2007144 (Refugee)

2007144 (Refugee) [2020] AATA 2068 (29 May 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2007144
COUNTRY OF REFERENCE:                   Tonga
MEMBER:Roslyn Smidt
DATE:29 May 2020
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 29 May 2020 at 12:32 pm

CATCHWORDS
REFUGEE – protection visa – Tonga – particular social group – homosexual man – credibility concerns – vague and evasive responses – relationships with several women in Australia – delay in seeking protection – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5J, 36, 65
Migration Regulations 1994 (Cth), Schedule 2

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

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 Home Affairs on 6 April 2020 to refuse to grant the applicant a protection visa under s.65 of the Migration Act 1958 (the Act).
The applicant, who is a citizen of Tonga, applied for the visa on 19 March 2020. The delegate refused to grant the visa on the basis that she found his claims were not credible.
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 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.
BACKGROUND
The applicant is a [age] year old man from Tonga. His parents remain in Tonga. He has [a number of] siblings. Two reside in Australia. None remain in Tonga. He has two children. At the hearing he said that [one child], who was born in Tonga, now resides in [Country 1], while [the other child] was born in Australia and continues to reside here.
The applicant arrived in Australia on a visitor visa [in] November 2017. He remained in Australia after that visa expired. [In] September 2019 he convicted of [a criminal offence]. Following his release from prison he was detained at [an] Immigration Detention Centre.
CLAIMS AND EVIDENCE
Evidence provided to the Department
During interviews with Department officers prior to lodging his protection visa application, the applicant said that he had left Tonga because his life was in danger because someone wanted to kill him, but did not provide any additional information regarding these claims.
In his initial application for protection the applicant claimed that he was gay and that he would be at risk of harm if he returned to Tonga because of his sexuality. He said that he had been verbally and physically abused by people in Tonga because of his sexuality. He told his parents sometime in 2017 and they disowned him because this was at odds with their religion and with Tongan social values. He said that he had not been in contact with his parents since that time, but he was in contact with his brother.
During his interview with the delegate, the applicant said that he realised that he was gay when he was about 15 years old (in about [year]). After that he used to have same-sex relationships with tourists who visited Tonga.
The delegate noted that Department records indicated that he had travelled to Australia with his mother who had also provided funding for the trip. The applicant said that his family had funded his trip because they wanted to get rid of him. The delegate also noted that the applicant had posted photographs of his mother on his Facebook page, which was at odds with the claim that she had disowned him. The applicant responded that “family is family”.
There is no mention of children on the applicant’s primary application for protection, although they are mentioned in other documents. During his interview with the delegate, he stated several times that he had no children. When the delegate observed that he appeared to have two children, he said that he had forgotten and that he had not understood the questions. When asked about the relationships with the mothers of his children he said that they just happened.
The delegate found the applicant’s evidence unpersuasive and did not accept that he was gay and therefore did not accept that he was at risk of serious or harm on return to Tonga.
Evidence provided to the Tribunal
In his application for review, the applicant stated that the delegate’s decision was wrong, but he provided no further submissions or evidence. He provided a copy of the delegate’s decision.
At the hearing, the applicant confirmed that he had travelled to Australia with his mother in 2017 and that he spoke to his parents regularly. He also confirmed that he had two children, [one child] who lives in Australia and [another child] who was born in Tonga and now resides in [Country 1]. I asked why he had told the delegate that he had no children. He said that he had been angry because he was being asked so many questions.
I asked the applicant how long he had been in relationships with the mothers of his children. He initially said that he did not recall, but when pressed said the relationships lasted a few months. It appears that he lived with both women for some time, but it is not entirely clear.
I noted that the applicant had been charged with offences which involved behaving inappropriately towards someone and asked what his relationship had been with the person involved. He said that it was his ex-girlfriend. He said that she was not the mother of either of his children, but they had lived together before he was sent to prison.
I asked the applicant to tell me why he did not want to go back to Tonga. He said that life in Tonga was difficult and he would have more opportunities in Australia. He also said that he wanted to remain in Australia to be with his [child] and take care of [the child]. Finally, he said that people had bullied him in Tonga. I asked who had bullied him and why they had done so. He said he did not know.
I noted that the applicant had previously claimed that he could not return to Tonga because he was gay. He said that this was correct. I asked if he had been in any gay relationships in Australia. He said that he had not. I asked if he had been in any gay relationship prior to coming to Australia. He said that he had, but he could not remember who the men were or when he had been in these relationships.
I advised the applicant that I had difficulty accepting that he was gay. I observed that he appeared to have been in relationships with several women in Australia and that he had failed to mention that he was gay and feared harm on return to Tonga when I asked him to tell me about his fears. The applicant said that he had been bullied by people in Tonga who smashed him every day because of his sexuality. I asked how these people knew that he was gay. He said that they had seen him with people. I noted that he had previously said that he could not recall anything about when or with whom he had been in a gay relationship. He said that this was correct.
I asked the applicant if there was anything he would like to add. He said that he wanted to remain in Australia and look after his [child]. I observed that while this was understandable, it was not relevant to his protection visa application. I reminded him that protection visas were granted to people who were at risk of serious or significant harm on return to their country of origin and asked if he wished to add anything. He made no further comment.
FINDINGS OF FACT
For the following reasons, I did not find the applicant to be a truthful or a credible witness.
In the first place, at the hearing he seemed reluctant to engage with the process and I found his responses to many of my questions vague and sometimes evasive. For example, when asked about the length of time he spent in [Country 1] in 2015 he said that he was unable to recall even roughly the time involved. He responded in a similar fashion when asked about his relationships with the mothers of his children, While I acknowledge that difficulty recalling past events can be the result of stress or distress and that the fact that the hearing was conducted by video presented additional difficulties, these were not the only problems with the applicant’s evidence and after considering all of the evidence, I believe that his demeanour related to the fact that he was resentful about being questioned about his circumstances and to the fact that he was not providing an honest account of his situation and not to the stressful situation of attending a hearing.
Secondly, the applicant’s claim that he has been disowned and threatened by his family is at odds with his evidence at the hearing that he remains in regular contact with his mother.
Thirdly, I found the applicant’s evidence regarding his sexuality confused and unconvincing. In his submission to the Department, he claimed that he had identified as gay since he was about 15 years old, and that he had had sex with tourists from about that time. During the hearing he made no mention of his sexuality until I reminded him of this claim. He then said that he was gay, but he had not had any relationships with men since he arrived in Australia in 2017 and that while he had been in same-sex relationships before arriving in Australia, he could not recall when or with whom. He also confirmed that he had been in relationships with at least three women and fathered two children.
While I acknowledge that the fact that someone had been involved in heterosexual relationships does not mean that they have not also been involved in homosexual relationships or that they do not identify as gay, I find the fact that the applicant has not had any relationships with men while living in Australia and could provide no information about his claimed relationships with men in Tonga at the hearing a strong indication that he is not gay and has never been involved in sexual relationships with men.
Fourth and finally, as noted above, when asked at the hearing why he wanted to remain in Australia, the applicant spoke about his desire for a better life and his wish to remain near his [child], but said nothing about fearing return to Tonga because he would be threatened or harmed because of his sexuality. I find the applicant’s failure to mention that he feared harm on return to Tonga because of his sexuality until I reminded him of his earlier claims another strong indication that these claims are untrue.
After considering all of the relevant evidence, I do not accept that the applicant is gay or that he has ever been in a sexual relationship with another man, or that he was threatened or harmed by anyone in Tonga because of his sexuality, or that he genuinely fears that he would be harmed in Tonga because he is or is believed to be gay. I find that that these claims were concocted in order to support his application for protection so that he could remain in Australia.
DOES THE APPLICANT MEET THE REFUGEE CRITERION?
There is no credible evidence before me which suggests that the applicant faces a real chance of suffering serious harm amounting to persecution for any of the reasons set out in s.5J(1), now or in the reasonably foreseeable future. Therefore, I am not satisfied that he has a well-founded fear of persecution.
DOES THE APPLICANT MEET THE COMPLEMENTARY PROTECTION CRITERION?
There is no credible evidence before me which suggests that the applicant faces a real risk of suffering significant harm on return to Tonga. Therefore, I am not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Tonga, there is a real risk that he will suffer significant harm.
CONCLUSION
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy any of the criteria in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Roslyn Smidt
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.
…
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.
…

[2020] AATA 2068

29 May 2020

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Immigration

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