1505567 (Refugee)

[2017] AATA 36

1505567 (Refugee) [2017] AATA 36 (4 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1505567

COUNTRY OF REFERENCE:                  Tonga

MEMBER:Rodger Shanahan

DATE:4 January 2017

PLACE OF DECISION:  Sydney

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

Statement made on 04 January 2017 at 9:24am

CATCHWORDS

Refugee – Protection visa – Tonga– Psychological harm and harassment from District head – No Convention reason – Failed to attend hearing

LEGISLATION

Migration Act 1958, ss 65, 36(2)(a), (aa), (b), or (c), 426A, 499

Migration Regulations 1994, Schedule 2

CASES

MIEA v Guo (1997) 191 CLR 559) at 596

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] August 2014 and the delegate refused to grant the visas [in] March 2015.

   CLAIMS AND EVIDENCE

   Protection Visa Application

3. The first-named applicant claimed that he had experienced psychological harm and harassment in Tonga from the District head. He had no one to look after him as his parents had divorced and the rest of his family was in Australia.

   AAT Hearing

4. The applicants failed to appear before the Tribunal on the day and at the time and place at which he was scheduled.  His ‘response to hearing invitation’ was returned to the Tribunal, indicating that neither the applicant nor his representative would be attending the hearing.   Pursuant to section 426A of the Act, I have decided to make my decision on the review without taking any further action to enable the applicant to appear before me.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The applicant is a [age] year old married Tongan father of two.  The Tribunal accepts that he is a citizen of Tonga based on the copy of the applicant’s passport on the departmental file.

6. The mere claim to fear persecution for a particular reason is not sufficient to establish that such a fear is either genuine or ‘well-founded’. The applicant is required to satisfy the Tribunal that all of the statutory elements necessary to establish that such a fear exists, are met. As Kirby J stated (MIEA v Guo (1997) 191 CLR 559) at 596:

   ‘the mere fact that a person claims fear of persecution for reasons of political opinion does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for reasons of political opinion.  It remains for the Minister in the first place to be satisfied and, where that decision is adverse and a review is sought, for the applicant to persuade the reviewing decision-maker that all of the statutory elements are made out.’

7. In this case the applicant’s written claims are very brief and lack detail. His claim that he suffers harassment from the District head gives no indication of the reason for that ‘harassment’, or what he has done to address the issues before coming to Australia. 

8. I also note that the applicant never attended his DIBP interview.  It is reasonable to believe that someone who feared serious harm and had to flee Tonga would be willing and able to provide information about those claims when invited to do so.

9. As the applicant hasn’t raised any other claims to fear persecution, and having had regard to all the evidence, and the applicant’s claims both singularly and cumulatively, the Tribunal finds that the applicant does not have a well-founded fear of persecution for any Convention reason either now or in the reasonably foreseeable future. 

   Complementary Protection

10. Because I do not accept that the applicant is being harassed by the District head in Tonga I am not satisfied that there are any substantial grounds for believing that there is a real risk of significant harm on the basis of these claims.

11. I also 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 they will suffer significant harm on the basis of these claims as outlined in the complementary protection criterion in s.36(2)(aa).

    CONCLUDING PARAGRAPHS

12. For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. Therefore the applicants do not satisfy the criterion set out in s.36(2)(a) or (aa) for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or (c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

    DECISION

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

    Rodger Shanahan
    Member

    
    

    ATTACHMENT A – RELEVANT LAW

    1. 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). 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.

    2. 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).

    3. 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’).

    4.        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 – to the extent that they are relevant to the decision under consideration.