2315457 (Refugee)

2315457 (Refugee) [2024] AATA 1185 (11 January 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICATION FOR REVIEW:                  Application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Protection XA subclass 866 Visa under s 65 of the Migration Act 1958 (Cth) (‘the Act’)
APPLICANT’S REPRESENTATIVE:        Unrepresented
CASE NUMBER:  2315457
COUNTRY OF REFERENCE:                   Tonga
MEMBER:Kate Chapple
DATE:11 January 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 11 January 2024 at 9:06am

CATCHWORDS
REFUGEE – protection visa – Tonga – economic conditions – employment – remittances to family – accommodation – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 424, 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 dependants.
EVIDENCE BEFORE THE TRIBUNAL
Protection visa application

Protection visa application lodged 18 August 2023.
The applicant’s written protection claims (spelling and grammatical errors not corrected):
2.1.[reason applicant left Tonga] I came to Australia [with a temporary work visa] to work in the farm. My term is expiring soon and there is no extension of contract which is the reason I am applying for this visa. My future looks bleak and I need to work here with my partner in order to support our family back home. Life in Tonga is hard and only those people that are qualified get to find a job where as people like me are left behind. The rich are getting richer and the poor are getting poorer. If given an opportunity here, I know that I can support my family back home.
2.2.[harm experienced by applicant in Tonga] No.
2.3.[reason applicant didn’t try to move elsewhere in Tonga] Moving is not an option as people know each other.
2.4.[what applicant thinks will happen to her if she returns to Tonga] There is no future to return back home, my partner is already here and I will need to be here with him and support our family back home.
2.5.[harm or mistreatment to applicant if she returns to Tonga] No.
2.6.[relocation] Australia offers a far greater opportunity for me here.
Decision record dated 8 September 2023 relating to the delegate’s refusal decision.
Departmental case file.
Internal departmental records relating to the applicant.
Application for review
Application for review lodged 28 September 2023.
The Tribunal wrote to the applicant inviting him to attend a hearing on 19 December 2023?? and to provide pre-hearing submissions.
Prior to the hearing, the applicant provided to the Tribunal confirmation that she intended to participate in the hearing, and the following material:
8.1.Statement by applicant dated 24 November 2023.
8.2.Character reference in relation to the applicant given by the Community Town Officer dated 6 December 2023.
8.3.Copies of marriage and birth certificates relating to the applicant’s marriage, the applicant and her husband, and their [children].
8.4.[Named college] confirmation of the applicant’s current enrolment in the course: [named].
Hearing
The applicant appeared before the Tribunal at a hearing conducted via video link on 10 January 2023, with the assistance of an interpreter (in person) in the Tongan and English languages. The applicant was unrepresented.
The applicant gave evidence, summarised by the Tribunal as follows:
10.1.The applicant was born in [specified year] in [village name] where she grew up with her parents and [specified family members]. Her mother is aged [age], and her father is aged [age]; they remain in Tonga. [Number] of her [siblings] are in [Country 1], one having married a [local], and the [others] there on [temporary] visas. [Other family members are] living in Tonga. The applicant met her husband in Tonga in 2007, he [had specified work]; they married in 2010 and have [children] who are cared for by the applicant’s parents while the applicant and her husband are in Australia.
10.2.The applicant’s parents have never been in formal employment; her father does farm work and her mother sells [goods] at the markets. Her parents have never owned land in Tonga, which has meant significant financial hardship for the family. The applicant did her best at school so she could get a job and contribute. After the applicant left school in [year], she was employed for [number] years as an [occupation 1] by the [named agency]. The applicant helped her parents support the family from her earnings.
10.3.In November 2022, the applicant came to Australia [on a temporary] work visa. Her husband had been in Australia under a similar scheme since 2020, however due to COVID-19, [this] visa was converted to [another] visa. The husband has also applied for a protection visa, and is awaiting the outcome. The applicant worked on a farm in Tasmania for six months, then was approved to visit her husband in [Town 1], Queensland where she got a job with [a named employer]. She now does seasonal work and [occupation 2]. While working in Australia, the applicant has sent money home to her parents to help support them and their children.
10.4.The applicant’s [visa] expired in August 2023. She didn’t want to be an overstayer, but she needed to stay and keep working because the owners of the house her parents and children are living in are returning to live in Tonga, and the applicant needs to earn enough money to fund the purchase a property for her family.
10.5.The applicant had heard from other workers about a woman, [named] (who worked for an agency) who helps people prepare protection visa applications. The applicant paid the woman $300 to prepare her protection visa application, and another $200 after the biometrics were completed. When the application was refused, the applicant paid the woman another $300 to do the review application. The applicant expected that the woman would help her prepare for the Tribunal hearing; she last texted the woman on 3 January, however she did not respond. The applicant prepared the submissions to the Tribunal herself.
10.6.The applicant didn’t understand what a protection visa was at the time the application was made in August 2023. She explained to the woman her circumstances of financial hardship and the woman prepared the application. It was only when the visa was refused and the applicant read the delegate’s decision, that she realised a protection visa is for refugees.
10.7.The applicant’s parents would rather she remain in Australia and earn money for the family while they do their best to care for the children in Tonga.
10.8.The Tribunal reminded the applicant of the legal requirements for the grant of a protection visa under the refugee and complementary protection criteria. The Tribunal acknowledged the financial hardship experienced by the applicant and her family in Tonga, and her efforts in Australia to earn money to alleviate this hardship. The Tribunal explained that a protection visa is a specific visa for people facing persecution in their home country, not a type of work or study visa; and that it is unlikely that the applicant’s circumstances satisfy the requirements for the grant a protection visa. The applicant said she understood.
10.9.The Tribunal explained to the applicant that if, for example, its decision is to affirm the delegate’s decision to refuse the grant of a protection visa, the applicant would need to return to Tonga. In that event, the Tribunal strongly recommended to the applicant that she seek advice from a qualified migration agent or lawyer about her options for applying from Tonga for a different type of visa that would enable her to return to Australia and work.
Country information
The International Monetary Fund’s Mission Concluding Statement 2023 provides (inter alia) that:
11.1.The Tongan economy is rebounding strongly from a major double shock in early 2022. After an estimated contraction of 2 percent in FY2022, real GDP is estimated to have expanded by 2.6 percent in FY2023 (July 2022-June 2023). The bold policy support measures deployed in response to the Hunga Tonga‒Hunga Ha’apai (HTHH) volcanic eruption-tsunami and the local COVID-19 outbreak in January-February 2022, together with aid from the international community, were instrumental in mitigating the socioeconomic fallouts. The post-HTHH recovery in FY2023 has been driven by strong domestic demand and a pickup in tourist arrivals following the border reopening in August 2022.
11.2.The recovery, however, has been accompanied by emerging supply-side bottlenecks and inflation pressures. Tonga is experiencing significant labor shortages resulting from increased demand from seasonal worker programs in Australia and New Zealand. Combined with slow progress in rebuilding damaged tourism facilities (e.g., hotels and resorts) and buoyant domestic demand supported by remittances, underlying inflationary pressures remain elevated, with core inflation showing no signs of easing since September 2022. Headline inflation peaked at 14.1 percent in September 2022 and has since moderated to 6.6 percent in May 2023, driven by the decline in global energy prices and monetary policy tightening in trading partner economies.
11.3.The economic outlook is uncertain in the short term. Growth in FY2024 is projected at 2.5 percent, underpinned by public investment. Although tourism-related services are expected to continue their recovery, tourism receipts as share of GDP are anticipated to remain below pre-pandemic levels until FY2026 due to slow reconstruction of damaged facilities. The recovery in agricultural production is expected to proceed slowly, reflecting labor shortages and soil contamination due to the HTHH tsunami. Remittance inflows are expected to decline from an estimated 44.2 percent of GDP in FY2023 to 39.7 percent in FY2024. Average inflation is projected at 5.8 percent in FY2024—above the National Reserve Bank of Tonga’s (NRBT’s) reference rate of 5 percent.
11.4.The medium-to-long-term growth prospects are weak. Tonga’s long-term growth is projected at 1.2 percent, reflecting its exposure to increasingly frequent natural disasters, persistent loss of workers to emigration, and limited economies of scale due to geographical barriers. While remittances are expected to remain significant, the current account deficit (CAD) is expected to gradually widen relative to its pre-pandemic levels, reflecting heavy import dependence, weak competitiveness, and substantial infrastructure needs. Foreign exchange (FX) reserve coverage is projected to stabilize over the medium term at about 11 months of imports, above the NRBT’s target of 7½ months, supported by external financing.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal notes that s 5AAA(2) of the Act provides that it is the applicant’s responsibility to specify all particulars of her protection claim and to provide sufficient evidence to establish the claim.
In considering the applicant’s claims and evidence, the Tribunal has taken account of the Department of Home Affairs ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’, and the country information set out in this decision record.
Further, the Tribunal has made an assessment of the credibility of the applicant’s claims and evidence having regard to the Migration and Refugee Division Guidelines on the Assessment of Credibility.
The Tribunal considers the applicant’s evidence is a truthful account of her life and experiences in Tonga, and the reasons she came to, and continues to stay in Australia. Her supporting statement and character reference attest to this.
The Tribunal accepts that:
16.1.The applicant and her family experienced economic hardship in Tonga.
16.2.The applicant’s parents and children, although supported by the applicant, continue to experience economic hardship in Tonga, exacerbated by having to vacate the house they were living in.
16.3.The applicant’s motivation for coming to and remaining in Australia is to earn sufficient money to support her parents and children in Tonga and to purchase a property for them to live in.
Given her long-standing family circumstances and the prevailing weak economic conditions, the Tribunal considers it is likely the applicant would experience some economic hardship if she returns to Tonga and would have difficulty earning sufficient money to support the family and purchase a property for them to live in. The Tribunal does not consider however, on the evidence before it, that this economic hardship is targeted at the applicant by reason of race, nationality, religion, membership of a particular social group, or political opinion.
The Tribunal considers it is not likely that, if the applicant returns to Tonga, she would face harm, by cause or nature, that would engage Australia’s protection obligations.
The Tribunal is satisfied that the applicant’s material does not raise any further protection claims requiring its consideration.
Application of law
The issue in this case is whether the applicant meets the refugee criterion, and if not, whether he is entitled to complementary protection. Attachment A sets out the applicable law.
The Tribunal finds that:
21.1.The applicant is a citizen of Tonga and a non-citizen in Australia.
21.2.The applicant does not satisfy the refugee or complementary protection criteria set out in the applicable law.
21.3.If the applicant is returned to Tonga, there is no real chance that she would be persecuted, and accordingly the applicant does not have a ‘well-founded fear of persecution’ as required by s 5H(1)(a) of the Act and as defined in s 5J(1) of the Act.
21.4.There do not exist 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 the applicant will suffer significant harm.
CONCLUSIONS
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a) of the Act.
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has considered the alternative criterion in s 36(2)(aa) of the Act. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.
There is no evidence before the Tribunal that suggests that the applicant satisfies s 36(2)(b) or (c) of the Act on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) of the Act and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2)(b) or (c) of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Kate Chapple
Member

ATTACHMENT A
Summary of applicable law
The criteria for a protection visa are set out in s 36 of the Migration Act 1958 (Cth) and Schedule 2 to the Migration Regulations 1994 (Cth) (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.
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).
Relevant extracts 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.

[2024] AATA 1185

11 January 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Jurisdiction

Procedural Fairness