1619597 (Refugee)

1619597 (Refugee) [2017] AATA 2938 (16 November 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1619597
COUNTRY OF REFERENCE:                  Tonga
MEMBER:Linda Symons
DATE:16 November 2017
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Protection visas.

Statement made on 16 November 2017 at 4:14pm
CATCHWORDS
Refugee – Protection visa – Tonga – Social group – Victim of attack by drug dealers – Fear of harm by drug dealers – Credibility Issues with first applicant
LEGISLATION
Migration Act 1958, ss 5I-LA, 36, 65, 351, 499
Migration Regulations 1994, 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 [in] November 2016 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The first named applicant, who claims to be a citizen of Tonga, first arrived in Australia [in] June 2008 as the holder of a [temporary] visa that was valid until [September] 2008. He departed Australia [in] July 2008 and returned [in] July 2008. His [temporary] visa expired [in] October 2008 and he thereafter remained in Australia as an unlawful non-citizen. He was located by the Department of Immigration and Border Protection (the Department) [in] November 2010 and thereafter granted 31 Bridging visas with the last one being [in] March 2016.
[In] March 2011, the first named applicant applied for [the second temporary] visas. [In] June 2012, that application was refused. He applied to the Migration Review Tribunal (the Tribunal) for review of that decision and on 17 July 2013 the Tribunal affirmed the Department’s decision. [In] August 2013, he made a request for ministerial intervention under s.351 of the Act. [In] September 2015, he made a submission under s.351 of the Act. [In] November 2015, that submission was not considered.
The second named applicant, who claims to be a citizen of Tonga, is the wife of the first named applicant. She first arrived in Australia [in] June 2008 as the holder of a [temporary] visa that was valid [until] September 2008. [In] July 2008, she departed Australia and returned [in] July 2008. Her [temporary] visa expired [in] October 2008 and see thereafter remained in Australia as an unlawful non-citizen. She contacted the Department [in] August 2009 and was thereafter granted 31 Bridging visas with the last one being [in] February 2016. [In] March 2011, she was included in the first named applicant’s application for [the second temporary] visas.
The third named applicant is a child of the first and second named applicants. He was born in [Australia]. He was included in the first named applicant’s application for [the second temporary] visas. He has been granted 24 Bridging visas with the last one being [in] February 2016.
The fourth named applicant is a child of the first and second named applicants. He was born in [Australia]. He has been granted 7 Bridging visas with the last one being [in] February 2016.
The applicants applied for Protection visas [in] January 2016. The delegate refused to grant the visas on the basis that the first named applicant is not a person in respect of whom Australia has protection obligations and the second, third and fourth named applicants, who are members of the same family unit, are accordingly not entitled to the visas. On 22 November 2016, they applied to the Tribunal for review of that decision.
The first and second named applicants appeared before the Tribunal on 31 August 2017 to give evidence and present arguments. They were assisted by an interpreter in the Tongan and English languages.
The issues that arise on review are whether the first named applicant is owed Australia's protection under the refugee criterion or under the complementary protection criterion.
CRITERIA FOR A PROTECTION VISA
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.
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.
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).
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.
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
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 AND FINDINGS
The first named applicant’s claims in his application for Protection visas are summarised as follows: –
·He left Tonga [in] July 2008. One of the reasons he left Tonga was to seek opportunities overseas that were safer for him.
·In December 2000, he was attacked by thugs, who were drug dealers, because he was a [government employee]. He was badly injured and hospitalised for two weeks. He had [been injured] that still cause him problems [particularly] during winter.
·He expected the Police Department to do something about it but they did not do anything. He was interviewed but no charges were laid against them.
·He lived at [a Tongan city] when he was attacked and moved to [another location] after a while. Both areas are in [Island 1]. He still felt insecure because [Island 1] is a small place and they could easily find him.
·He was told that these drug dealers are still operating in Tonga and is afraid that they will attack him again. Among the leaders was a person named [name] who was deported from Australia. There is [another] who was deported from [another country].
·If the drug dealers know he has returned from overseas they may threaten him or harm him for money or property. They regard him as an enemy because he worked for [a government department].
·Corruption is rife in Tonga. The Police did not help him previously. They may help him temporarily in the future but not all the time.
·He cannot relocate within Tonga as the country is very small.
The second named applicant did not make any claims in her own right in the visa application or before the delegate during the Departmental interview. During the hearing, she made the following claims for the first time:
·She fears for her security and the security of her children if she returns to Tonga.
·She has a daughter from another relationship who is an Australian citizen. If she has to return to Tonga she will have to take her daughter with her as she has lived with her all her life.
The first named applicant has provided to the Department copies of his Marriage Certificate, the third and fourth named applicants’ Birth Certificates, their Tongan passports, a copy of the bio data page of [the second applicant’s daughter] Australian passport, a letter dated [in] November 2016 from [a] Hospital and a letter dated [in] October 2016 from [the] Police [Station].
The first named applicant attended an interview with the Department [in] November 2016. The interview was held with the assistance of a Tongan interpreter. During the interview, he stated that he made a mistake with the date and that he was assaulted [in] August 2005.
The first named applicant has provided to the Tribunal a copy of the Department’s Decision Record dated [in] November 2016.
Nationality
The Tribunal finds that the applicants are citizens of Tonga based on their passports which are before the Tribunal and will assess the claims of the first and second named applicants on this basis. The Tribunal finds that the first and second named applicants are outside their country of nationality. There is no evidence before the Tribunal to suggest that they have a right to enter and reside in any country other than their country of nationality.
Membership of the same family unit
The Tribunal finds that the second named applicant is the wife of the first named applicant and the third and fourth named applicants are his dependent children. The Tribunal finds that the second, third and fourth named applicants are members of the same family unit as the first named applicant.
Does Australia have protection obligations to the applicants under the refugee criterion?
First named applicant
The first named applicant gave evidence to the Tribunal that a friend prepared his application for Protection visas. He stated that he provided his friend with the information to prepare his visa application and that the information he provided was true and correct. He stated that he is satisfied that his visa application is accurate and complete. He stated that there have been no changes in his circumstances since he filed his visa application.
During the hearing, the Tribunal discussed with the first named applicant his background, his family, his employment, where he lived, his reasons for leaving Tonga and why he fears returning to Tonga. The Tribunal found aspects of his evidence to be implausible, inconsistent and unconvincing. His conduct has not been consistent with his claims. The Tribunal is of the view that he is not a credible or reliable witness for the following reasons:
First, in his visa application, the first named applicant claimed that he was attacked by thugs, who were drug dealers, in December 2000 because he was an employee of [a government department]. He claimed that he was badly injured and hospitalised for two weeks. He claimed that he had [injuries] that still cause him problems [particularly] during winter. During his interview with the Department [in] November 2016, he claimed that he had made an error in relation to the date of the assault and stated that it happened [in] August 2005.
During the hearing, the first named applicant gave a different version of events. He stated that he was in a [location] when some of the friends of the drug dealers attacked him. He stated that he escaped in his car. He stated that they chased him and he had an accident. He stated that they caught up with him and attacked him again. He stated that that was why he suffered injuries. He stated that he was then taken to hospital in a different vehicle. He has provided to the Department a letter dated [in] November 2016 from [a] Hospital which indicates that he was admitted to hospital [in] August 2005 following a motor vehicle accident and remained in hospital for ten days. It makes no mention of him being assaulted. It lists his injuries but makes no mention of him having any [injuries] as claimed. These inconsistencies in his evidence raise concerns about his credibility and the veracity of his claims.
Second, during the course of the hearing, the first named applicant made new claims that he had been followed and attacked a few times [by] the two drug dealers in 2000 and being assaulted by them [in] August 2005. He stated that he did not report these attacks to the Police. He offered no explanation as to why he did not mention this in his visa application. The Tribunal is of the view that if he had been attacked on a number of occasions between [dates in] August 2005 he would have said so in his visa application. His failure to do so raises concerns in relation to the credibility of these claims.
Third, in his visa application, the first named applicant claimed that he lived at [a Tongan city] when he was attacked and moved to [another location] after a while. He claimed that he still felt insecure because [Island 1] is a small place and they could easily find him. During the course of the hearing, he made new claims that he was attacked on a few occasions between 2005 and 2008 when he left Tonga to come to Australia. He then stated that he was chased and escaped lots of times. He stated that he did not report any of these incidents to the Police. He offered no explanation as to why he did not mention this in his visa application. The Tribunal is of the view that if he had been attacked on a number of occasions, or alternatively, chased and escaped lots of times, he would have said so in his visa application. His failure to do so raises concerns in relation to the credibility of these claims.
Fourth, in his visa application, the first named applicant claimed that, following the attack on him, he was badly injured and hospitalised for two weeks. He claimed that he expected the Police Department to do something about this attack but they did not do anything. He claimed that he was interviewed but no charges were laid against them. During the hearing, he gave inconsistent evidence. His stated that the Police attended the hospital, interviewed him and took a statement from him. He stated that he told the Police that he did not want them to be charged as he did not wish to exacerbate the problem.
Fifth, his conduct has not been consistent with his claims that he fears returning to Tonga because the drug dealers are still operating in Tonga and they will attack him again. He has filed with the Tribunal a copy of the Department’s Decision Record dated [in] November 2016. It indicates that he first came to Australia [in] June 2008 on a [temporary] visa for [an event] and departed Australia [in] July 2008. He did not make an application for a Protection visa at that time and voluntarily returned to Tonga. When the Tribunal raised this as an issue with him, he responded that he returned to Tonga because he had a multiple entry visa at that time. He stated that he returned to Tonga because he did not want to have a problem with his visa and knew that he could return. This explanation does not address the issue raised with him and the Tribunal does not accept it.
Sixth, in his visa application, the first named applicant claimed that he left Tonga [in] July 2008 to seek opportunities overseas that were safer for him. When he returned to Australia [in] July 2008, he was the holder of a [temporary] visa that was valid until [October] 2008. After his [temporary] visa expired [in] October 2008, he remained in Australia as an unlawful noncitizen until he was located [in] November 2010 and granted a Bridging [visa]. The Tribunal would expect that if he came to Australia [in] July 2008 to seek opportunities that were safer for him, he would have obtained some immigration advice, as soon as possible, and certainly prior to the expiry of his [temporary] visa and lodged an application for a Protection visa. By remaining in Australia as an unlawful noncitizen, he placed himself at risk of being deported to Tonga. His evidence to the Tribunal is that he first sought immigration advice in Australia in 2011. Even after obtaining immigration advice in 2011, he did not apply for a Protection visa at that time. His conduct has not been consistent with his claims and raises concerns in relation to the credibility of his claims.
When the Tribunal raised this as an issue with the first named applicant, he responded that he misunderstood what he was supposed to do. He stated that he thought that he could rely on an application for [the second temporary] visa. He then stated that he had financial problems at the time and did not know how to pay for a lawyer. He stated that no one gave him good advice or told him to approach the Department. The Tribunal pointed out that he had approached the Department many times [since] November 2010 and had been granted a number of Bridging visas but did not indicate that it was unsafe for him to return to Tonga. He responded that he was applying for a [second temporary] visa at that time and did not intend raising this issue. He stated that he thought he could get permanent residence in Australia through a [second temporary] visa and that is why he did not mention his fear of returning to Tonga.
The Tribunal does not accept this explanation. The first named applicant has filed with the Tribunal a copy of the Department’s Decision Record dated [in] November 2016. It indicates that he applied for [the second temporary] visas for himself and the second and third named applicants [in] March 2011. He was located as an unlawful noncitizen [in] November 2010. He was granted a number of Bridging visas thereafter. He did not apply for [the second temporary] visas until 4 months after he was located and 2 years and 9 months after he first arrived in Australia. His conduct has not been consistent with his claims.
Seventh, the first named applicant’s immigration history raises concerns in relation to his motivation for lodging an application for Protection visas. He came to Australia in 2008 as the holder of a [temporary] visa. After his [temporary] visa expired [in] October 2008 he remained in Australia as an unlawful noncitizen. He was located in the community [in] November 2010 and granted a Bridging visa. He applied for [the second temporary] visas [in] March 2011. When his application was refused he applied to the Migration Review Tribunal (as it was formerly known) for a review of that decision. When the Migration Review Tribunal affirmed the decision of the Department, he lodged a request for Ministerial intervention. That request was determined unsuccessfully [in] November 2015. He then applied for Protection visas [in] January 2016. This immigration history may lead the Tribunal to the conclusion that he applied for Protection visas to delay his stay in Australia and not because he is in need of protection.

When the Tribunal raised this as an issue, the first named applicant responded that he did not receive any advice. He then stated that no one advised him to apply for Protection visas. He stated that advice came to him that he could apply for protection because of what happened to him. He stated that he never had good advice.
The Tribunal asked the first named applicant what he thought would happen if he returned to Tonga. He responded that the drug dealers will still be after him. He stated that they were interested in him before and may even kill him. When the Tribunal noted that [this] happened a long time ago and questioned why they would now be interested in killing him, he responded “who knows?” He stated that they probably think he is returning from Australia and has something with him. When the Tribunal noted that if they wanted to kill him they would have done so [in] August 2005, he responded that it is an assumption. He stated that if they attacked him again and something went wrong he could get killed.
When the Tribunal raised as an issue the unlikeliness that the drug dealers would want to harm him now, the first named applicant responded that he cannot assume and predict. He stated that he does not think they will intentionally try to kill him but may want to harm him. He stated that they may attack him and accidently kill him. He stated that they may think he has returned from overseas and has goods and money and this may increase their hatred of him. He stated that he is not saying he cannot protect himself but does not want to live in an environment of conflict. He stated that previously it was just him but now he has a wife and children and he needs to protect them.
The second named applicant gave evidence that she never knew what happened to the first named applicant in Tonga.
The Tribunal has had regard to the documentary evidence provided by the first named applicant to the Department. The letter dated [in] November 2016 from [a] Hospital indicates in part the following: “[Applicant 1] was admitted to [the] Hospital [in] August 2005. According to his folder he was involved in a motor vehicle accident and he was diagnosed with [an] injury to his [body] and other [cuts]. He was admitted for 10 days in surgical ward. His x-rays shows [the injury]. He was discharged with physiotherapy follow up. But since then he had been seen in Outpatients several times with complaint of a recurrent [injuries] up to 2007.” (sic).
The letter dated [in] October 2016 from [the] Police Station [indicates] in part the following: “[Applicant 1] was an [employee] in [a government department]. [In] August 2015 evening he was attacked by two hot [criminals]. [Applicant 1] tried to escape in his car but he was chased by the attackers and caused him to involved in Traffic Accidents. They caught him and continued punching him. [Applicant 1] was rushed to [Hospital] and he was admitted for some days. Police interviewed [Applicant 1] and he was not agreed to continue the prosecution because he was afraid of his family if suspects planned something for them. Police suspected that the incident was caused by two hot criminals anger with [victim]. The two hot criminals have been involved in many different criminals including dealing with drugs. There was no charge in the incident according to [Applicant 1] intention and the both hot criminals suspects still around in Tonga.” (sic)
The letter from [the] Hospital makes no reference to the first named applicant being assaulted [in] August 2005 or having any injuries as a result of the assault. The Tribunal has some doubts in relation to the authenticity of the letter dated [in] October 2016 from [the] Police Station [in] view of the language used in that letter. However, the Tribunal is unable to make that finding with confidence and is therefore prepared to give the first named applicant the benefit of the doubt.
Findings
Having considered all the first named applicant's claims and all the evidence, the Tribunal finds that the first named applicant is not a witness of truth. The Tribunal is of the view that he has fabricated some of his claims and embellished others for the purpose of obtaining Protection visas.
The Tribunal accepts that the first named applicant was born [in date] [in] Tonga. The Tribunal accepts that he was employed as a [government employee] in Tonga from 1995 to 2005. The Tribunal accepts that he thereafter worked as [a different occupation]. The Tribunal accepts that he undertook [a] course between 2006 and 2007. The Tribunal accepts that, after coming to Australia in 2008, he worked as [another occupation] from 2008 to 2009 and in [a] factory thereafter. The Tribunal accepts that he has savings of approximately $[amount].
The Tribunal accepts that during the course of his [employment] he [had dealings with] drug dealers. The Tribunal accepts that [in] August 2005 he was assaulted by the two drug dealers and drove away in his car to get away from them. The Tribunal accepts that they followed him and, while attempting to get away from them, he had an accident and was injured. The Tribunal accepts that he was taken to [the] Hospital where he was admitted and treated for [an] injury to his [body], [and] cuts to his [body].
The Tribunal does not accept that the first named applicant was followed and attacked on a few occasions between the time he [dealt with] the two drug dealers and [in] August 2005. The Tribunal does not accept that after he had the car accident the drug dealers again assaulted him and [injured him]. The Tribunal does not accept that he was attacked on a few occasions between 2005 and 2008, or alternatively, that he was chased and escaped lots of times. The Tribunal does not accept that the Police were not willing or able to charge the drug dealers who assaulted him. The Tribunal accepts that the Police attended the hospital and took a statement from him. The Tribunal accepts that they did not lay charges against his assailants because he asked them not to as he did not wish to exacerbate the problem.
The Tribunal does not accept that the first named applicant came to Australia so that he could live somewhere that was safer for him. The Tribunal does not accept that he fears returning to Tonga because the two drug dealers are still operating in Tonga and he is afraid that they will attack him again. The Tribunal does not accept that they regard him as an enemy because he used to work for [a government department]. The Tribunal does not accept that his risk of harm is increased because he will be returning to Tonga with a wife and children.
The Tribunal is not satisfied that there is a real chance that the two drug dealers will threaten the first named applicant or harm him for money or property because he has returned from overseas. The Tribunal is not satisfied that he or his family will be at risk of serious harm or significant harm because they have returned from Australia and are perceived to be wealthy.
In view of the above findings, the Tribunal is not satisfied that there is a real chance that the first named applicant will suffer serious harm for any of the reasons claimed if he returns to Tonga now or in the reasonably foreseeable future.
Having considered all of the first named applicant's claims, individually and cumulatively, and all the evidence, the Tribunal finds that there is no real chance that he will suffer serious harm for any reason set out in s.5J(1)(a) of the Act if he returns to Tonga now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the first named applicant does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. Accordingly, the Tribunal finds that he does not satisfy the criterion in s.36(2)(a) of the Act.
Second named applicant
The second named applicant did not make any claims in her own right or on behalf of her children in her application for a Protection visa. During the hearing, she made claims for the first time. She offered no explanation as to why she had not made any claims in her visa application.
The second named applicant gave evidence that she never knew what happened to her husband in Tonga. She stated that she fears for her security and the security of her children if she returns to Tonga. When asked why, she responded that she does not see anything to secure their lives in Tonga. She stated that when she looks at the future for herself and her children, they will have a safer environment in Australia and better prospects for the future of her children in Australia.
The second named applicant gave evidence that she has a daughter who was fathered by a man [who] is an Australian citizen. She stated that they were not married. She stated that her daughter [was] born [in date]. She stated that her daughter has lived with her since birth and has no contact with her father. She stated that he does not pay any child support for her daughter. She stated that if she returns to Tonga she will have to take her daughter with her.
Findings
Having considered all the second named applicant's claims and all the evidence, the Tribunal finds that she is generally a credible person.
The Tribunal accepts that the second named applicant was born [in date] [in] Tonga. The Tribunal accepts that she and the first named applicant were married in Australia [in] December 2008. The Tribunal accepts that they have two children of their marriage who were born in Australia; [Applicant 3] and [Applicant 4]. The Tribunal accepts that they are the third and fourth named applicants respectively and are both citizens of Tonga.
The Tribunal accepts that the second named applicant is of the view that her life and the lives of her children may not be as secure in Tonga as they are in Australia. The Tribunal accepts that she would prefer to live in Australia with her husband and children. The Tribunal accepts that she is of the view that Australia will provide her and her family with a safer and better environment and that her children will have better prospects for their future if they remain in Australia.
The Tribunal has before it a copy of the bio data page of [the second named applicant’s daughter’s] Australian passport but does not have a copy of her Birth Certificate before it. In any event, she is not an applicant before the Tribunal and the Tribunal is unable to consider any claims made on her behalf.
In view of the findings above, the Tribunal is not satisfied that the second named applicant and/or her children are at risk of serious harm or significant harm for any of the reasons claimed by her or the first named applicant if they return/go to Tonga now or in the reasonably foreseeable future.
Having considered all of the second named applicant's claims, individually and cumulatively, and all the evidence, the Tribunal finds that there is no real chance that she will suffer serious harm for any reason set out in s.5J(1)(a) of the Act if she returns to Tonga now or in the reasonably foreseeable future. Therefore, the Tribunal finds that the second named applicant does not have a well-founded fear of persecution and is not a refugee as defined in s.5H of the Act. Accordingly, the Tribunal finds that she does not satisfy the criterion in s.36(2)(a) of the Act.
Does Australia have protection obligations to the applicants under the complementary protection criterion?
The Tribunal has considered the first and second named applicants’ claims under complementary protection.
First named applicant
In view of the above findings, the Tribunal is not satisfied that there is a real risk that the first named applicant will suffer significant harm for any of the reasons claimed if he returns to Tonga now or in the reasonably foreseeable future.
Having considered all of the first named applicant's claims, individually and cumulatively, and all the evidence the Tribunal is not satisfied that there is a real risk that the first named applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Tonga now or in the reasonably foreseeable future.
Accordingly, the Tribunal is not satisfied that that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the first named applicant being removed from Australia to Tonga, there is a real risk that he will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the first named applicant does not satisfy the criterion in s.36(2)(aa) of the Act.
Second named applicant
In view of the above findings, the Tribunal is not satisfied that there is a real risk that the second named applicant and/or her children will suffer significant harm for any of the reasons claimed by her or the first named applicant if she/they returns/go to Tonga now or in the reasonably foreseeable future.
Having considered all of the second named applicant's claims, individually and cumulatively, and all the evidence the Tribunal is not satisfied that there is a real risk that the second named applicant will be arbitrarily deprived of life, the death penalty will be carried out on her, she will be subjected to cruel or inhuman treatment or punishment or she will be subjected to degrading treatment or punishment if she returns to Tonga now or in the reasonably foreseeable future.
Accordingly, the Tribunal is not satisfied that that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the second named applicant being removed from Australia to Tonga, there is a real risk that she will suffer significant harm as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the second named applicant does not satisfy the criterion in s.36(2)(aa) of the Act.
During the course of the hearing, the first and second named applicants requested that the Tribunal refer this case to the Minister for Ministerial intervention. The Tribunal does not propose to do so and notes that there is nothing to prevent them from requesting Ministerial intervention.
CONCLUSION
The Tribunal finds that the first and second named applicants do not satisfy the criterion in s.36(2)(a) or s.36(2)(aa) of the Act.
There is no suggestion that the first named applicant or the second named applicant satisfy s.36(2) of the Act on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or s.36(2)(aa) of the Act and who holds a Protection visa. Accordingly, the first and second named applicants do not satisfy the criterion in s.36(2) of the Act.
As the first and second named applicants do not satisfy the criteria in s.36(2)(a) or (aa) of the Act and do not hold Protection visas, the third and fourth named applicants are unable to satisfy the criteria in s.36(2)(b) or (c) of the Act. Accordingly, the third and fourth named applicants do not satisfy the criterion in s.36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicants Protection visas.

Linda Symons
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.
…

[2017] AATA 2938

16 November 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Standing

Natural Justice