1609652 (Refugee) - [2019] AATA 4252

1609652 (Refugee) [2019] AATA 4252 (26 April 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1609652
COUNTRY OF REFERENCE:                  Tonga
MEMBER:Meena Sripathy
DATE:26 April 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.

Statement made on 26 April 2019 at 12:34pm
CATCHWORDS
REFUGEE – protection visa – Tonga – domestic abuse – right to enter and reside in other country – ex-husband lives in that other country – referred for ministerial intervention –decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 36, 65, 417
Migration Regulations 1994 (Cth), Schedule 2
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

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicant a Protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant who claims to be a citizen of Tonga, applied for the visa on 17 June 2014 and the delegate refused to grant the visa on 31 May 2016.
The delegate refused the application in the present case on the basis that the applicant has a right to enter and reside in [Country] as she is the holder of a returning resident visa and she has not taken all possible steps to avail herself of that right, and therefore Australia does not have protection obligations in respect of her under s36(3).
The applicant appeared before the Tribunal on 30 January 2019 to give evidence and present arguments. The applicant’s children, [Child 2], [Child 3], [Child 1] and [Child 4] attended the hearing to give evidence in support of her claims. The applicant was not represented at the time of the hearing.
The issues in this case 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 (s36(2)(a)); and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of her being removed from Australia to Tonga there is a real risk that she will suffer significant harm (s.36(2)(aa)). If either of these issues are answered in the affirmative, the Tribunal must also consider whether s36(3) applies in the present case, which requires the Tribunal to consider whether the applicant has not taken all possible steps to avail herself of a right to enter and reside in [Country] and whether s36(4) and/or subsection (5) or (5A) apply.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Information in the application form indicates the applicant is a [age] year old woman, born in Tonga, and of Tongan nationality. She is separated from her husband since May 2014. She states that she has a right to enter and reside in [Country]. She holds a current Tongan passport issued in [2014] and valid to [2019]. She previously resided in [City], [Country] from September 1994 to October 2010. She resided in Tonga from May 2006 to March 2007. She is educated to [level], and holds [qualifications] from [Country]. She indicates past employment as [jobs] in Tonga and [Country]. She has [five children], all [Country] citizens and all residing in Australia on [temporary] visas. She has [siblings] who reside in Australia, and [siblings] who reside in [Country].
In her reasons for leaving her country the applicant states the following: She arrived in Australia with her (now former) husband and children. She suffered an abusive relationship at the hands of her former husband. She left Tonga with her husband in 1994 and has not returned there since then. Her parents have passed away and she has no one else in Tonga. All her siblings and children are either in Australia and [Country] and she has nowhere to go to if required to depart Australia. Her former husband has returned to [City], [Country] and she fears harm from him if she returns there because it is a small Tongan community in [Country] and he will be able to track her down. Even if the police can intervene she is afraid it would be too late. She has already had to go to the police in Australia and had to obtain restraining orders against him. Her ex-husband abuses alcohol and drugs and has a history of harming her in the past. She fears her husband will easily be able to locate her in [City] if she returns there.
The applicant submitted evidence of an Intervention Order dated [August] 2012 issued by the Magistrates Court at [Suburb], Victoria (valid to [August] 2013); a Statement in Support Regarding Abuse Suffered; and current Tongan passport with her application.
She was interviewed by an officer of the Department on 19 April 2016 and the Tribunal has listened to an audio recording of the interview.
A copy of the applicant’s previous, now cancelled, Tongan passport (2004-2014) is on file. This passport contains previously issued Australian’s visas, entry and exit stamps and a [Country] Returning Resident’s visa issued [in] January 2004 for an indefinite period, and permitting multiple entries. The visa states that it can be transferred when the passport expires.
On 31 May 2016 the delegate refused the application on the basis that s36(3) applies in her case, as she has a right to enter and reside in [Country] and none of the exceptions to this provisions in s 36(4), (5) or (5A) apply, and therefore Australia does not have protection obligations in respect of her.
Evidence before the Tribunal
The following supporting documents were provided to the Tribunal:
·A letter dated 14 January 2019 from [Mr A], the applicant’s brother, currently residing in [Country], stating that the applicant has no form of shelter on the family land in Tonga; he (the brother) is unlikely to return to rebuild as he lives in [Country]; and the applicant’s abusive ex-partner is living in [Country]. The writer also states that he recently found out the applicant’s ex-partner changed his legal name to escape criminal charges and past records in [Country] and he does not wish for his sister to have any encounter with him again. Photos of the vacant land in Tonga are attached.
·A detailed statement dated 17 January 2019 by the applicant setting out a chronology of her relationship and experiences of domestic violence at the hands of her former partner. Also attached are [Country] passport bio-data pages in respect of [Child 2] and [Child 4].
At the hearing the applicant stated she is presently living in accommodation provided for the family by the manager of her [children]’s [sport] club. Her eldest [children] are working in [occupation] and also playing [sport]. [Child 1] is pregnant at present and not working. [Child 4] recently finished school and will commence first year of university in [subject] this year. The youngest [child] is [age] years old and in year [number] of [school]. The applicant has one brother living in Australia at present, he was adopted out when they were young and she is not so close to him, though they have recently re-connected and he has visited them where they are presently living. She had another brother ([Mr A]) and a sister ([Ms B]) living here but they have both since re located back to [Country]. She has two other siblings in [Country] ([C] and [D]). One brother, [Mr E], is presently in [Country], seeking medical treatment. He has been living in Tonga since 2012 at [Location], with his wife and [children], but is quite unwell now and has been in [Country] for the past few months. The applicant said she is no longer close to this brother, as they had a falling out some years ago over the issue of money. She heard about him through her brother, [Mr A] with whom she is in regular contact. In Tonga, she has no close relatives, as her [uncles] and parents who resided there have all passed away. The family land is owned by her brother [Mr A], but his new wife arranged for the house on the property to be demolished several years ago and it has not since been rebuilt. She referred to the photos provided to the Tribunal with her submissions.
The applicant confirmed her employment and education history as provided in the application. She has not worked since she came to Australia but was working in Tonga and [Country]. The applicant confirmed her travel history. She was born in Tonga and has lived in [Country] and Tonga prior to coming to Australia in 2010. She first went to [Country] in around 1985 to study and stayed there until 1991. She returned to Tonga and married [Mr F] in 1994. They went back to [Country] to live in 1994 and all 5 of her children were born there. Since then she has returned to Tonga on several occasions, mainly to escape her former husband. He always followed her there and brought her back to [Country]. She sent her children to live in Australia with her family members here on numerous occasions for their safety. The applicant confirmed that she has a resident return visa for [Country] and can travel there at any time. She has not as yet transferred this visa into her current passport because she has no desire or intention to go to [Country] due to her fears of her former husband.
The Tribunal discussed the applicant’s claims. She separated from [Mr F] in March 2014 after a history of violence. She called a family meeting and announced her plan to the children and gave them an option to stay with her or go with him. They all elected to stay with her. Shortly after that he departed Australia and returned to [Country]. She said he arranged through a pastor to see all of the children before he left. They met at a church and he said good bye to them. However in their evidence, none of the children appeared to have any memory of this farewell visit.
The Tribunal asked the applicant about her contact with [Mr F] after he departed Australia. She said initially he stayed with his brother and she had contact through the brother. His old employer in Melbourne contacted her to invite him to return for work there. She passed this information along to her ex husband even though she had no desire for him to return here. However he did not take up the offer of employment.
The Tribunal asked about his contact with the children. She said that they have been back to visit him several times. [One child] went on one occasion for a [sport] match and he came along to watch it. She sent the younger two children to see him during the school holidays in around 2017. All 5 of the children went to see him for [a] long weekend in 2017. This was at her initiative because she wanted them to see what he was like for themselves. [Mr F] mostly has contact through [Child 1]. He is [in contact with her] on [social media]. In 2018, [Child 1] got married and she invited him, but he was unable to come because of visa issues. The applicant said she had some contact with him during this period because he agreed to contribute towards the cost of [Child 1]’s wedding dress. Apart from this they have had no other contact.
The applicant told the Tribunal as far as she knows he continues to have contact with [Child 1] and her partner and he has invited them to come to [Country].
The Tribunal asked the applicant what she knows of her former husband’s circumstances in [Country]. She said she believes he is working as a [occupation]. She has been told he is in a new relationship, and married this woman. She was told this by her first cousin who was the previous husband of the woman [Mr F] married. When she was told this she contacted the relevant authorities in [Country] to see if he had proceeded with divorcing her and there is no evidence that he has done this. However, the applicant’s cousin showed her a picture of [Mr A] and this woman getting married in a church [in] November 2018.
The Tribunal asked the applicant what she is afraid of if she returned to Tonga. She said [Mr F]’s village is close to her family’s village. He has family members there and she is afraid of them. He still has his father [and siblings] living in Tonga. The applicant said as recently as several weeks ago, [Mr F] called her daughter here and was furious with the applicant because he learned that [Child 4] had come to [Country] in November and did not see him. He blamed the applicant for this. The applicant said it was true that [Child 4] went to [Country] after her exams but she did not want to see her father. The applicant said that this phone call and expression of anger shows that [Mr F] is still angry with her and she will be at risk of harm from him in Tonga and [Country]. She fears that he will come to Tonga if she goes there and take his anger out on her. She believes he wants her out of the way to get her children. She gave another example that when [Child 4] recently changed [his/her] name and posted this to [social media], [Mr F]’s relatives in Tonga were angry about that and told her to change it back.
The Tribunal asked the applicant if her former husband has asked her to come back to him since they separated. She said he did, soon after they separated. She went to see one of his sisters once and the sister tried to convince her to return with the children to [Country]. She told her there is nothing for them there. The applicant said she is very clear she will not go back to him.
The Tribunal put to her that given this and her evidence that he is in a new relationship and they are no longer in a domestic relationship, the Tribunal may consider there is not a real chance of domestic violence towards her by him in Tonga or even [Country]. In response, the applicant said she is still afraid of him because of the anger he continues to show towards her. Also, she said, there is nothing for her in Tonga. She has no home to go to and no family support. She has no connection to any church there. It will be difficult for her to get work because of her age and the time she has been away. Her children will not be able to come to Tonga because their lives are here, and so she will be separated from them. She is afraid of her former husband’s family because they previously pressured her to return to him. She fears they will cause her psychological harm. She cannot face his family because of what he did to her. She has also heard that drugs are a big problem now in Tonga and the level of criminal activity is high and she is afraid for her security, especially as she will be alone.
The Tribunal discussed with the applicant the issue of her right to enter and reside in [Country]. She agreed that she has the right to return and reside in [Country]. But she is afraid of [Mr F] in [Country], because he has not already divorced her and therefore she cannot be certain that he is not interested in her still. When asked why she has not obtained a divorce from him here, she said she tried to but has not so far because her lawyer ceased working for her. She intends to apply for a divorce.
The Tribunal asked the applicant why the police cannot protect her in [Country] if he threatens to harm her. She said that she knows from past experience that they are slow to come when called. She doesn’t trust they can protect her. She cannot bring her children with her. She cannot stay with her family there also. She fears [Mr F] will find her when she is alone. She believes he will harm her because he wants the children. Even though he is involved with another woman she doesn’t know how long that will last as he has had many other women in the past.
The Tribunal took oral evidence from each of the children who attended. They all confirmed to the Tribunal that the relationship between the applicant and their father ended in or around March 2014 and their father left Australia for [Country] that same year. [Child 1] told the Tribunal that he is in contact with her on [social media]. She has been to see him several times since he left. She referred to visits in 2015 and then 2016 or 2017. She said she went both times by herself and stayed with him. She said she did not feel particularly close to her father despite these visits. She believed he was still the same as before and continued to have anger issues. She said her father talks negatively about the applicant all the time, he uses her to try to control them. [Child 1] told the Tribunal she fears for her mother’s safety in Tonga and [Country]. In Tonga she fears her mother would face harm from his family members. For example they blame the applicant because [Child 1] changed her name from her father’s [family name]. [Child 1] told the Tribunal if her father harmed her mother, that would be the end of her relationship with her father. She has said as much to her father, but still fears for her mother’s safety because she believes he is still angry with her. She believes the applicant is safest in Australia because he cannot get to her here.
[Child 3] and [Child 2] both gave evidence that they have seen their father in [Country] on one or two trips back. [Child 3] said one of [his/her] trips was to play [sport] and [s/he] told [his/her] father after he arrived. [His/her] father came to the game to watch it but they did not spend any other time together. [Child 2] told the Tribunal [his/her] father never had a good relationship with [him/her] because [the] mother named [him/her] and [the] father always took out his anger about that on [him/her]. [He/she] has no particular interest in having a relationship with [the] father because of what he has done in the past. Both [children] fear for their mother if she returned to Tonga or [Country]. They fear their mother would be harmed by the relatives of their father in Tonga and by their father in [Country]. Even though their father has remarried, they believe he continues to be angry with the applicant and could harm her again.
[Child 4] told the Tribunal [s/he] has travelled to [Country] a couple of times to see [his/her] father. [Child 4] said despite what he has done he is [the] father. [Child 4] said he often tries to turn [him/her] against [the] mother. [He/she] fears for [the] mother’s safety in Tonga because his family are all there and they have been abusive against her in the past. [The] father has connections with law enforcement there. [Child 4] said he is manipulative and is always trying to use the children to get at the applicant. She said [his/her] mother is safe here and justice will not be served if [he/she] has to leave.
Each of the applicant’s children who gave evidence stated that they would visit the applicant if she returned to Tonga or [Country] but it would be hard on them as well as her to be separated. They also each indicated that they would not have a relationship with their father if he caused harmed again to their mother.
On 11 March 2019 the Tribunal received further information from the applicant in support of her application, including a letter from the applicant, police and court records relating to domestic violence complaints made by her in [Country] in the past, a support letter from Rev [G] of the [Church], and country information regarding family violence issues in [Country] and Tonga and drug and security issues in Tonga.
A further letter from the applicant was provided to the Tribunal on 2 April 2019 reiterating her claims that she will not be safe in Tonga or [Country] because her ex-husband is in [Country] and can access Tonga.
FINDINGS AND REASONS
Nationality
On the basis of her evidence to the Tribunal, and copies of her Tongan passports on the Department file, the Tribunal accepts the applicant is a national of the Kingdom of Tonga and considers Tonga is her country of nationality and the receiving country for the purpose of assessing her claims against the refugee and complementary protection criteria.

The Tribunal finds, and it is not disputed by the appliant, that she has an ongoing entitlement to a Returning Resident’s visa which gives her a right to enter and reside in [Country] on an indefinite basis.
Consideration of applicant’s claims
The applicant fears harm upon return to Tonga from her ex-husband and his family due to a history of domestic violence at his hands in the past both there and in [Country]. She also claims that she has no family support in Tonga and would have no access to housing or social support and she would be vulnerable there as a woman with no family support due to drug related crime and the general security situation.
Family violence claims
The applicant provided a detailed and extensive history of domestic violence at the hands of her former husband over a period of almost 20 years in Tonga, [Country] and Australia. Her claims are corroborated and supported by evidence from her children and support letters from her brother and pastor. She has also provided documents of police complaints made against her former husband in [Country] between 1998-2008 and a 12 month Intervention Order against him issued by the [Suburb] Magistrates Court in Victoria in August 2012. She gave oral evidence to the delegate at interview and elaborated on her domestic violence claims before the Tribunal at a hearing.
On the basis of all of this evidence the Tribunal accepts that the applicant has suffered domestic violence at the hands of her former husband over many years in Tonga, [Country] and Australia. It accepts on her evidence that they married in Tonga in 1994 and he is originally from Tonga, and now resides in [Country]. On the applicant’s own evidence, she separated from her former husband in 2014, and he returned from Australia to [Country] that same year. It accepts, on her evidence, that this separation is final from her perspective, and she has no desire to reconcile with him in future.
Since his departure from Australia in 2014, the applicant’s children have visited their father in [Country] a number of times. On the basis of their evidence, the Tribunal finds that he is interested in having an ongoing relationship with his children.
The applicant told the Tribunal at the hearing that she has heard from a third party that her former husband has re-partnered and is said to have married his new partner in November 2018, although to her knowledge he has not formally divorced her to date and therefore she has doubts about whether he was able to re-marry. Despite this, she fears harm from him in future on the basis of his history of violence towards her.
Risk of future harm in Tonga from her former husband or his relatives
The Tribunal is not satisfied on the evidence before it, that there is a real chance the applicant will face serious harm from her former husband or his relatives in Tonga in the reasonably foreseeable future. The reasons for this are that they have formally and finally separated since 2014, 5 years ago now. He returned to [Country] in 2014 and he is living there since then. She has no desire or inclination to reconcile with him. On her own evidence he has re-partnered, which indicates he too has moved on and has no interest in reconciling the relationship. The applicant gave evidence that she has had some contact with him since 2014, but she did not indicate any direct threats of harm to her, or undue pressure on her to reconcile, in the context of those contacts. It acknowledges her children’s evidence that he has expressed negative views about her to them and appears to still harbour anger towards her, but that is not of itself surprising given that they separated, the children chose to remain with her, and they continue to be separated from him after five years. Other than their oral testimony, there is no other evidence before the Tribunal that he or any of his family members have directly threatened her or put pressure on her to reconcile or otherwise suggested they pose a risk of serious harm to her were she to return to Tonga in the foreseeable future.
The Tribunal acknowledges there is support in country information sources that domestic violence has been and continues to be an issue in Tonga given prevailing attitudes towards the role of women in public and private life combined with limited resources and a lack of community awareness. Tonga's only national study of domestic violence found 77 per cent of women had experienced physical, emotional or sexual abuse.[1] However, the Tribunal also notes that legislation in place since 2013, the Family Protection Act, makes domestic violence a criminal offence and courts are empowered to issue Protection Orders protect victims of violence within domestic relationships. These developments signal that domestic violence is no longer solely considered a private matter.[2] The 2018 US State Department Country Report on Human Rights in Tonga refers to police investigating reported rape cases and the government prosecuting these cases under the law. The Report also refers to the police domestic violence unit having a “no-drop” policy in complaints of domestic assault, and once filed, domestic violence cases cannot be withdrawn and must proceed to prosecution in the magistrates’ courts.[3]
[1] For example, see 'Tackling Violence Against Women in Tonga', Australian Volunteers for International Development (AVID), 21 September 2016, CX6A26A6E9471, and Peter Munro, The Friendly Islands are no friend to women, 11 July 2015, SMH,
[2] 'Tonga magistrates and lawyers discuss implementation of Family Protection Act', Pacific Community, 19 December 2016, CX6A26A6E16061
[3] 'Country Reports on Human Rights Practices for 2018 - Tonga', United States Department of State, Bureau of Democracy, Human Rights, and Labor, United States Department of State, 13 March 2019, 20190314141908
Taking into account this independent information together with the findings above that her former husband is (and has been for some time) living in [Country]; they have been separated since 2014 and there is no evidence before the Tribunal to suggest any recent contact or pressure has been placed on her by his family now since they separated and he has moved on to another relationship, the Tribunal is not satisfied that the applicant faces a real chance of serious harm from her former husband or his family upon return to Tonga. While the Tribunal acknowledges, given her history of domestic violence, that she may have a genuine subjective fear of harm from him, it is not satisfied on the evidence, that there is an objective basis to that feared harm and therefore it is not satisfied that she faces a well -founded fear of persecution upon return to Tonga on this basis.
Fear of harm due to lack of support and crime levels in Tonga
The applicant claims she will face harm because she has no family or other support and she will be vulnerable given high crime levels in Tonga.
In considering these claims, the Tribunal accepts that the applicant left Tonga soon after her marriage in 1994 to reside in [Country] and subsequently Australia and that she has not lived in Tonga for many years. It accepts, on her evidence, that she has little family support there, with her parents deceased and most of her siblings settled in [Country]. While she has one brother and his family who reside in Tonga, she gave evidence that this brother is presently in [Country] for health reasons. It accepts that the family property is owned and controlled by one of her brothers, in accordance with Tongan inheritance laws, and that in any event, the house on that property was demolished.
The Tribunal accepts that independent information indicates there are limited employment opportunities in Tonga[4] and, given evidence that labour force participation rates for woman are lower than for men, the situation may be even more difficult for the applicant as a woman.[5] It also accepts the importance of the family unit in Tongan culture and society to meet basic needs[6] and the applicant’s lack of family support will mean that she will face significant difficulties to live and subsist.
[4] ‘Return[ed] to Paradise: The Deportation Experience in Samoa and Tonga’, Pereira, N, United Nations Educational, Scientific and Cultural Organisation, 2011, p.40, CISD9559B12362
[5] It is noted that in 2014, the labour force participation rate for men in Tonga was 74.3 per cent (compared to 52.9 per cent for women): ‘Tonga: World Statistics Pocketbook’, UN Data, undated, CISEDB50AD352
[6] ‘Tonga: A Situational Analysis of Children, Women & Youth’, UNICEF, 2006, p.5, CISBE8E6BE795
The Tribunal understands the applicant’s claims arising from her evidence are that as a woman without family support she will be vulnerable to serious harm as a result of generalised criminal violence and poverty if she is returned to Tonga. Section 91R(2) sets out a non exhaustive list of what may be considered serious harm for the purposes of ‘persecution’ which includes threats to life and liberty, significant physical harassment or ill treatment and significant economic hardship that threatens the person’s capacity to subsist. It accepts the applicant’s claims she will face these kinds of harms because she will be alone without family support upon return to Tonga. While it accepts that ‘woman without family support’ is capable of constituting a particular social group as that concept is understood in the case of Applicant S, it does not accept, even considering the above mentioned country information, that the evidence supports a finding that the essential and significant reason for the above mentioned feared harm can be attributed to her membership of this particular social group nor that the persecution involves systematic and discriminatory conduct as required by s91R(1).
The evidence before the Tribunal indicates the applicant lived her life to adult age in Tonga, was educated there to [level] and also has [qualifications] from [Country]. She held employment positions in Tonga in the past at various points of time, most recently in 2008 at the [Employer]. Additionally, she has four adult aged children in Australia. On their own evidence they are all supportive and loving of their mother and indicated that they would visit and support her if she were to return to Tonga. Although the Tribunal acknowledges this would not be without hardship given their relatively young ages and early stages in their adult lives the Tribunal finds that the applicant has access to support from her adult Australian based children and she has capacity to obtain employment given her education level and past employment history. While it acknowledges that she may face difficulties obtaining accommodation and employment upon return to Tonga and she may have concerns about her personal security from random criminal acts, it is not satisfied on the evidence before it that this would be for the essential and significant reason of her status as a woman without family support.
Having regard to all of the above and the applicant’s claims considered individually and cumulatively, the Tribunal is not satisfied that she faces a real chance of serious harm upon return to Tonga in the foreseeable future for a Convention based reason.
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 the Refugees Convention. Therefore the applicant does not satisfy the criterion set out in s.36(2)(a).
Complementary Protection
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 has considered whether 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 she will suffer significant harm as defined in s36(2A) of the Act. Specifically the Tribunal has considered whether there is a real risk the applicant will be arbitrarily deprived of her life; or the death penalty will be carried out on her; or she will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment if she is returned to Tonga.
For the same reasons as considered above in relation to her refugee claims (namely, that she and her former partner have been separated since 2014, he is residing in [Country], he has re-partnered and there is no evidence that he nor his family have recently pressured her to reconcile) the Tribunal is not satisfied the applicant faces a real risk of significant harm from her former husband or his family members on account of the history of domestic violence.
The Tribunal has considered the applicant’s claims that she will suffer harm from unemployment, lack of accommodation and/or criminal violence due to an absence of family or social support. With regard to these claims the Tribunal finds that unemployment, difficulties in finding accommodation and financial hardship do not come within the meaning of significant harm as contemplated by that term in s36(2A). The Tribunal is not satisfied on the evidence before it that the applicant faces a real risk of cruel or inhuman treatment or punishment or degrading treatment or punishment, within the meaning of these terms, or significant harm of any other kind, if she is returned to Tonga.
To the extent the applicant fears harm from criminal violence it is prepared to accept, on the basis of the news articles she submitted, that there are drug related criminal violence issues in Tonga. However the Tribunal considers that to the extent the applicant faces a real risk of significant harm as a victim of drug-related criminal violence, it is one faced by the population of the country generally and not faced by her personally and on that basis there is taken not to be a real risk of significant harm in respect of her under s36(2B) of the Act.
For the above reasons the Tribunal is not satisfied, having considered her claims individually and cumulatively, that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
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).
Given the conclusions above that the applicant is not a person in respect of whom Australia has protection obligations under s.36(2)(a) or (aa), it is unnecessary for the Tribunal to consider whether Australia does not have protection obligations in respect of her under s36(3) and accordingly the Tribunal does not address or make any findings on this issue.
REFERAL FOR CONSIDERATION FOR MINISTERIAL INTERVENTION UNDER S417
The applicant has not expressly made a request to the Tribunal for referral of her matter to the Minister, but the Tribunal nevertheless considers it to be an appropriate case to be drawn to the Minister’s attention for consideration under s417.
As found by the Tribunal above, the applicant is the victim of substantial and serious domestic violence at the hands of her long term partner over many years and across multiple countries, including Tonga, [Country] and Australia. The perpetrator of her abuse departed Australia in 2014 and appears to have no means to return, enabling her to finally live in circumstances of security and safety. All five of her children lawfully reside in Australia and have been lawfully residing here on the basis of their [Country] citizenship since 2010. The youngest child came here at [age] and is now in year [number] of [school]. [Child 1] is married and pregnant with her first child. Her [other children] are establishing themselves in [sport] careers in Australia. Another [child] has commenced her first year of a [degree] this year. Her children have spent the formative years of their young lives in Australia and are thriving and contributing to Australian society. Removal of their mother from Australia would cause serious disruption and hardship to all members of the family, who are all Australian permanent residents.
The Tribunal considers that this case presents unique or exceptional circumstances, namely strong compassionate circumstances which if not recognised would cause serious, ongoing and irreversible harm to multiple Australian permanent resident members of the applicant’s family. Accordingly, having considered the ministerial guidelines relating to the Minister’s discretionary power under s.417, set out in departmental policy ‘Minister’s guidelines on ministerial powers (s351, s417, and s501J)’ the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention.
The applicant is encouraged to submit further supporting information directly to the Minister addressing her exceptional and compassionate circumstances.
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Meena Sripathy
Member

RELEVANT LAW
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.
Subsection 36(2) of the Act, which refers to persons in respect of whom Australia has protection obligations, is qualified by subsections 36(3), (4), (5) and (5A) of the Act. They provide as follows:
Protection obligations
(3) Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.
(4) However, subsection (3) does not apply in relation to a country in respect of which:
(a) the non-citizen has a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; or
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the country.
(5) Subsection (3) does not apply in relation to a country if the non-citizen has a well-founded fear that
(a) the country will return the non-citizen to another country; and
(b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion.
(5A) Also, subsection (3) does not apply in relation to a country if:
(a) the non-citizen has a well-founded fear that the country will return the non-citizen to another country; and
(b) the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen availing himself or herself of a right mentioned in subsection (3), there would be a real risk that the non-citizen will suffer significant harm in relation to the other country.
This means that where a non-citizen in Australia has a right to enter and reside in a third country, Australia will not have protection obligations in respect of that person if he or she has not availed himself or herself of that right unless the conditions prescribed in either s.36(4), (5) or (5A) are satisfied, in which case the s.36(3) preclusion will not apply.

The Full Federal Court in MIMAC vSZRHU (2013) 215 FCR 35, has held that the term ‘right’ in s.36(3) should not be restricted to a right in the strict sense which is legally enforceable. Rather, it should include the notion of liberty, permission or privilege lawfully given, albeit capable of withdrawal and not capable of enforcement; or a liberty, permission or privilege which does not give rise to any particular correlative duty upon the state in question.
In determining whether these provisions apply, relevant considerations include: whether the applicant has a liberty, permission or privilege lawfully to enter and reside in a third country either temporarily or permanently; whether he or she has taken all possible steps to avail himself or herself of that right; and whether s.36(3) does not apply because of the operation of s.36(4), (5) or (5A).
Refugee criterion
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).
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.
Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the Regulations to a particular person.
There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve ‘serious harm’ to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). Examples of ‘serious harm’ are set out in s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase ‘for reasons of’ serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
Fourth, an applicant’s fear of persecution for a Convention reason must be a ‘well-founded’ fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a ‘well-founded fear’ of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of being persecuted for a Convention stipulated reason. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
Whether an applicant is a person in respect of whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.
Complementary protection criterion
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’).
‘Significant harm’ for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s.5(1) of the Act.
There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
Section 499 Ministerial Direction
In accordance with Ministerial Direction No.56, made under s.499 of the Act, the Tribunal is required to take account of 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.

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Citations

1609652 (Refugee) [2019] AATA 4252

Cases Citing This Decision

Cases Cited

Statutory Material Cited

Ametllari v Minister for Immigration and Border Protection [2015] FCCA 603