2317975 (Refugee)

[2024] AATA 1558

2317975 (Refugee) [2024] AATA 1558 (14 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2317975

COUNTRY OF REFERENCE:                   Tonga

MEMBER:Mr S Norman

DATE:14 March 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 March 2024 at 11:00am

CATCHWORDS

REFUGEE – protection visa – Tonga – political opinion – economic conditions – employment – threats against free speech – poverty – employment – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 426, 499
Migration Regulations 1994, Schedule 2

CASES

Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo & Anor (1997) 144 ALR 567
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275       

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 31 October 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act). The applicant who claims to be a citizen of Tonga, applied for the visa on 18 September 2023. The Department delegate’s decision was lodged with the Tribunal.

   CRITERIA FOR A PROTECTION VISA

2. 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.

   Mandatory considerations

3. 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.

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

5. By hearing invitation letter dated 6 December 2023 (dispatched by email), the Tribunal advised the applicant it had considered all the material before it relating to his application, but it was unable to make a favourable decision on that information alone.

6. The Tribunal then invited the applicant to give oral evidence and present arguments at a hearing on 14 March 2024. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice.

7. By email of 6 December 2023, the applicant advised the Tribunal that he would attend the hearing, and he provided inter alia country information he believed was supportive of his case.  

8. The Tribunal had then subsequently sent two SMS hearing reminder texts to the applicant shortly prior to the scheduled hearing.

9. Immediately prior to the hearing, and by applicant email of 13 March 2024, and by telephone call on 14 March 2024 from the applicant’s partner and said to have been undertaken in the presence of the applicant, the Tribunal was advised the applicant would not attend the hearing. The applicant also requested the Tribunal ‘make a decision on his review application’.

10. In the circumstances, and after considering the evidence, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

    The applicant’s claims:

11. The applicant claimed that his partner (engaged – a New Zealand citizen) resides in Australia.[1] The applicant also claimed to have been unemployed between 25 December 1986 and 15 June 2020 – though he claimed to have been employed in farming work since arriving in Australia.[2]

    The applicant’s political opinion:

    [1] PDF – p.8.

    [2] PDF – p.15.

12. As recorded in the delegate’s decision, the applicant claimed:[3]

    [3] See also PDF – from p.18.

13. By email of 6 December 2023 to the Tribunal, the applicant materially repeated that which is set out above. He also claimed:

    ·     his PV application was prepared with assistance from community members – not a registered agent or immigration lawyer

    ·     as a consequence, he was not directly involved in the preparation of the form and came to know more about it when considering the Department refusal

    ·     the applicant referred to a June 2023 article which advocated for Tongan over-stayers in New Zealand to be classed as refugees from an economic war[4] - that article referred to (in part) raids in the 1970s by New Zealand authorities on members of the Tongan community living unlawfully in New Zealand; criticism of these raids; imploring the New Zealand authorities to reconsider their assessment of Tongans seeking refugee protection; noting that many people in Tonga live in poverty; criticising various government policies in Tonga; noting that about 30% of the land entitlement is controlled by the nobility and the King; and referring to the economic war and persecution of ordinary Tongans

    ·     the applicant said he would also try to build the narrative of his circumstances in Tonga, which evidence will ‘definitely be submitted to the Tribunal in accordance with his final deadline of 7 March 2023’

    [4] Commentary: Tolman of the stairs should be seen as refugees from an economic war against ordinary people, Today News, By Kalino Latu, 11 May 2023 (article lodged by applicant on 6 December 2023). 

14. However, the applicant did not submit further evidence to the Tribunal prior to this decision being made. What he did provide was the aforementioned email advice that he would not attend the scheduled hearing, and he also said (in part):

15. Amongst other things, the Tribunal considered the Department file prior to making this decision.

    Assessing the applicant’s claims:

16. The applicant lodged a photocopy of the bio-data page of his Tongan passport with the Department (expiry date: XXX[5]). Based on this evidence, the Tribunal accepts the applicant is a citizen of Tonga, and that Tonga is his receiving country. However, the mere fact that an applicant claims to fear harm 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/s claimed. Further, the Tribunal is not required to accept uncritically any and all the allegations made by an applicant (Randhawa v MIEA (1994) 52 FCR 437, p.451).

    [5] PDF – p.49.

17. That being said, the applicant did not provide sufficient detail to satisfy the Tribunal (ie) that he departed Tonga for reason of his political opinion; or that he had ever experienced any material harm in Tonga; or that he had a real chance of experiencing any material harm on return to Tonga; or that he would be denied work commensurate with his skills in Tonga for a prescribed ground nor as  result of any intention to harm him personally; or that the applicant feared any harm arising from climate change for reason of a prescribed ground, or that there was any intention to harm him personally for this or any other reason.

18. It remains for the applicant to satisfy the Tribunal that all of the statutory elements for the grant of protection are made out (MIEA v Guo & Anor (1997) 144 ALR 567 p.596); and although the concept of the onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 p.288), the relevant facts of the individual case will have to be supplied by the applicant themselves, in as much detail as is necessary to enable the decision maker to establish the facts. A decision maker is not required to make the applicant’s case for him or her (Prasad v MIEA (1985) 6 FCR 155 pp.169-70; Luu & Anor v Renevier (1989) 91 ALR 39 p.45). The Tribunal acknowledges this guidance had been developed for the purposes of considering refugee protection claims, however, I am satisfied it is materially applicable to the assessment of complementary protection claims.

19. Importantly, and in relation to protection claims, it is also ‘the responsibility of the non-citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim’.[6]

    [6] See s.5AAA of the Act, ‘Non-citizen’s responsibility in relation to protection claims’.

20. That said, based on the claims he has provided, the Tribunal is not satisfied all the statutory elements for the grant of protection are made out. Accordingly, I do not accept the applicant has a well-founded fear of persecution for a reason prescribed in the Act; or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Tonga, there is a real risk that he will suffer significant harm.

21. Neither is there any issue, squarely raised by the evidence though not articulated, that has satisfied the Tribunal the applicant has a real chance of suffering serious or significant harm in Tonga.

    Finding:

22. For the reasons given above, the Tribunal is not satisfied 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 considered the alternative criterion in s.36(2)(aa). However, and for the same reasons, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

23. There is no suggestion 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

24. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Mr S Norman
    Member