2304718 (Refugee)
[2024] AATA 4151
•6 September 2024
2304718 (Refugee) [2024] AATA 4151 (6 September 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2304718
COUNTRY OF REFERENCE: Tonga
MEMBER:Wayne Pennell
DATE:6 September 2024
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 06 September 2024 at 12:39pm
CATCHWORDS
REFUGEE – Protection Visa – Tonga – fears harm from a loan shark – economic reasons – to earn money to pay off his bank loan – spend time with a child he claims to have adopted – no evidence presented to the Tribunal – applicant does not have a well-founded fear of persecution – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 46, 65, 424, 499
Migration Regulations 1994, Schedule 2
CASES
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379
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 a review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) to refuse to grant the applicant a Protection visa under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]
[1]The delegate’s decision of 30 March 2023.
The applicant, who is a citizen of Tonga, applied for a Protection visa.[2] The delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to Tonga, there was a real risk he would suffer significant harm, and his application was refused on the basis that he was not a refugee as defined by the Act[3] and therefore he was not a person in respect of whom Australia has protection obligations.[4]
[2]The Department of Home Affairs received the applicant’s application on 12 May 2022.
[3]Migration Act 1958 (Cth), s 5H.
[4]Migration Act 1958 (Cth), s 36(2)(a), s 36(2)(aa).
The applicant filed an application (‘review application’) with the Tribunal to review the delegate’s decision.[5] Subsequently, on 15 August 2024 the Tribunal dispatched to the applicant a letter advising him that the Tribunal had considered all the material before it but was unable to make a favourable decision on that information alone. He was invited to attend a hearing in regard to his review application scheduled for 4 September 2024. Also included with the hearing invitation was a ‘Response to hearing invitation’ template (‘template’) and he was asked to return the completed template to the Tribunal within seven days. The applicant was also asked to provide to the Tribunal all documents he intended to rely upon to support his application by 1 September 2024.
[5]The Tribunal received the applicant’s review application on 3 April 2023.
On 16 August 2024, the applicant returned to the Tribunal the completed template in which he indicated that he would be attending the hearing in person. He also indicated that he would not be relying on any witnesses, and nor did he intend to rely upon any documents such as written witness statements, written submissions, country information or other evidence.
He was not represented throughout the review process and was assisted during the hearing by an interpreter in the Tongan and English languages.
CRITERIA FOR A PROTECTION VISA
The measures for a Protection visa are set out in the Act[6] and Schedule 2 to the Migration Regulations1994 (Cth). An applicant for the visa must meet one of the alternative criteria as provided in the Act.[7] That is, the applicant is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a Protection visa of the same class.
[6]Migration Act 1958 (Cth), s 36.
[7]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).
The Act 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, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[8]
[8]Migration Act1958 (Cth), s 36(2)(a).
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.[9] 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.[10]
[9]Migration Act1958 (Cth), s 5H(1)(a).
[10]Migration Act1958 (Cth), s 5H(1)(b).
The Act also provides that 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.[11] 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 the Act, which are extracted in the attachment to this decision.[12]
[11]Migration Act 1958 (Cth), s 5J(1).
[12]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.
If a person is found not to meet the refugee criterion in the Act,[13] that person may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (‘the complementary protection criterion’).[14] 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 expressly provided in the Act, which are extracted in the attachment to this decision.[15]
[13]Migration Act 1958 (Cth), s 36(2)(a).
[14]Migration Act 1958 (Cth), s 36(2)(aa).
[15]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).
The Act makes provision for and clearly defines that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[16]
[16]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).
Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[17]
[17]Migration Act 1958 (Cth), s 36(2B).
COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY
The applicant claims to be a citizen of Tonga and provided a copy of his passport to the Department to authenticate this claim. The Tribunal accepts his identity and based on the evidence he provided, and in the absence of any other evidence to the contrary, the Tribunal finds that Tonga is his country of nationality and his receiving country for the purposes of the refugee and complementary protection assessments.[18]
[18]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).
Based on the evidence, the Tribunal is satisfied the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that he is not excluded from Australia’s protection obligations.[19]
[19]Migration Act 1958 (Cth), s 36(3).
MANDATORY CONSIDERATIONS
In accordance with Ministerial Direction No.84 made under the Act,[20] the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and the 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.
[20]Migration Act 1958 (Cth), s 499.
MATTERS LEADING UP TO THE REVIEW HEARING
The applicant’s migration records held within the Department’s file shows that between 2010 2021 he made three trips to Australia. The visas he was granted and those trips are:
27 April 2010
Granted (offshore) a Foreign Affairs or Defence Sector (subclass 576) visa, valid until 10 August 2010.
[Date] May 2010
Arrived in Australia for the first time.
[Date] June 2010
Departed Australia and returned to Tonga.
2 June 2015
Granted (offshore) a Foreign Affairs or Defence Sector (subclass 576) visa, valid until 1 September 2015.
[Date] July 2015
Arrived in Australia for the second time.
[Date] August 2015
Departed Australia and returned to Tonga.
22 February 2021
Granted (offshore) a Temporary Work (International Relations) (subclass 403) visa, valid until 25 November 2021.
[Date]February 2021
Arrived in Australia for the third time.
25 November 2021
The Temporary Work visa granted on 22 February 2021 ceased.
12 May 2022
Lodged an application for a Protection visa.
26 July 2022
Granted a Bridging visa C (subclass 030) visa.
13 March 2024
Bridging visa C granted to the applicant on 26 July 2022 was cancelled pursuant to section 501 of the Act.
Within the applicant’s application for a Protection visa, he claimed that he borrowed money from a loan shark. When he was unable to make sufficient repayments towards that debt, he was physically abused by the loan shark, he was harassed at work and his family was threatened. Because he was scared of the loan shark he did not report this to the authorities and he fears that if he returns to Tonga without repaying the loan, he will be threatened and harmed by the loan shark.
Extracted from his application and inserted below are the specific claims he made:
Provide reasons why this applicant left that country or those countries: I HAVE READ THE ADVERTISEMENT IN THE [social media] THAT OFFER AN OPPORTUNITIES TO WORK OUTSIDE TONGA BY A WORK AGENCY IN TONGA. I FEEL THAT THIS IS THE OPPORTUNITIES AND GOOD CHANCE FOR ME TO CHANGE MY LIFE AS WELL AS MY FAMILY. MY PARENTS DO NOT HAVE ANY FIXED INCOME AND I HAVE TO FIND WAYS TO SUPPORT THEM AND MYSELF. I ACCEPT THE OFFER AND I PAY CERTAIN AMOUNT FOR THE ARRANGEMENT AND MADE SOME LOAN TO PAY THE FOR THE AGENCY. I USED MY SAVINGS AND MADE SOME LOAN WITH THE UNLICENSE MONEY LENDER JUST TO DO DOCUMENTS PREPARATIONS FOR ME TO COME TO AUSTRALIA AND TO SETTLE SOME OF MY FAMILY MONTHLY COMMITMENTS DUE MY PARENTS GETTING OLD AND UNABLE TO WORK. UNFORTUNATELY, I COME TO KNOW THAT I GOT CHEATED WITH ALL THE PROMISE WHICH THEY MADE ARE BOGUS AND FAKE.
I GOT INTO BIG TROUBLE WHEN THE LOAN SHARK FORCE ME TO SETTLE OFF THE LOAN WHICH WAS THE INTEREST IS VERY HIGH. THEY COME TO MY HOUSE IN TONGA AND THREATENED MY FAMILY. I TOLD TO THE LOAN SHARK THAT I CAN'T AFFORD TO PAY FULL SETTLEMENT WITH HIGH INTEREST BUT THE LOAN SHARK REFUSE AND STARTED TO BLACKMAILED ME AND ASK ME TO PAY BACK ON THE DATE GIVEN. THE LOAN SHARK MEMBERS ALSO WENT TO MY WORK PLACE SEARCHING FOR ME, AND I AFFRAID THAT IT WOULD EFFECT OUR SAFETY AND SUFFER SIGNIFICANT HARM IF WE STAY IN TONGA
Did this applicant experience harm in that country or those countries? Yes Give details including:
• the type of harm this applicant experienced
• the person/people responsible for the harm• why they harmed this applicant.
THOSE LOAN SHARK MEMBERS HIT AND DEGRADING USING BAD WORDS TO ME INFRONT OF PUBLIC. THEY THREAT AND MADE PHYSICAL HARRASMENT. THEY FORCE ME TO PAY OFF THE LOAN EVERY TIME WHEN WE MET.THEY EVEN WENT TO MY WORKPLACE AND MADE DISRUPTION AND NUISANCE. THEY HARMED TO PAY BACK THE MONEY ON THE DATE THEY GIVEN. Did this applicant seek help within the country or those countries after the harm? No Give details of why this applicant did not try to seek help. I DID NOT TRY TO SEEK HELP FROM THE AUTHORITY BECAUSE I AM SCARED IF THE LOAN SHARK MEMBERS GAVE WARNING THAT THEY WILL MAKE MORE TROUBLE AND WILL TAKE INHUMAN TREATMENT. Did this applicant move, or try to move, to another part of that country or those countries to seek safety? No
Give details for why this applicant did not try to move to another part of the country or those countries. NO BECAUSE THOSE LOAN SHARK MEMBERS AND NETWORKING ARE ENTIRE TONGA. I AM AFFRAID THAT IF I MOVE TO ANOTHER PLACE, THE LOAN SHARK MEMBERS WILL MAKE MORE TROUBLE TO ME AND MY FAMILY Explain what the applicant thinks will happen to them if they return to that country or those countries: IF I RETURNED TO TONGA BEFORE I SETTLE THE LOAN I FEEL THAT I WILL BE HARMED AND WILL SUFFERING MORE SERIOUS HARM. Does this applicant think they will be harmed or mistreated if they return to that country or countries? Yes Give details including:
• the type of harm or mistreatment this applicant is likely to experience
• the person/people who would be responsible for the harm or mistreatment• why they would harm or mistreat this applicant.
THOSE LOAN SHARK MEMBERS WILL HIT AND DEGRADING USING BAD WORDS TO ME INFRONT OF PUBLIC. THEY THREAT AND MADE PHYSICAL HARRASMENT.THEY FORCE ME TO PAY OFF THE LOAN EVERY TIME WHEN WE MET.THEY EVEN WENT TO MY WORKSHOP WHERE I AM DOING MY JOB AND MADE DISRUPTION AND NUISANCE. Does this applicant think the authorities of that country or those countries can and will protect this applicant if they go back? No Give details about why this applicant thinks the authorities could not, or would not, protect them. THE AUTHORITY CANNOT MAKE ANY PROTECTION AGAINST ME BECAUSE I DID NOT MAKE ANY OFFICIAL REPORT Does this applicant think the y would be able to relocate within that country all those countries to an area where they would not be harmed? No Give details about why
this applicant is unable to relocate.THE LOAN SHARK AND THEIR MEMBERS ARE ENTIRE TONGA. I FEEL NOT SAFE AT THE MOMENT IF I STAY IN TONGA
When he lodged his application, the applicant did not provide a statement of claim, a statutory declaration or any other document or evidence to support the claims he relies upon.
On 26 July 2022, the Department wrote to him (letter sent by email) and acknowledged receiving his application. Within that letter, it was explained that as his application had outlined, all claims, supporting documentation and evidence should have been provided when he lodged his application.
However, because he was being invited to attend an appointment with the Department on 3 August 2022 to provide his personal particulars, there was an opportunity for him when he attended the appointment to provide the Department with evidence, information or material which he relied upon. He attended the appointment, however he did not provide any supporting documentation, information or evidence.
Subsequently, the Department undertook an assessment of his application and the claims he made, and on 30 March 2023 he was advised that his application had been refused. In reaching that decision, the delegate was not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant been removed to Tonga, there was a real risk that he would suffer serious harm as defined in the Act. Consideration was given to the alternative criterion of complementary protection and the delegate was not satisfied that the applicant would suffer significant harm should he return to Tonga. The applicant was advised of that decision by email and a copy of the delegate’s Decision Record was provided to him.
On 3 April 2023, he lodged a review application with the Tribunal to review that decision. He also provided the Tribunal with a copy of the Decision Record and a copy of the Department’s notification letter. Upon receiving his review application, the Tribunal wrote to him and acknowledged receiving that application and advised that if he wished to provide material or written arguments for the Tribunal to consider, then he should do so as soon as possible. He has never provided any evidence, documentation or information to the Tribunal to support his application.
REVIEW HEARING
Applicant’s background, evidence and claims
Although his application suggests that he was never married, the applicant told the Tribunal that he married his wife in 2010 and they have four daughters. His wife and children live in Tonga. He attended school in Tonga and graduated from [a grade]. He then went to college and [studied].
In 2007 he joined the Tongan Army. He remained with the army until discharging in 2016. During his military service he did one tour [in] 2012. He left the Army because his wages were not enough to support his family. He then found work with a [company] and he remained working with that company until the day before his last trip to Australia.
In regard to the applicant’s migration history held by the Department, subject to the provisions of section 424AA of the Act, it was carefully outlined to him that the Tribunal was in possession of his migration history which the Tribunal considered would be the reason, or part of the reason for affirming the decision under review. As far as it was reasonably practical, the Tribunal made sure that he understood why the information was relevant to the review, and made sure he understood the consequences of the Tribunal relying upon that information in affirming the decision. He was then invited to comment on and/or respond to the information and he was told that he may seek additional time to make his comments or response. It was explained to him that if he did require additional time, the Tribunal would adjourn the review hearing if it was considered that he reasonably needed that additional time to make the comment or respond.
The relevance of his migration history is that he arrived in Australia for the third time on [date] February 2021 subject to the provisions of a work visa. That visa expired on [date] November 2021 and he did not depart Australia at that time. On 12 May 2022, the applicant lodged his application for a Protection Visa. This was approximately six months after his work visa had expired.
When asked why it took so long for him to make his application after his arrival in Australia, he said that when his visa expired he was looking for someone to help him apply for a Bridging C visa. He could not find anyone to help him make the application and he was thinking of permanently staying here in Australia because he wanted to earn some money to send back to his family in Tonga.
One of his work colleagues put him in touch with a [person] in Perth, who he described as a ‘sort of agent’. This person helped him make his application. The only contact the applicant and the agent had with each other was through the phone. When asked by the Tribunal whether he had read his application before it was lodged with the Department, he acknowledged that he had not read the application. It was the agent who typed it and lodged it with the Department. He confirmed that because he had never read the application, he did not know anything about the protection claims in that application.
He explained that the reason why he wanted to stay in Australia was because he has an adopted son in Australia. The mother of that child is from [Country 1] and she lives in Australia and has a work visa. The applicant is not in any type of relationship with her, and he is not the child’s biological father.
In regards to his claims for protection, he was asked whether he owed anyone money in Australia or in Tonga. He said that he still pays his instalments for a loan he got from [a] Bank. After his father passed away in 2012, he got the loan from the bank. He agreed that when he got this loan, it was a well before the last time he came to Australia and the loan had nothing to do with him leaving Tonga.
When asked by the Tribunal whether he had ever borrowed any money from a private unlicensed money lender in Tonga, his said that he had never borrowed money from anyone else other than the [Bank].
He went on to explain to the Tribunal that his main concern about returning to Tonga is that he would be unable to repay the loan to the [Bank] and his land and house would be confiscated by the bank. He said that he needed to work in Australia to earn money so that he could pay off the bank loan. He also said that he needed to stay in Australia to be with his adopted son and he disclosed that although he was not in any type of relationship with the child’s mother, he was aware that she has overstayed her work visa and was trying to get a Bridging visa to stay in Australia.
REFUGEE FINDINGS, DISCUSSION AND CONCLUSIONS
The very nature of a review hearing before the Tribunal is that the hearing is conducted from the beginning (anew) and the Tribunal is to review the material, information and evidence made available to it. The Tribunal is to consider all of that material, information and evidence afresh and make its own assessment and determination as to whether the applicant meets the criteria for the granting of a Protection visa. The Tribunal is not bound by technicalities, legal forms or rules of evidence; and must act according to substantial justice and the merits of the case.[21]
[21]Migration Act 1958 (Cth), s 420.
Although the very nature of a review hearing is inquisitorial, and the Tribunal can seek out evidence it requires in order to reach a determination, there is no obligation for the Tribunal to seek out evidence to support the applicant’s claims, even though the Tribunal is entitled to do so.[22]
[22]Migration Act 1958 (Cth), s 5AAA; ABT16 v Minister for Home Affairs [2019] FCA 836, [28].
The Tribunal is not required to make the applicant’s case for him. It is his responsibility to specify all particulars of his claims to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish his claims. There is no obligation or responsibility that lies with the Tribunal to specify, or assist in specifying any particulars of his claims, or to establish or assist in establishing his claims.[23] Nor is the Tribunal required to accept uncritically any and all of the allegations made by the applicant.[24]
[23]Migration Act 1958 (Cth), s 5AAA.
[24]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.
The mere fact that the applicant claims he has a fear of persecution for a particular reason does not establish either the genuineness of his asserted fear or that it is well-founded or that it is for the reason claimed. Similarly, because he claims that he will 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 applicant to satisfy the Tribunal that all the statutory elements are made out.
The definition of a refugee as provided within section 5H(1) of the Act explains that a refugee is a person who is outside their country of nationality or former habitual residence and is unable or unwilling to avail themselves of the protection of their country of nationality or to return to their country of former habitual residence due to a well-founded fear of persecution. The term ‘well-founded fear of persecution’ is defined in section 5J of the Act, and includes a requirement in section 5J(1)(a) of the Act that the person fears being persecuted for reasons of their race, religion, nationality, membership of a particular social group or political opinion.
The issue in this matter is whether there are substantial grounds for believing that, as a foreseeable consequence of the applicant being removed to Tonga, there exists a real risk that he will suffer significant harm or there is a real chance he would suffer serious harm on the grounds of him borrowing money from a loan shark and because he has been unable to make sufficient repayments towards his debt. He claimed that he was scared of the loan shark and fears that if he returns to Tonga without repaying the loan, he will be threatened and harmed.
It has already been outlined in these Reasons that the applicant had engaged someone else to make the application for him, and he (the applicnt) had not read the application before it was lodged and he did not know what the claims in that application were. He does not have a debt to a private unlicensed moneylender (loan shark) in Tonga, and therefore the Tribunal is satisfied (and so finds) that there is no credibility attached to those claims which have been made. More so, his claims relate to economic reasons to earn money to pay off his bank loan, as well as a desire to remain in Australia to spend time with a child he claims to have adopted.
When a careful assessment is undertaken of the claims and the evidence in this matter, the Tribunal is satisfied that the economic claim and the claim relating to the child do not fall within the ambit of the criterion as expressed in section 5J(1)(a) of the Act. That is, he does not have a well-founded fear of returning to Tonga because of his race, religion, nationality, membership of a particular social group or political opinion and the Tribunal is satisfied that he does not have a well-founded fear of being persecuted because of those reasons just mentioned.
Hence, after carefully considering all of the material available, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution as he does not fear that if he returns to Tonga he will be persecuted for reasons prescribed in section 5J(1)(a) of the Act. Furthermore, the Tribunal is not satisfied that he is a refugee as defined in section 5H(1) of the Act and accordingly, the Tribunal finds that he is not a person in respect of whom Australia has protection obligations as provided for in section 36(2)(a) of the Act.
COMPLEMENTARY PROTECTION CONSIDERATIONS
Having already concluded that the applicant does not meet the refugee criterion as provided by the Act,[25] the Tribunal has carefully considered the alternative criterion.[26] In considering the alternative criterion, an assessment was undertaken as to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to Tonga, there is a real risk that he will suffer significant harm as it is defined in the Act.[27]
[25]Migration Act 1958 (Cth), s 36(2)(a).
[26]Migration Act 1958 (Cth), s 36(2)(aa).
[27]Migration Act 1958 (Cth), s 36(2A).
As it relates to the applicant, significant harm is defined within section 36(2A) of the Act to mean that he will be arbitrarily deprived of his life; or the death penalty will be carried out on him; or he will be subjected to torture; or he will be subjected to cruel or inhuman treatment or punishment; or he will be subjected to degrading treatment or punishment.
The Tribunal’s observations of the real risk associated with the claims in his application which would cause him to suffer significant harm involve him being unable to make sufficient repayments towards a loan he got from a loan shark, and he was physically abused by the loan shark, he was harassed at work and his family was threatened. He claimed in his application that he had a well-founded fear that if he returns to Tonga without repaying the loan, he will be threatened and harmed by the loan shark.
Section 36(2)(aa) of the Act provides that the relevant risk threshold in assessing complementary protection is that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia, there is a real risk that he will suffer significant harm if returned to Tonga. The courts have adopted the principle that the test for ‘real risk’ imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[28]
[28]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
Real chance was also discussed in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and the High Court said the expression ‘a real chance’ clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring.[29] The question of ‘real chance’ is the test to be applied on an application for a Protection visa under the Act when considering whether the applicant has a well-founded fear that they will face persecution for a Convention reason if returned to their country of nationality.[30] A person’s fear of persecution must be well-founded on the basis that there is a real chance that they will be persecuted if they return to their country of nationality. A real chance is one that is not remote, regardless of whether it is less or more than 50 per cent.[31]
[29]Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 citing Boughey v The Queen (1986) 161 CLR 10, 21.
[30]Migration Act 1958 (Cth), s 36(2)(a); Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 citing Regina v Home Secretary; Ex parte Sivakumaran (1988) AC 958.
[31]Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.
His claims for protection have already been explored in these Reasons, and the Tribunal is satisfied that no credibility should be attributed to those claims. At the hearing, he claimed that he wanted to stay in Australia so that he could earn money to send back to his family and pay the loan repayments to the loan he got from the [Bank]. He also said that he has an adopted son in Australia, the mother of that child is a [Country 1] woman who, according to the applicant, is seeking a Bridging visa.
When carefully assessing the claims made by the applicant, the Tribunal is not satisfied the harm he fears could constitute either of the forms of significant harm as defined in section 36(2A)(a)-(c) of the Act. He has not claimed that he will be arbitrarily deprived of his life, or the death penalty will be carried out on him; or that he will be subjected to torture if he returned to Tonga.
The Tribunal has also carefully considered whether the harm he claimed he feared in relation to the economic difficulties he would experience if he returned to Tonga could constitute either of the other forms of significant harm in section 36(2A)(d)-(e) of the Act, that is ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’. Both of these forms of significant harm are defined in section 5(1) of the Act and require the act or omission of the perpetrator to inflict the requisite level of pain or suffering (for cruel or inhuman treatment or punishment) or to cause extreme humiliation (for degrading treatment or punishment) and be intentional.
The ordinary meaning of intention implies a plan or aim and the High Court found that intention requires a perpetrator to have an ‘actual, subjective, state of mind’.[32] No information has been provided by the applicant to show that there will be a perpetrator of any harm to him and therefore the Tribunal is satisfied that there is no actual, subjective state of mind, meaning there will be no intention to inflict the requisite level of pain or suffering (for cruel or inhuman treatment or punishment) or to cause extreme humiliation (for degrading treatment or punishment). For those reasons, the Tribunal is satisfied (and so finds) that the economic hardship the applicant claims he would face does not amount to ‘significant harm’ under section 36(2A) of the Act.
[32]SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection (2017) 262 CLR 362, [26] – [27] and [114].
When careful consideration is given to this matter, the Tribunal accepts, on the basis of the applicant’s evidence that he will suffer economic hardship if he is removed to Tonga. However, that would be as a result of the general economic conditions in that country and it would not be the result of any conduct intended to inflict severe pain or suffering, or extreme humiliation on the applicant.
In respect to his claim that he has a desire to remain in Australia so that he could have a connection with his adopted son, there has been no evidence presented to the Tribunal to validate that particular part of his evidence, and the Tribunal is satisfied that no weight should be placed upon that evidence so far as to any assessment of the criterion for a Protection visa.
Therefore, the Tribunal, is satisfied (and so finds) that although the applicant’s fears of economic hardship are genuine and well-founded, they do not entail significant harm as defined within the Act.[33] His claims relating to the economic conditions he will experience in Tonga if he returns are something which is faced by the population of Tonga generally and is not specifically targeted towards him and it is not a situation whereby he is the only person who faces those issues individually or personally.
[33]Migration Act 1958 (Cth), s 36(2B)(c).
After having considered all of the applicant’s claims, individually and cumulatively, along with the evidence, the Tribunal does not accept that if he returns to Tonga now or in the reasonably foreseeable future he will be arbitrarily deprived of his life, the death penalty will be carried out on him, or he will be subjected to torture or to cruel or inhuman treatment or punishment, and nor will he be subjected to degrading treatment or punishment.
CONCLUSION: REFUGEE CRITERION
Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds that there is not a real chance he will be persecuted for reasons of his race, religion, nationality, political opinion or membership of a particular social group in Tonga. The Tribunal also finds that his fear of persecution is not well-founded as required by section 5J of the Act and, therefore, he is not a refugee within the meaning of section 5H of the Act.
CONCLUSION: COMPLEMENTARY PROTECTION CRITERION
Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Tonga, he will be exposed to a real risk of suffering significant harm.
OVERALL 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 section 36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in section 36(2)(a) of the Act, the Tribunal has considered the alternative criterion and is not satisfied that he is a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.
There is no suggestion that the applicant satisfies section 36(2) of the Act based on being a member of the same family unit as a person who satisfies section 36(2)(a) or section 36(2)(aa) of the Act and who holds a Protection visa. Accordingly, he does not satisfy the criteria in section 36(2) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Wayne Pennell
Senior MemberATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
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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.
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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.
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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.
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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.
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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.
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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.
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36 Protection visas – criteria provided for by this Act
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(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.
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