2316725 (Refugee)

2316725 (Refugee) [2023] AATA 4687 (15 December 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2316725

COUNTRY OF REFERENCE: Tonga
MEMBER:Lilly Mojsin
DATE:15 December 2023
PLACE OF DECISION: Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 December 2023 at 9:30am
CATCHWORDS
REFUGEE – protection visa – Tonga – political opinion – opposition to the Government – lack of job security – economic conditions – employment – climate change fears – natural disasters – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 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.
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 2 October 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant claims to be a citizen of Tonga.
The applicant applied for the visa on 30 August 2023, on the basis that the delegate was not satisfied the applicant will suffer serious or significant harm on his return to Tonga within a reasonably foreseeable future.
The applicant appealed that decision to this Tribunal, attaching a copy of the Department decision to the review application.
The applicant appeared before the Tribunal on 6 December 2023 to give evidence and present arguments.
The Tribunal hearing was conducted with the assistance of an interpreter in the Tonga and English languages.
CRITERIA FOR A PROTECTION VISA
See Annexure A
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant claims, in his protection visa application form contained within the Department file:
§in his political opinion, the Government does not provide job security. They are fleeing economic hardship and climate change.
§he experienced psychological and economic strife due to the lack of job security.
§he received threats from government agencies for voicing concerns over the government ’s inability to provide job security.
§in Tonga there is ‘nowhere to provide help against the Government’. There is nowhere to relocate to in Tonga, and no support to be found.
§The authorities do not have the resources to provide help or protection.
§If the applicant were to return to Tonga he would experience the same psychological and economic strife due to the lack of job security. He may be threatened by government agencies if he were to voice his concerns about the government.
At the Tribunal hearing the applicant said that he finished high school and he worked and joined the [Agency 1] where he worked for [number] years. He left [Agency 1] in December 2019. He came to Australia in 2019.
He is married to a Tongan, who is in Australia with him. He has [number] children, they are from [age] years of age down. The children are all in Tonga and live with his wife’s parents. His wife works in [a specified industry].
He did not apply for this visa for 3 years because he came here on a visitor’s visa. During the lockdown he overstayed. His wife arrived and now has a visa for 4 years, a skilled working visa. I asked why he did not go back to Tonga before and he said that the agent that put in the application did not put him in her application.
I asked why he did not go back to Tonga and he said that during his time here, there were so many things involving COVID and the tsunami that affected their home and they got assistance. That was why he wants to live here. During the eruption he managed to contact his family and after the tsunami it is not safe to live in Tonga.
I asked about his application and he said that it was written by [a] Fijian lady. She charged him $4300 and she wrote the claims. I asked if he knew what she wrote. He said she told him the type of visa was protection, asked if he knew what the claims she made were and he said that she asked a few questions and his problems.
I asked what he fears about returning to Tonga. He said that there is so may things with the weather that affects the level of the sea and climate change and things are not promising. When put that these conditions affected all residents, he agreed it. That is only thing he fears. He said that now we are going to cyclone season and we do not know what to expect. He might not be able to find a job. I asked what work he can do he said that the main thing he can do is sell produce in the market. Family and friends have land on which he may be able to grow produce. I asked how his family survived when he was in Australia and he said that his wife in Tonga worked as [an occupation 1], his wife has been the main supporter. He came to Australia in 2020 to his visit cousin and to find work in Australia.
The applicant said that he does not claim the Government does not provide job security. He did not flee economic hardship and climate change. He came for a holiday when retired from [Agency 1]. He did not received threats from government agencies for voicing concerns over the government ’s inability to provide job security and did not seek help in Tonga as there is ‘nowhere to provide help against the Government. He said that he did not apply for work in Tonga. He said he just wanted to apologise.
INDEPENDENT EVIDENCE
The Kingdom of Tonga is a constitutional monarchy[1]. The Legislative Assembly, a parliamentary body consisting of 17 popularly elected members and nine nobles selected by their peers, elects the prime minister. Following the November 2021 election, which international observers characterized as generally free and fair, then Prime Minister Pohiva Tu’i’onetoa declined to seek reelection, and Siaosi Sovaleni was selected as new prime minister. While the prime minister and his cabinet are responsible for most government functions, King Tupou VI, the nobility, and their representatives retain significant authority.
The Tonga Police Force maintains internal security and reports to the Ministry of Police and Fire Services. Civilian authorities maintained effective control over the security forces. Members of the security forces committed few abuses.
Significant human rights issues included credible reports of: serious government corruption. There were reports of government corruption, for which there was some impunity. The government took steps to prosecute and punish officials who committed human rights abuses or engaged in corruption.
The constitution provides for an independent judiciary, and the government generally respected judicial independence and impartiality.
[1] Tonga - United States Department of State
REASONS AND FINDINGS
On the basis of his Tongan passport, I accept that the applicant is a national of Tonga and not national or citizen of any other country. I accept that he does not have a right to enter and reside in any country other than Tonga. Therefore, I find that the applicant is not excluded from Australia's protection by subsection 36(3) of the Act. I also find that Tonga is the applicant’s “receiving country” for the purposes of s.36(2)(aa).
The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. Similarly, that the applicants claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to “significant harm”. It remains for the applicants to satisfy the Tribunal that all of the statutory elements are made out.
The applicant was employed by [Agency 1] and served [there] until 2019. The applicant does not claim to have suffered any harm in Tonga.
The applicant claims, and I accept he went to a person who wrote his PV application for him but he does not agree that what was written in that application reflected his view. I accept he did not instruct the person to write the claims as made to the Department.
Therefore I find that the applicant has not expressed or imputed a political opinion that the Government does not provide job security. I find that the applicant did not experience psychological and economic strife due to the lack of job security or that he received threats from government agencies for voicing concerns over the government ’s inability to provide job security or that the authorities do not have the resources to provide help or protection.
On the information before me, I find the applicant did not suffer harm in Tonga.
I have considered the applicant’s evidence singularly and cumulatively. I am satisfied the applicant did not suffer serious harm, in Tonga, for a refugee reason ie. for reasons of his race, religion, nationality, membership of a particular social group or political opinion.
I am required to assess whether the applicant will suffer serious harm, within a reasonably foreseeable future, on his return to Tonga.
The Tongan archipelago has 36 islands which are inhabited with a total population of approximately 106,000. I accept that it is a small island with a small population. I accept there is government corruption but it has an independent and impartial judiciary. It has an Ombudsman. Tonga[2] has effective judicial and law enforcement agencies, is governed by the rule of law and has an infrastructure of laws designed to protect its nationals against harm.
[2] Tonga - United States Department of State
The applicant is married and has [number] children who all live in Tonga with their grandparents. The applicant’s wife currently lives and works in Australia and has a working visa. The agent assisting her to obtain her visa did not apply for the applicant to be a secondary applicant on her visa.
I accept that the applicant’s claims in his PV were written without his instructions. I find that if the applicant were to return to Tonga he would not experience the same psychological and economic strife due to the lack of job security and he would not be threatened by government agencies and he does not intend to voice his concerns about the government.
On the information before me, the applicant does not claim he will persecution in Tonga for reasons of his reasons of his race, religion, nationality, membership of a particular social group or political opinion.
I have considered the applicant’s evidence singularly and cumulatively. I am satisfied the applicant did not suffer serious harm, in Tonga, for a refugee reason ie. for reasons of his race, religion, nationality, membership of a particular social group or political opinion.
I am required to assess whether the applicant will suffer serious harm, within a reasonably foreseeable future, on his return to Tonga.
The Tongan archipelago has 36 islands which are inhabited with a total population of approximately 106,000. I accept that it is a small island with a small population. I accept there is government corruption but it has an independent and impartial judiciary. It has an Ombudsman. I accept that there was an an undersea volcano, Hunga Tonga-Hunga Haʻapai that began to erupt violently in Tonga in January 2022[3] causing a tsunami. Australia committed $3 million in initial humanitarian assistance and an additional $16 million to support Tonga’s recovery[4]. Australia has continued to work in close partnership with the Tongan Government and other countries to assist Tonga’s ongoing recovery and reconstruction efforts. The applicant was in Australia at that time and does not claim that his family were affected.
[3] In depth: Surprising tsunamis caused by explosive eruption in Tonga | U.S. Geological Survey (usgs.gov)
[4] Hunga Tonga-Hunga Ha’apai Volcanic Eruption and Tsunami | Australian Government Department of Foreign Affairs and Trade (dfat.gov.au)
I accept that the applicant has genuine concerns about the tsunami aftermath and climate change effects on Tonga and its economy. He is concerned that the weather affects the level of the sea and climate change and believes things are not promising. When put that these conditions affected all residents, he agreed it.
In regard to finding a job the applicant did not seek employment in Tonga. He said that the main thing he can do is sell produce in the market. Family and friends have land on which he may be able to grow produce. I do not accept that there is a real risk that the applicant will suffer significant harm because of the difficulty in finding employment in Tonga within a reasonably foreseeable future.
Therefore, having considered the applicants' circumstances singularly and cumulatively, I do not accept on the evidence before me, that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Tonga, there is a real risk that he will be arbitrarily deprived of life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment.
Accordingly, I find that the applicant does not satisfy the requirements of s.36(2)(aa) of the Act.
Conclusions
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 the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a Protection visa.
Lilly Mojsin
Member

Annexure A
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (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, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2023] AATA 4687

15 December 2023

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Jurisdiction

Statutory Construction

Procedural Fairness

Natural Justice