1704061 (Refugee)

1704061 (Refugee) [2022] AATA 794 (16 February 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1704061
COUNTRY OF REFERENCE:                   Tonga
MEMBER:Lilly Mojsin
DATE:16 February 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 16 February 2022 at 2.00 pm
CATCHWORDS
REFUGEE – Protection visa – Tonga –a membership of particular social group – employee in the health care sector – returnees from Australia – fears harm from her former colleagues – effective protection measures are available to the applicant –delay in lodging the visa application – lack of a subjective fear of harm – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 36, 65, 351, 425, 438, 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 and Border Protection on 15 February 2017 to refuse to grant the applicants protection visas [PV] under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of Tonga arrived in Australia on [date] January 2014 as the holders of visitor visas.
The 1^st applicant applied for a student visa [on] 7 March 2014. This visa was refused and affirmed by the former Migration Review Tribunal on 21 October 2014. A s.351 Ministerial Intervention application was made on 24 November 2014, and refused on 3 December 2015.
The 1^st applicant [applicant] with her husband, son and daughter applied for the visas on 23 December 2015. The delegate refused to grant the visas on the basis that the delegate was not satisfied the applicants would suffer serious or significant harm on their return to Tonga within a reasonably foreseeable future.
The applicants appealed that decision to this Tribunal, annexing a copy of the Department decision to the application for review.
On 1 September 2021 that applicant’s adviser wrote to the Tribunal advising that the applicants intended to waive their right to a hearing and have the case decided on the papers. A confirmatory letter from the 1^st applicant was attached.
The 1^st applicant provided the Tribunal with a number of medical reports indicating her inability to provide submissions at that time. The Tribunal granted an extension of time and on 10 December 2021 the applicants provided a submission to the Tribunal.
On 8 February 2022 the Tribunal wrote to the applicants requesting their advice as whether they also waived their right to a hearing. On 16 February 2022, the secondary applicants also waived their right to a hearing and requested a decision to be made on the papers.
I am satisfied that the applicants have consented to the Tribunal deciding the review without appearing before it, and I have proceeded to make a decision on the information before the Tribunal and not to offer the applicants a hearing.
In accordance with s. 425(2)(b) I proceed to decide this application on the material before me.
Criteria for a protection visa
See Annexure A
CONSIDERATION OF CLAIMS AND EVIDENCE
Only the 1^st applicant has made protection claims. In her PV application, the 1^st applicant claimed that she left Tonga to visit relatives in Australia, but mainly to escape threats and humiliation in her workplace. The applicant worked as a [Occupation 1] at [Hospital 1], Tonga. [In] December 2013, she was accused of nearly infecting [staff] at the hospital with HIV because she failed to inform them that one of her patients was infected with HIV. She was humiliated, cursed and threatened with physical violence at work on a daily basis. She said she suffered psychological harm.
If she returned to Tonga, she said she will suffer ongoing psychological harm and possible physical harm. She said she will not be able to get her job back at [Hospital 1] as she heard rumours that the [staff] there are still unhappy with what had happened. She said she will also be unable to obtain any work with any other health providers in Tonga [reasons deleted]. Tonga is a very small country and she will not be left alone or hide anywhere if forced to return to Tonga.
The applicant claimed that it took about 6 months for the [staff] to find out if they were HIV free and throughout this time, she suffered psychological problems due to daily verbal abuses and threats.
The applicant claims to have travelled to [Country 1] [in] December 2013 to visit relatives, arriving in Australia [in] January 2014.
A report, prepared by [Ms A], [dated] 19 December 2013 reported details of the HIV incident.
A letter dated 26 October 2016 by the applicants’ adviser states that the 1^st applicant fears persecution throughout Tonga for her a membership of particular social group, returnees from Australia and she fears she will be seriously physically abused, killed, subjected to extraordinary level of discrimination from her former colleagues at [Employer 1] that will threaten her ability to subsist.
A letter dated 11 November 2016 sent by the 1^st applicant to the Department confirmed that the incident at the hospital had taken place [In] December 2013, that she had obtained a visa with her children for a family reunion in [Country 1], and that after the incident at the hospital she knew she could no longer work there and as her husband was in Australia she decided to travel to Australia. She claims she was wrongly advised by a migration agent to apply for a student visa in order to study for a [degree]. She did not apply for protection in [Country 1] as her husband was already in Australia. She further stated that she understands that her claims do not meet the definition of a refugee but she believes she will suffer significant harm, if forced to return to Tonga.
A s.438 Certificate, dated 11 May 2018, stated that s 438(1)(b) of the Act 1958 applied to source information received in the Border Watch Allegations and Referral Team via web form on 20 December 2017 was given to the Department of Home Affairs (HA), in confidence. It further stated that the Tribunal’s use and disclosure of this information is subject to the provisions of s 438 (3) and (4) of the Act. The information reported anonymously that the 2^nd applicant worked illegally in Australia between 2015-2017.
A submission prepared by the applicant’s registered migration adviser, dated 10 December 2021, opines that the applicant lodged a Student Visa [application] on 7 March 2014. The applicant did not explore other visa options such as protection visa to remain in Australia as she was incorrectly advised by her migration agent who stated that the easiest option for her was to apply for a student visa. The applicant later found out that her migration agent was unregistered.
The adviser claims also that there are compelling, compassionate, unique and exceptional circumstances in this application. It is claimed that
§The applicant suffered harassment and discrimination while living and working in Tonga and due to the small size of Tonga, she is likely to experience harm if she ever returns. She could not safely relocate anywhere in Tonga given its small population and the small number of healthcare workers
§The incident involved a miscommunication at the hospital where a patient’s HIV status was not properly disclosed to the relevant doctors and nurses, and left them possibly exposed to the virus. The applicant was not at fault for the incident, but she was ultimately blamed for the failure in communication.
§No staff became ill with HIV following this incident, but it led to a number of staff turning on the applicant and they began to harass and bully her at work. This caused the applicant so much stress and anxiety that she became depressed and ended up quitting her job.
§Applicant suffered immensely a result of her status as a healthcare worker who was perceived to have violated the protocols of her profession. She has a well- founded fear of persecution owing to her status in this group, and there is a likelihood that she will suffer harm and discrimination if she ever returns to Tonga.
§Her family, as dependents, are likely to suffer similar harm as a result of being related to the applicant. The applicant would not be able to return safely or relocate due to the small size of the nation and small number of healthcare workers.
§Applicant singled out and bullied by employees of [Employer 1] and unable to return to Tonga for fear of reprisal.
§Applicant’s husband very anxious as a result of the applicant’s prior work situation and the family would face many barriers of discrimination if they ever return to Tonga.
§Applicant and her family have been living in Australia for seven years now, and they are settled and well-adjusted into life in Australia. The applicant’s children have been living in Australia for seven years, and they are settled and well-adjusted into life in Australia, both currently enrolled at Australian high schools, involved in school sports and their local church.
A submission from the applicant’s advisor and forwarding the following documents:
§Certified Copies of the applicants’ Passports
§Certified Copies of the applicants’ Birth Certificates, National ID Card
§Certified Copy of the 1^st applicant’s NSW Drivers Licence
§Certified Copy of the 1^st and 2^nd applicant’s Marriage Certificate
§Statutory Declarations of 1^st, 2^nd, 3^rd and 4^th applicants
§Statutory Declaration of [a named person]
§Letter of Support from [Ms A]
§Report from Clinical [Psychologist]
§Current Resume of the Applicant
§1^st applicant’s [qualification]
§1^st applicant’s [qualification] in Australia
§1^st applicant’s First Aid [Certificate]
§1^st applicant’s [qualification]
§1^st applicant’s [qualification] of the Applicant from Tonga
§1^st applicant’s [Course] Completion Certificate from Tonga
§applicant’s Letter from [Employer 1] – 2013
§applicant’s Letter of Recommendation from the [Employer 1] – 2013
§[Qualification] of the 2^nd applicant
§Letters of Support from Church – September 2021 and 2018
REASONS AND FINDINGS
On the basis of their Tongan passports, I accept that the applicants are nationals of Tonga and not nationals or citizens of any other country. I accept that they do not have a right to enter and reside in any country other than Tonga. Therefore, I find that the applicants are not excluded from Australia's protection by subsection 36(3) of the Act. I also find that Tonga is the applicants’ “receiving country” for the purposes of s.36(2)(aa).
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. Similarly, that the applicants claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicants to satisfy the Tribunal that all of the statutory elements are made out.
The 1^st applicant [applicant] requested that the Tribunal deal with her application without attending a hearing, seeking to rely on the documents provided to the Department and the Tribunal.
The applicant is an ethnic Tongan and a Christian, a Methodist. She makes no claims of harm for these reasons and none is suggested by the evidence before me. I accept that the applicant and her family, who have been in Australia now for 7 years, are well settled in Australia. They belong to [a] Tonga Parish and the 2^nd applicant, a [occupation] from Tonga, is [working in a role] while the applicant is [offering] services to the local community and church. I accept that their 2 children are heavily involved with youth programs and are happy and well settled in Australia. Both children are studying, doing well and the 3^rd applicant is involved in [sport]. I have read and accept the contents of letters of support provided to the Tribunal by [named individuals] who all attest to the applicants good character and background.
I accept that the 1^st applicant has skills as [an occupation] and worked in Tonga, initially as [the occupation], and prior to her departure in December 2013 as an [Occupation 1].
A s.438 Certificate, dated 11 May 2018, notified the Tribunal that s 438(1)(b) of the Act 1958 applies to source information received in the Border Watch Allegations and Referral Team via web form on 20 December 2017. The certificate stated that the information was given to the Department of Home Affairs, in confidence. It further stated that the Tribunal’s use and disclosure of this information is subject to the provisions of s 438 (3) and (4) of the Act. The Certificate was signed and dated by the delegate. Therefore, I am satisfied that the Certificate is valid. The information was from an unknown source stating that the 2^nd applicant has worked illegally in Australia from 2015-2017. As this information is not relevant to the PV application before me, I place no weight on this information, I disregard it.
The applicant claims that whilst living in Tonga and working at [Hospital 1] in Tonga, [in] December 2013 she was accused of nearly infecting [staff] at the hospital with HIV because she failed to inform them that one of her patients was infected with HIV [referred to herein as the HIV incident]. She was humiliated, cursed and threatened with physical violence at work on a daily basis after the incident. She said she suffered stress and psychological harm.
The applicant further claims, in her PVA, that it took about 6 months for the [staff] to find out if they were HIV free and throughout this time, she suffered psychological problems due to daily verbal abuse and threats. The applicant claimed to the Tribunal that the incident occurred [in] December 2013, she then travelled to [Country 1] [in] December 2013 to visit relatives. Therefore, she remained in Tonga for [a few] days before she left for a “family reunion” in [Country 1]. The applicant does not suggest that she stopped working immediately after the incident. I am satisfied the applicant remained at work for a maximum of [number] days after the incident occurred. Therefore, I do not accept that she was humiliated, cursed and threatened with physical violence at work on a daily basis, for about 6 months.
I accept, as plausible, that the applicant felt emotional, stressed and psychologically affected by being criticised after the HIV incident. A statement, by [Ms A], her supervisor, does not suggest that the applicant was held responsible for not advising the [staff] about a HIV patient, nor that she was dismissed or disciplined. Rather the 1^st applicant was criticised at a meeting at which the 1^st applicant was present. [Ms A] was also present at the meeting when the HIV incident was discussed with the 1^st applicant. [Ms A] stated that the surgeon performing the operation was vocal in showing her disappointment, especially pointing out to the 1^st applicant she did not inform them ahead of time. I accept that there was a robust discussion, as described by [Ms A], and I accept that the applicant was hurt by that meeting and was not at ease at work, lost her confidence and could not face the people involved. I accept that she felt uncomfortable.
Neither does the 1^st applicant suggest that she stopped working immediately after the incident nor that she immediately sought medical assistance, in Tonga, for PTSD or any other illness related to the incident and the subsequent post HIV incident meeting.
Further, whilst she claims that she became depressed and quit her job, [Ms A] ’s statement of 6 December 2021 stated that “[the applicant] mentioned to me that she wishes to go on holiday just to get away from Tonga and also to get way for the situation”. I accept that the 1^st applicant just wanted to get away and took a holiday, travelling to [Country 1] and Australia. The applicant did not want to attend a hearing. I accept as plausible that the 1^st applicant felt emotional, stressed and psychologically-effected by the HIV incident occurring, but without further information, I do not accept that ongoing aggression was levelled at her as a result of the HIV incident or that she was bullied or harassed at work or that she had fears for her safety, for a period of [number] days, whilst in Tonga. I do not accept that she was threatened with physical violence, harassed or bullied at work. I also do not accept that hurt feelings, or being emotional, stressed, psychologically affected, being uncomfortable or losing confidence amounts to serious harm.
I have considered whether the applicant belongs to any particular social group. I accept that the applicant belongs to a particular social group ‘AIDS [related occupations]’. I accept that she believes that she was wrongly held responsible for not informing the [staff] of a patient’s diagnosis. I accept that she was criticised in a meeting. I do not accept that she was perceived to have violated the protocols of her profession owing to her status in this group. I do not accept that she was criticised, threatened or harmed for her membership of that particular social group. I do not accept she was threatened or harmed but I accept she was criticised because of what was perceived that she had done, not informed the [staff] of a HIV infected patient and not for her membership of the particular social group ‘AIDS [related occupations].
The 1^st applicant’s evidence is that she travelled to [Country 1] after leaving Tonga. She did not apply for protection in [Country 1] as her husband was already in Australia. She came to Australia, applied for a student visa, appealed that decision to the former Migration Review Tribunal on 21 October 2014 and sought s.351 Ministerial Intervention that was refused on 3 December 2015. She applied for a PV on 23 December 2015. Her explanation for the delay in applying for a PV was that her migration adviser incorrectly advised the applicant and told her that the easiest option for her was to apply for a student visa. She later found out that her migration agent was unregistered. I do not accept as plausible that a person who is able to read and write English, living in Australia, would not be aware she was able to apply for PV. Her delay in applying for a PV in Australia indicates a lack of a subjective fear of harm. Her lack of applying for a PV in [Country 1] also indicates a lack of a subjective fear of harm.
I have considered the 1^st applicant’s claims singularly and cumulatively. I find that the 1^st applicant did not suffer harm in Tonga for a refugee reason ie, for reasons of her reasons of her race, religion, nationality, membership of a particular social group or political opinion. No specific claims of harm were made by the 2^nd, 3^rd and 4^th applicants. Therefore, I find that the applicants did not suffer harm in Tonga for any of the reasons enumerated in s.5J(1).
I am required to consider whether there is a real chance or a real risk the applicants will suffer serious or significant harm on their return to Tonga, within a reasonably foreseeable future.
The Tongan archipelago has 36 islands which are inhabited with a total population of approximately 106,000. I accept that it is a small island with a small population.
The Kingdom of Tonga is a constitutional monarchy[1]. The Legislative Assembly, a parliamentary body consisting of 17 popularly elected members and nine nobles selected by their peers, elects the prime minister. Following the November 2017 election, which international observers characterized as generally free and fair, Prime Minister Samuela ‘Akilisi Pohiva was returned to office for a second term. The Tonga Police Force maintains internal security and reports to the Ministry of Police and Fire Services. Civilian authorities maintained effective control over the security forces.
[1] 2019 Country Reports on Human Rights Practices: Tonga

The constitution prohibits arbitrary arrest and detention and provides for the right of any person to challenge the lawfulness of his or her arrest or detention in court, and the government generally observed these requirements. The constitution provides for the right to a fair and public trial, and an independent judiciary generally enforced this right. Although unavailability of judges, witnesses, or lawyers could delay cases, legal authorities processed most cases without undue delay.
Tongan law provides criminal penalties for corruption by officials, and the government generally implemented the law effectively[2]. Domestic and international human rights groups generally operated without government restriction, investigating and publishing their findings on human rights cases. Government officials often were cooperative and responsive to their views. The Office of the Ombudsman oversees the rights of every citizen in the country, including members of the public service and vulnerable members of society.
[2]
I am satisfied that Tonga has effective judicial and law enforcement agencies, is governed by the rule of law and has an infrastructure of laws designed to protect its nationals against harm.
The 1^st applicant claims that she will suffer ongoing psychological harm and possible physical harm on her return and an extraordinary level of discrimination from her former colleagues at [Employer 1] that will threaten her ability to subsist. She will not be able to get her job back at [Hospital 1] as she heard rumours that the [staff] there are still unhappy with what had happened. As stated above, I do not accept that ongoing aggression was levelled at her as a result of the incident after an initial meeting regarding the HIV incident where she was criticised. The 1^st applicant did not suffer any physical harm in Tonga. I reject her claim she will suffer physical harm on her return to Tonga. I therefore find remote the chance or the risk the 1^st applicant will suffer physical harm that amounts to serious or significant harm on her return to Tonga within a reasonably foreseeable future.
The applicant has provided a psychologist’s report [for] a consultation with the 1^st applicant in December 2018. [The psychologist] is not the 1^st applicant’s treating psychologist. The report assesses the 1^st applicant as having Post Traumatic Stress Disorder [PTSD]. It does not suggest that the 1^st applicant has been receiving treatment since December 2013. The report opines that the applicant be referred to a Clinical Psychologist for the treatment of PTSD, Anxiety and Depression and to consult her General Practitioner about the use of anti- depressant medications. No evidence of a current diagnosis has been provided by the 1^st applicant since attending a consultation with [the psychologist].
[The psychologist] made findings in his report, about whether or not the 1^st applicant suffered harassment and bullying in the workplace and whether or not the 1^st applicant would be targeted on her return to Tonga by [Employer 1]. [The psychologist] does not provide any information about his competency to make findings about whether the 1^st applicant had suffered bullying and harassment in the workplace in Tonga or about proper management practices in Tongan hospitals or that [Employer 1] would target and blacklist the applicant. I am of the view that a clinical psychologist is unable to be in a position to provide an objective or an evidence-based opinion on such matters. Therefore, I place no weight on this report. As I place no weight on the psychologist’s report, I do not accept that the 1^st applicant suffers from PTSD immediately after being accused of omitting to provide information about a HIV patient or that she has subsequently developed PTSD, anxiety and depression and continues to suffer PTSD, anxiety and depression.
I do not accept that the applicant suffered or continues to suffer from any psychological illness. I therefore find remote the chance or the risk the 1^st applicant will suffer serious or significant harm on her return to Tonga within a reasonably foreseeable future for her psychological condition.
I note that in Tonga in 2020 the unemployment rate was 4.37%[3]. I have no evidence before me to suggest that there is discrimination in the job market in Tonga for a refugee reason. I am not satisfied that an inability by the applicant to find a job would be for reasons of her race, religion, nationality, members of a particular social group or political opinion. Therefore, I find remote the chance that the applicant will be unable to obtain employment for a refugee reason in Tonga.
[3]
The 1^st applicant resigned in 2014 from her job whilst in Australia. I accept that the 1^st applicant fears not being able to obtain a job in Tonga on her return. She claims she has heard rumours that that the [staff] are still unhappy with what happened. She has not provided any details of how she heard those rumours. I place no weight on this claim. Further, I have no evidence before me to suggest that the applicant has made any enquiries about getting her job back and has been rejected.
The 1^st applicant said she will be unable to obtain any work with any other health providers in [Tonga]. Tonga is a very small country and she will not be left alone or able to hide anywhere if forced to return to Tonga. I accept that Tonga is a small country. I accept that there are a small number of health workers. But as I do not accept that the 1^st applicant suffered ongoing aggression and/or harm from senior [officials] I do not accept that merely because [reasons deleted], that the applicant will be unable to obtain any work with any other health providers.
I have considered a reference from [name deleted], dated 6 December 2013, the then [government official], states that he worked with the 1^st applicant when she was an [Occupation 1] and highly recommends her for employment. As this reference was given prior to the incident in the hospital I place little weight on this reference. Another reference from [another person] dated 17 December 2013 also highly recommends the 1^st applicant. In light of this references, given post the incident, I find remote the chance or the risk that the applicant will be unable to obtain employment in the health care sector within a reasonably foreseeable future in Tonga.
The applicant claims to fear harm for her a membership of particular social group, returnees from Australia. Accepting that returnees from Australia are a particular social group, I have no independent evidence before me to suggest that returnees from Australia suffer serious or significant harm for their membership of that particular social group. Therefore, I find remote the chance or the risk the applicants will suffer serious or significant harm for their membership of a particular social group, returnees from Australia, within a reasonably foreseeable future on return to Tonga.
The 2^nd, 3^rd and 4^th applicants made no separate claims of fear of harm regarding returning to Tonga other than they are likely to suffer similar harm as a result of being related to the applicant and because of the 1^st applicant’s prior work situation, the family would face many barriers of discrimination if they ever return to Tonga. As I have rejected the 1^st applicant’s claims of harm and discrimination, I do not accept that her family will suffer harm and discrimination in Tonga on their return.
I have considered the applicants’ claims singularly and cumulatively. I find that the applicants do not have a real chance that, if returned to Tonga, they would suffer persecution for reasons of their race, religion, nationality, membership of a particular social group or political opinion. I find that the applicants do not have a well-founded fear of persecution for these reasons.
Accordingly, I find that the applicants do not satisfy the requirements of s.36(2)(a) of the Act.
I am required to consider if the applicants, ethnic Christian Tongans will suffer significant harm on their return to Tonga.
'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.
I am satisfied the applicants, ethnic Christian Tongans, will not suffer or be subjected to torture or cruel or inhuman treatment or punishment, or degrading treatment or punishment. There is no reliable evidence to suggest the applicants will be arbitrarily deprived of life, or that the death penalty will be carried out if they return to Tonga in the reasonably foreseeable future.
'Cruel or inhuman treatment or punishment' for the purposes of s.36(2A)(d) is exhaustively defined in s.5(1) of the Act to mean an act or omission by which severe pain or suffering, whether physical or mental, is inflicted on a person, or pain or suffering, whether physical or mental, is 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. The pain or suffering must be intentionally inflicted. However, 'cruel or inhuman treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR ), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR . Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
Degrading treatment or punishment is exhaustively defined in s.5(1) of the Act to mean an act or omission which causes, and is intended to cause, extreme humiliation which is unreasonable. However, 'degrading treatment or punishment' does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR ), nor one that causes, and is intended cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR . Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment.
I accept that, if the applicants are removed from Australia to Tonga, the 1^st applicant fears uncertainty about finding work. For the reasons stated above, I do not accepted the 1^st applicant has a psychological or psychiatric condition. I am not satisfied that the 1^st applicant's uncertainty about finding work, amounts to severe pain or suffering, or pain or suffering that could reasonably be regarded as cruel or inhuman in nature, or amounts to extreme humiliation which is unreasonable.
Therefore, having considered the applicants' circumstances singularly and cumulatively, I do not accept on the evidence before me, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicants being removed from Australia to Tonga, there is a real risk that they will be arbitrarily deprived of life, that the death penalty will be carried out on them, that they will be subjected to torture, that they will be subjected to cruel or inhuman treatment or punishment or that they will be subjected to degrading treatment or punishment.
Accordingly, I find that the applicants do not satisfy the requirements of s.36(2)(aa) of the Act.
CONCLUSIONS
Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicants satisfy s.36(2) on the basis of being members of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicants do not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicants a Protection visa.
Lilly Mojsin
Member

ANNEXURE A
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 themselves 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.84, made under s.499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and 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.
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.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
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 the 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.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) 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 non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(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.
…

[2022] AATA 794

16 February 2022

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Immigration

Administrative Law

Statutory Interpretation

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Procedural Fairness

Statutory Construction

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Natural Justice