicant the information relied on by the Delegate[4] regarding there being at least two organisations in Tonga which are dedicated to working with deportees from countries such as Australia from which he could also obtain support.  The applicant provided little by way of response but stated that his Tongan is only basic. Earlier in the hearing the applicant stated that he has no close family left in Tonga. 

   [4] UNESCO, ‘Returned to Paradise, Deported communities in Pacific Islands, VOICES UNESCO, No 24 October – December 2010; DIAC, Support for Returnees/Deportees, Tonga, 2 February 2011, CISTON11274

3. As to why people would look down on him for returning from Australia and because he has a criminal record, the applicant stated that he has worked hard to rehabilitate himself and that is why he now goes to church.  When asked how people would know about his past, he said that information like this travels fast in the Tongan community in Australia and can find its way back to Tonga as well.  Nevertheless, the Tribunal notes from the information before it that the applicant completed a prison sentence for [an offence several years ago] and has not reoffended.  Even if this fact became known in Tonga the Tribunal is not satisfied that it would result in him being harassed or discriminated against to the extent it would amount to significant harm. 

4. The Tribunal has considered the applicant’s claims and responses at hearing and while recognising that a return to Tonga will not be without its challenges for the applicant in the circumstances, the Tribunal is not persuaded that any hardship he will encounter meets the threshold of significant harm as defined for the purpose of assessing whether he is owed complementary protection.  The Tribunal considers the applicant has some family support in Tonga through his marriage, that he is physically fit to work, and that dedicated organisations, including churches, are working to provide support to persons like him, including persons with past criminal records, who are faced with returning to Tonga after living most of their lives abroad.  The Tribunal is not satisfied that there is real risk the applicant will be arbitrarily deprived of life, subjected to the death penalty, to torture or cruel or inhumane treatment or punishment or to degrading treatment or punishment if removed from Australia to Tonga for these reasons.

5. The applicant was asked whether he fears anything else on return to Tonga and he said he did not.

6. For the reasons given above, and having taken the applicant’s circumstances into account cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Tonga there is a real risk the applicant will suffer significant harm.  Therefore the applicant  is not a person in respect of whom Australia has protection obligations under the criterion set out in s.36(2)(aa) of the Act.

7. 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

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

   Tania Flood
   Member