1516019 (Refugee)

[2016] AATA 3110

1516019 (Refugee) [2016] AATA 3110 (18 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1516019

COUNTRY OF REFERENCE:                  Tonga

MEMBER:David Corrigan

DATE:18 January 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 18 January 2016 at 8:21am

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 [in] November 2015 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] October 2015.

3. The applicant appeared before the Tribunal on 15 January 2016 to give evidence and present arguments.

   CRITERIA FOR A PROTECTION VISA

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, he or she 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 because the person is a refugee.

6. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themself of the protection of that country: s.5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s.5H(1)(b).

7. Under s.5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a  person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.  

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 the 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 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’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.

   Mandatory considerations

9. In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal has taken 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 relevant country information assessments 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

10. The applicant’s claims can be summarised as follows.  He was born in [his home town], [his home area], Tonga in [year].  He did not feel safe in Tonga due to gang activity and came to Australia hoping for a better life.  He feels his life would be at risk and his elderly parents have asked that he stay in Australia.  He has been assaulted and he had to move to his parents’ house to due to threats of harm from gang members and the family of an ex-defacto.  He moved constantly between family members’ homes throughout Tonga.  He received a phone call from someone threatening to kill him.  He received three more calls but did not answer them as the caller identity displayed “private number” and he thinks they could be from the same person.

    Country of reference

11. The applicant claims to be a Tongan national.  Based on the copy of his passport, I find that Tonga is his country of nationality and also his receiving country.

    Assessment of claims

12. I have considered carefully the applicant’s claims but I do not consider him to be a credible witness.  I do so for the following reasons:

    ·The applicant has given fundamentally and highly significant inconsistent evidence concerning his key claims.  For example, he first told the Tribunal that since coming to Australia, that no one had threatened him.  However, when I put to him that he had told the delegate at interview that had received a phone call from a person threatening him, he said that did happen.  He said he wasn’t sure whether I had meant here or in Tonga.  I have considered his explanation, however he it does not resolve the inconsistency that he first told the Tribunal that no one had threatened him since coming to Australia.  The applicant also told the Tribunal that when he was in Tonga he had a drunken altercation with a bunch of boys who had threatened him, but he had earlier in the hearing told the Tribunal that he did not have any problems when he was in Tonga.  I do not accept his explanation as being credible that he could not recall this claimed incident when earlier asked if he had any problems if this incident had actually occurred. 

    ·As set out in the delegate’s decision (a copy of which was submitted to the Tribunal), the applicant arrived in Australia [in] May 2014 on a [temporary] visa valid until [November] 2014.  He became unlawful [the next day] until he was located by the NSW police [in] May 2015 and two days later was granted a bridging visa.  His bridging visa ceased [later in] May 2015 and he again became unlawful and was located by the Victorian police [in] August 2015.  The applicant’s long periods of unlawfulness, ended only by detection by the police and the long delay in applying for protection are matters that significantly detract from the credibility of his claim to fear harm returning to Tonga.  The applicant did not provide any comment to the Tribunal when this was put to him at the hearing.  I have taken into account the applicant’s partner’s oral evidence to the Tribunal that the applicant was not aware of protection visas until they met and that he did not understand letters and she had to read them to him, however I consider his poor immigration history and failure to seek the advice of the Department concerning his situation detracts substantially from the credibility of his claims.

    ·As set out in the delegate’s decision, the applicant was the subject of a Departmental compliance client interview [in] August 2015.  In that interview, he was asked if there were any reasons he could not return to his home country and he said that there was nothing stopping him from going however his girlfriend wanted him to stay so they could have a baby.  He said he was willing to depart and could maybe the following week after the wedding.  The applicant did not mention any fear of harm or matters pertaining to such at this interview and I consider these answers significantly detract from the credibility of his claim to fear harm returning to Tonga and to have been threatened there in the past.  The applicant did not provide any comment to the Tribunal when this was put to him at the hearing. 

    ·The applicant claimed that one month prior to his interview with the delegate, he received a threatening phone call from an unidentified person from Tonga and that he received more phone calls from a private number but he did not answer them as he thought they were from the same person.  I consider it farfetched and implausible that he would be the subject of such a threatening call from someone in Tonga or that the other private number calls were intended to be threatening.  The applicant had not been in Tonga for well over a year and I consider it far-fetched that he would have received a threatening phone call from an unknown person in Tonga and completely speculative that it was one of the boys he claims he had a drunken altercation with in the past.

13. Given these highly significant concerns about his credibility, I do not accept that the applicant was ever threatened or assaulted or harmed by any individual in Tonga or Australia (including gang members, drunken boys or the family of an ex-defacto).  I do not accept that someone tried to fight with him due to a rumour about him and a woman in the village.  I do not accept that he ever had to move between family members’ homes.   I do not accept that he is or ever was of adverse interest to anyone in Tonga

14. In making my findings, I have taken into account the Tribunal's Guidelines on the Assessment of Credibility (including the effects of anxiety and trauma on applicants and the passage of time).  However, these do not overcome the highly significant concerns I have about the applicant’s credibility set out above

15. I accept that criminal gangs operate in Tonga,[1] however I have found that the applicant has not experienced any difficulties from these gangs or their members in the past.  Available country information before me does not indicate that the activities of these gangs are so prevalent, that the chance or risk of him being seriously harmed or significantly harmed is anything more remote.  The most recent human rights reports of the US State Department and Freedom House do not mention gangs or their activities[2] and the Tribunal has no other information that indicates that gang violence and activities are of such prevalence.  The applicant did not provide any comment on these matters when this put to him at the hearing.

    [1] Department of Foreign Affairs and Trade, Country Information Request No TON42736: Criminal Gangs in Tonga, 10 October 2013, (CX314768).

    [2] United States Department of State, Country Reports on Human Rights Practices for 2014, Tonga; Freedom House, Freedom in the World 2015 – Tonga.

16. The applicant told the Tribunal that there was no hope for him in Tonga and there was no way he could earn a living and that he could not support himself there.  Asked what work he did there, he said he had worked in the bush doing farming with others.  However, as put to him at the hearing, whilst Tonga is a poorer country than Australia, the applicant is a man in his [age range] with no family to support and on his own evidence he was able to obtain work previously in Tonga.  I do not accept (particularly given his general lack of credibility) that he would be unable to obtain work to support himself in the reasonably foreseeable future.  There is nothing in his evidence to suggest that he faces in the reasonably foreseeable a real chance of being denied the capacity to earn a livelihood of any kind, where the denial would threaten his capacity to subsist or any other treatment that would amount to serious harm.  Nor does his evidence indicate that any potential economic problems or difficulties finding work he says he faces would be due to systematic and discriminatory conduct on behalf of any actor.  Nor does his evidence indicate that any of these economic issues or difficulties finding work he says he faces would amount to significant harm as defined in Australian law.  It would not involve the arbitrary deprivation of life, torture or the carrying out of the death penalty.  Nor would it involve any intentional act or omission for it to constitute cruel or inhuman treatment or punishment or degrading treatment or punishment.  The applicant did not provide any comment when these matters were put to him at the hearing, nor did he indicate any actor who would be responsible.

17. Two written statements of the applicant’s Australian partner were submitted to the Tribunal and she gave oral evidence to the Tribunal.  This evidence related to their relationship and his care and support she received from in relation to her own personal difficulties.  However it did not address the applicant’s claimed specific fears of why he could not return to Tonga and the applicant told the Tribunal that she was not aware of these and was just there to support him.

18. Considering the applicant’s individual circumstances and the independent country information on a cumulative basis, I find there is not a real chance that he would be persecuted for any reason (including race, religion, nationality, membership of a particular social group or political opinion).  His fear of persecution is not well-founded as required by s.5J of the Act and therefore he is not a refugee within the meaning of s.5H.

19. Considering the applicant’s individual circumstances and the independent country information on a cumulative basis, I find that there are not substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Tonga that there is a real risk that he will suffer significant harm.

    Conclusions

20. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).

21. Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

22. 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

23. The Tribunal affirms the decision not to grant the applicant a protection visa.

    David Corrigan
    Member

    
    

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation
    …
    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)that is not inconsistent with Article 7 of the Covenant; or

    (d)arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)that is not inconsistent with Article 7 of the Covenant; or

    (b)that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)for the purpose of intimidating or coercing the person or a third person; or

    (d)for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …
    receiving country,  in relation to a non-citizen, means:

    (a)a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5J Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:    For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:    For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in them practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)    denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K  Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L  Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA  Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    ..

    36Protection visas – criteria provided for by this Act

    …

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)    the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)    the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)    the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …