2318986 (Refugee)

[2024] AATA 1566

2318986 (Refugee) [2024] AATA 1566 (7 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2318986

COUNTRY OF REFERENCE:                   Tonga

MEMBER:David James

DATE:7 February 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 07 February 2024 at 9:33am

CATCHWORDS

REFUGEE – protection visa – Tonga – economic conditions – employment – volcanic eruption – exclusion from the community – family support – accommodation – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 424, 499
Migration Regulations 1994, Schedule 2

CASES

Abebe v The Commonwealth of Australia (1999) 197 CLR 510
ABT16 v Minister for Home Affairs [2019] FCA 836
Anadaraj Subramaniam v MIMA (1998) VG310 of 1997
AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133
Chan Yee Kin v MIEA (1989) 169 CLR 379
Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198
Fox v Percy (2003) 214 CLR 118
Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547
MIAC v SZQRB (2013) 210 FCR 505
Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA & Anor (1994) 34 ALD 347
SZLVZ v MIAC [2008] FCA 1816
SZRQA v MIBP [2013] FCA 962       

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 8 November 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of the Kingdom of Tonga (Tonga), applied for the visa on 2 October 2023. The delegate refused to grant the visa on the basis that the delegate was not satisfied that the applicant was a refugee as defined by s 5H of the Act, and was therefore not satisfied that the applicant was a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) of the Act. The delegate was also not satisfied that there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed to Tonga, there is a real risk they will suffer significant harm as defined in s 36(2)(aa) of the Act. Therefore, the delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations as provided for in s 36(2)(aa) of the Act.

3. The applicant filed an application for review of the delegate’s decision with the Administrative Appeals Tribunal (the Tribunal) on 22 November 2023.

4. The applicant appeared before the Tribunal on 6 February 2024 to give evidence and present arguments. The Tribunal hearing was conducted in the English language.

5. The applicant was not represented in relation to the review.

   CRITERIA FOR A PROTECTION VISA

6. 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.

7. 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.

8. 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).

9. 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.

10. The criterion in s 5J(1)(a) contains a subjective requirement, that an applicant must in fact hold a fear of being persecuted, while s 5J(1)(b) imposes an objective standard, that there be a real chance the person would be persecuted. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even when the possibility of persecution is below 50 per cent: Chan Yee Kin v MIEA (1989) 169 CLR 379.

11. 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.

12. [Section 36(2)(aa) refers to a ‘real risk’ of an applicant suffering significant harm. The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition: MIAC v SZQRB (2013) 210 FCR 505.

    Mandatory considerations

13. 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 (the Department), and country information assessments prepared by the Department of Foreign Affairs and Trade (DFAT) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Issues

14. The issues in this review are whether the applicant has a well-founded fear of persecution for one of the five reasons set out in s 5J(1) of the Act, and there is a real chance that, if the applicant was returned to Tonga, they would be persecuted for one of those reasons and, if not, whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Tonga, there is a real risk that the applicant will suffer significant harm as defined in s 36(2A) of the Act.

    Documentary evidence before the Tribunal

15. The Tribunal has before it documents submitted by the applicant to the Department and the Tribunal relating to the applicant’s claims for protection, which includes (but is not limited to) the following documents, considered by the Tribunal:

    ·The applicant’s protection visa application lodged on 2 October 2023 and the annexed copy of the applicant’s Tongan passport’s bio data page;

    ·The applicant’s application for review of 22 November 2023; and

    ·The administrative and movement records of the Department relating to the applicant.

    Claims for protection

16. In his protection visa application, the applicant stated that he had originally arrived in Australia on a work visa from the Kingdom of Tonga. He stated that he was writing to formally request consideration for a protection visa due to the significant and severe changes in circumstances that had affected the living conditions in his homeland. The applicant made the following claims for protection in his application (as summarised below) that:

    ·He left Tonga through the Seasonal Worker Programme (SWP) to work in Australia;

    ·There has been a significant economic downturn in Tonga with decreased job opportunities and a subsequent decline in the standard of living for Tongans. This, coupled with the devastating volcanic eruption environmental impacts, has put an immense strain on the nation’s infrastructure, which has further amplified the hardships faced by its people;

    ·In discussions with his family about the deteriorating situation in Tonga, he thinks he will face a great risk to his well-being, experience economic hardship, and find it extremely difficult to financially support himself if he returns to Tonga, due to  the combined effects of economic instability, reduced access to resources, and the environmental impacts of the volcanic eruption;

    ·He thinks he will be harmed by fellow villagers in his community who will not be supportive of him not being able to support himself;

    ·He did not try to relocate in Tonga because he was able to come to Australia through the SWP;

    ·He does not believe the Tongan authorities can protect him because they are not able to offer the applicant any financial assistance; and

    ·He does not believe that relocating to another part of Tonga will help his circumstances.

    Department interview

17. The applicant was not offered an interview by the Department.

    Invitation to attend a hearing

18. On 15 December 2023, the Tribunal invited the applicant to attend a review hearing at the Brisbane Registry on 6 February 2024 at 9:30 am. This correspondence advised the applicant that the Tribunal had considered all the material before it relating to their application, but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing. The invitation stated that if the applicant did not attend the hearing, the Tribunal may make a decision on the case without further notice.

19. On 27 November 2023, 14 December 2023, and 29 January 2024, the Tribunal sent correspondence to the applicant’s email address as provided on his application for review form, requesting that he provide a copy of the department’s decision record and provide a completed ‘hearing response’ form to the Tribunal.

20. At 11:08 am on 30 January 2024, the Tribunal sent a SMS Hearing Reminder to the applicant’s mobile phone number as provided on his application for review form. The message read:

    Reminder – Your AAT hearing is on 06/02/24. Please check the hearing invitation to confirm details. If you have not replied to your hearing invitation, please do so immediately. Please do not reply to this number. Any questions, call 1800 228 333.

21. At 2:00 pm on 30 January 2024, a Tribunal Officer telephoned the applicant on his mobile number and enquired whether he had received any of the Tribunal’s emails, including the hearing invitation of 15 December 2023. The applicant indicated that he was unaware of the Tribunal’s correspondence and informed the officer that his wife looked after their emails. In reply to the applicant inquiring as to his hearing, the Tribunal Officer informed the applicant of the date and time of his scheduled hearing. The applicant then inquired as to whether his hearing could instead be changed to the Friday following the current listing. The applicant was then informed that they were unable to re-schedule his hearing and that he would have to make a formal written request for a postponement, which would then be considered by the Presiding Senior Member. The applicant then informed the Tribunal Officer that he was now living in New South Wales (NSW) and that he wouldn’t be able to attend the hearing. The Tribunal Officer recommended to the applicant that he read the hearing invitation in full and told him that if he was unable to attend as invited, he should write to the Tribunal explaining that he had moved interstate, and request alternative arrangements are made that may include appearing by videoconference from another Registry. The applicant acknowledged this information, indicated he had no questions, and told the Tribunal Officer that he would email and respond to the invitation.

22. At 4:07 pm on 30 January 2024, the Tribunal received a telephone call from a female person claiming to be the applicant’s stepmother enquiring about the Tribunal’s SMS reminder text message. A Tribunal Officer explained to the caller that the Tribunal could only discuss matters relating to the applicant’s matter with the applicant and any other authorised persons, and as such could not provide any details as to the applicant’s matter but for explaining the SMS message in terms of a reminder relating to a listed hearing that had been subject to an earlier invitation to the applicant.

23. On 30 January 2024, the Tribunal again emailed the applicant requesting that he provide a copy of the department’s decision record, a completed ‘hearing response’ form and, given his earlier telephone conversation with the Tribunal (see above at paragraph 21), a completed ‘Change of Contact Details’ form and any appropriate written request to appear by videoconference. The Tribunal in this correspondence also referred the applicant to, and attached a copy of, the Migration and Refugee Division Practice Direction.

    Seasonal Worker Programme (SWP)

24. The Australian Government’s Seasonal Worker Programme’s ‘Working and Living in Australia Pre-Departure Guidebook’[1] provides at 1.2 that:

    The Seasonal Worker Programme contributes to the economic development of Pacific Island countries and Timor-Leste by providing work opportunities in the Australian agriculture and accommodation industries. The Seasonal Worker Programme offers seasonal labour to employers in the agricultural industry and employers in selected locations in the accommodation industry who can’t meet their seasonal labour needs with local job seekers. The Programme has been designed so that you have the opportunity to benefit financially from working here. However, you must work hard and manage your money carefully. You have the opportunity to earn more money in Australia than you do back home, but living in Australia is expensive. It is easy to spend the money that you make, so budgeting is important.

    Additionally, at 2.5 entitled ‘What if I want to stay in Australia permanently?’, the guidebook provides that:

    As a seasonal worker, you cannot apply for any other type of visa while in Australia. When you get back to your home country, you may be able to apply for other types of visas that might let you stay longer or you can apply again for the Seasonal Worker Programme next year. If you are a good worker, your employer may want you to come back the next season

    [1] ‘Working and Living in Australia Pre-Departure Guidebook for seasonal workers’, Australian Government, Seasonal Worker Programme – >

    SWP workers must remain employed by the employer for which they were granted their visa, otherwise they breach their visa conditions.[2] In Australia, those who leave their approved employer without reasonable grounds are referred to as ‘absconders’, but in Tonga the term used is ‘hola’ (literally ‘run away’).[3]

    [2] ‘Joint Standing Committee on Migration: Submission of the department of Employment, Department of Immigration and Border protection, Department of Agriculture, Fair Work Ombudsman’, Parliament of Australia, Department of Employment, Department of Immigration and Border Protection, Department of Agriculture, Fair Work Ombudsman, 30 July 2015.

    [3] “Becoming ‘Overstayers’: The Coloniality of Citizenship and the Resilience of Pacific Farm Workers”, M Nishitani and H Lee, Australian National University (ANU) 2019.

    Country Information

25. As to the Tongan Government’s response to absconders, a 2020 report published by the Development Policy Centre at the Australian National University (ANU) stated that the Tongan authorities has changed the way workers are recruited, and have stationed a liaison officer in Australia. The report provided that:

    …a major problem for Tonga’s management of the SWP has been a high number of absconding workers. In the period December 2017 to July 2018, some 99 workers had absconded from their employer. The response of the LSU has been to seek greater involvement of [Tongan] local government officials and the revived Village Councils in the vetting of workers for the work-ready pool to ensure that workers in the pool are reliable workers…In response to the problems with absconding, the Tongan Government, which had for some time funded a liaison officer in New Zealand, funded a liaison officer in Australia, resident in Tasmania, who was expected to cover Victoria, South Australia and Tasmania.[4]

    [4] ‘Governance of the Seasonal Worker Programme in Australia and Sending Countries’, Richard Curtain and Stephen Howes, Development Policy Centre, 08 December 2020.

26. In a 2019 ANU essay on labour mobility between the Pacific Islands and Australia, it was noted that the Tongan diaspora community in Australia had ‘ambivalent views’ towards SWP absconders who attempted to overstay. However, families in Tonga ‘feared workers would leave the scheme in Australia, abandon their children and stop sending money’. Some Tongans who absconded from their SWP employment did so because of pressure from their family to send more money home.[5]

    [5] “Becoming ‘Overstayers’: The Coloniality of Citizenship and the Resilience of Pacific Farm Workers”, M Nishitani and H Lee, Australian National University (ANU) 2019.

27. However, the abovementioned 2019 ANU essay  did not state that absconders faced violence or reprisals upon returning to Tonga.[6]

    [6] Ibid.

    Review hearing - 6 February 2024

28. The Tribunal explained to the applicant that the hearing would consider the applicant’s application for a protection visa afresh. The applicant, when questioned by the Tribunal as to his understanding of the relevant statutory framework and concepts as to the refugee and complementary protection criteria, said that he did not understand the criteria, as it had never been explained to him by anyone.

29. The Tribunal then provided an outline of the refugee and complimentary protection criteria to the applicant, who then acknowledged that he understood the criteria.

30. The applicant told the Tribunal that he travelled to Australia on 20 April 2022, through the Seasonal Worker Programme (SWP). He said that he was employed by the company ‘[named]’, and worked in [Town 1], Queensland picking [fruit] for about 7 months. He explained that his visa and work placement was for a period of 9 months, but due to a misunderstanding with his employer, he left (or absconded from) his work placement and breached his visa conditions.

31. Under further questioning, the applicant explained that he had left his employment in [Town 1] because he was not being provided with the hours of work or the wages he had expected to receive. He told the Tribunal that, after leaving his work placement in August 2023, he travelled to Brisbane where his father was living. The applicant explained that he has since resided with his father in Brisbane. He further stated that, since arriving in Brisbane, he has been unable to obtain any employment as he does not have a Tax File Number.

1. The applicant told the Tribunal that his father was in the process of applying for permanent residency and that most of his father’s side of their family now lived in Sydney, Australia. He said that his [one sibling] was also now living in Australia and working as [an occupation 1], but he did not know what [their] current Australian visa and/or residency status was. He further explained that his mother, who was separated from his father, still resided in their family’s home in [Village 1], Tonga, and lived there with her new partner and some of his family. He also told the Tribunal that [one] sister and her children resided in Tonga, and that her husband was presently working as [an occupation 2] through the SWP in Australia, but that they were now separating.

2. When asked why he feared returning to Tonga, the applicant told the Tribunal that he feared returning to Tonga because he had no place to live or work. He further explained that there is no better life for him in Tonga and no employment opportunities. Under further questioning, he agreed that both the poor standard of living and lack of employment opportunities in Tonga were economic factors that were faced by all of the population, and were not specifically targeted at him through, for example, any withdrawal of employment opportunities.

3. The applicant further explained that, if he returned to Tonga, he feared that his stepfather and his family would not provide him with accommodation or any other financial assistance. However, under further questioning, he said that he could stay with [one] sister and her family if he needed to do so upon any return to Tonga, but that it was unlikely he could find any employment that would provide him with an income similar to what he can obtain here in Australia.

4. The applicant further told the Tribunal that he wanted to stay in Australia and obtain work rights so that he can financially assist his sister, her children, and his mother, who was unwell and receiving treatment at the local hospital for breast cancer.

5. The applicant told the Tribunal that he wished to stay in Australia for a better life and better employment opportunities,  not because he feared being harmed by anyone, any group, and/or any organisation in Tonga.

6. The Tribunal then took the applicant through his claims, as outlined in his application for the protection visa. In reply, he explained that: he had left Tonga through the SWP; there had been an economic downturn in Tonga; he and his family had discussed the likely economic hardship he would face if he returned to Tonga; he did not face harm from his community, but he would not be assisted financially or be provided accommodation by his stepfather and his family; and that he could relocate within Tonga for employment if he needed to do so, but that he did not believe there were any employment opportunities in Tonga, including in the capital of Nuku’alofa.

7. The applicant then again raised his concerns that he may face some harm by his community given he would be unable to support himself upon any return to Tonga. When asked how he would be so harmed and by whom, the applicant was unable to provide any details as to what harm he would face and by whom, and could not provide any examples of any returnees to Tonga from the SWP having faced such societal harm or exclusion from the community.

8. The Tribunal then raised the country information as outlined above at paragraphs 26 to 28. In particular, the Tribunal highlighted the information at paragraph 28, which reported that SWP absconders did not face violence or reprisals upon returning to Tonga. In reply, the applicant agreed with this information, and repeated his earlier explanation that what he meant was he feared that he would not receive any assistance from his stepfather and his family, who now lived in his family’s home with his mother.

9. The Tribunal then reminded the applicant of the explanation that he had received at the commencement of the hearing as to the refugee and complimentary criteria. Under questioning, the applicant conceded he did not meet the criteria, but told the Tribunal that he would face difficulties in finding employment, supporting and housing himself, and providing financial assistance to his sister, her children and his mother, if he was to imminently return to Tonga.

10. The applicant then told the Tribunal, by way of his final submissions, that he wanted to help his family, including his sister, her children, and his mother, the latter of whom is suffering from breast cancer. He explained that he wanted to stay in Australia and avail himself of the better employment opportunities so that he could provide financial assistance to his family and have a better life for himself in Australia.

    FINDINGS AND REASONS

11. The Tribunal notes that it is conducting a ‘de novo’ review and has considered the material afresh and made its own assessment and determination as to whether the applicant meets the criteria for the grant of a protection visa.

    Country of reference

12. According to the protection visa application, the applicant claims to be a citizen of Tonga and provided a copy of the bio data page of his Tongan passport. Based on this material, the Tribunal finds that the applicant is who he says he is, and a national of Tonga. Tonga is therefore the receiving country for the purpose of assessing the applicant’s claims for protection.

    Analysis

13. The Tribunal is inquisitorial and can seek out evidence it requires in order to reach a determination, but the Tribunal is not required to actively seek out evidence to support an applicant’s claim: see ABT16 v Minister for Home Affairs [2019] FCA 836.

14. The Tribunal notes that the Act places certain obligations on protection visa applicants in presenting their case. It is the responsibility of an applicant to specify all the particulars of his or her claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish such a claim.[7] The Tribunal on review does not have a responsibility or an obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim.[8] This is consistent with the established proposition that it is for the applicant to make his or her own case.[9]

    [7] Section 5AAA of the Act.

    [8] Ibid (with effect from 14 April 2015).

    [9] Abebe v Commonwealth (1999) 197 CLR 510 at [187].

15. The mere fact that a person claims fear of persecution for a particular reason or reasons does not establish either the genuineness of the asserted fear or that it is ‘well-founded’. Similarly, that an applicant 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 applicant to satisfy the Tribunal; that all of the statutory elements are made out.  A decision-maker is not required to make the applicant’s case for him or her. Nor is the Tribunal required to accept uncritically all the allegations made by the applicant: see MIEA v Guo (1997) 191 CLR 559 at 596; Prasad v MIEA (1985) 6 FCR 155 at 169-70.

16. The Tribunal notes that assessment of credibility is an inherently difficult process and can be based on imperfect perceptions of truth.[10] In this regard, the Tribunal has taken into consideration the comments of both the High Court and Federal Court of Australia,[11] and notes that in AVQ15 v Minister for Immigration and Border Protection [2018] FCAFC 133, the court observed that it is well-established that assessment of reliability and credibility of evidence of asylum seekers should be careful and thoughtful, and processes should be conducted fairly and reasonably, considering assessment is not an exact science.

    [10] Fox v Percy (2003) 214 CLR 118

    [11] For example, Minister for Immigration andEthnic Affairs v Wu Shan Liang & Ors (1996) 185 CLR 259, Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, Abebe v The Commonwealth of Australia (1999) 197 CLR 510, Randhawa v MILGEA (1994) 52 FCR 437, Selvadurai v MIEA & Anor (1994) 34 ALD 347, Minister for Immigration and Ethnic Affairs and McIllhatton v Guo Wei Rong and Pan Run Juan (1996) 40 ALD 445, Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 1198, Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 and Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220.

17. In this regard, courts have also suggested that the benefit of the doubt should be given to those who are generally credible but unable to substantiate all claims.[12] A similar approach is taken in the Department’s Refugee Law Guidelines[13] and in the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (UNHCR Handbook),[14] which both provide useful guidance for this Tribunal.

    [12] SZLVZ v MIAC [2008] FCA 1816 at [25].

    [13] Department of Home Affairs, ‘Policy – Refugee and humanitarian – Refugee Law Guidelines’, section 15.4, as re-issued 1 July 2017 (Refugee Law Guidelines)

    [14] UNHCR, re-issued February 2019 at [203]–[204].

    Economic situation

18. The applicant claims that he will face a great risk to his well-being, experience economic hardship, and find it extremely difficult to support himself if he returns to Tonga, due to  the combined effects of the instability of the Tongan economy and the environmental impacts of the volcanic eruption in 2022.

19. The applicant’s claims that he will face economic hardship because of the poor economic situation in Tonga if he was to return to Tonga in the reasonably foreseeable future, do not relate to any of the reasons in s 5J(1)(a) of the Act. Further, it was the applicant’s evidence at the hearing that he did not fear any harm from any person or persons, groups of people and/or any organisations if he was to return to Tonga.

20. Additionally, there is no evidence and/or information before the Tribunal that the applicant would be harmed in any way if he was to return to Tonga, but for him facing the economic situation in Tonga and the poor employment opportunities, together with the lack of any support by way of accommodation and/or financial support provided by his mother and her new partner.

21. Therefore, the Tribunal finds on the evidence before it, and for the reasons outlined above, that the applicant does not face a real chance of persecution involving serious harm for any of the reasons outlined in s 5J(1)(a) of the Act if he was to return to Tonga in the reasonably foreseeable future.

22. The Tribunal finds that the applicant’s fears in this regard are not well-founded.

23. Additionally, as to these claims of economic hardship, the applicant conceded during the hearing that the poor economic situation in Tonga, which may have been exasperated by the recent volcanic eruptions, were factors that the population of Tonga all faced. He further conceded that he would not be subjected to having any employment opportunities, if so available, in Tonga, being withdrawn from him for any reason.

    Fears of harm from fellow villagers in his community

24. The applicant claims that he thinks he will be harmed by fellow villagers in his community who will not be supportive of his inability to support himself if he returns to Tonga.

25. However, at the hearing the applicant was unable to describe what harm he feared, identify who he feared in this regard, or provide any examples of any other returning SWP absconders and/or returnees having been so harmed.

26. When the applicant’s attention was drawn to the country information outlined above at paragraph 28, in which it was reported that there was no information that suggested that absconders (from the SWP) faced violence or reprisals upon returning to Tonga, the applicant agreed that he did not know of any such instances. The applicant then explained to the Tribunal that what he really feared in this regard was that his stepfather and some of his family who lived with his mother in his family’s home would not assist him with accommodation and/or provide him with any other financial support if he returned to Tonga.

27. The applicant, when further questioned at the hearing as to this claim, also agreed that he did not fear any harm, ‘serious harm’ and/or ‘significant harm’, but rather was concerned that he would not be assisted or supported by his family and/or his community if he returned to Tonga.

28. Therefore, on the evidence before it, and for the reasons outlined above, the Tribunal finds that the applicant does not face a real chance of persecution involving serious harm for any of the reasons outlined in s 5J(1)(a) of the Act, if he was in the reasonably foreseeable future to return to Tonga.

29. The applicant’s fears in this regard are not well-founded.

30. The applicant also agreed at the hearing that there would not be any perpetrator of any harm to him, and that his fears in this regard related to his earlier claims of economic hardship he would face if he was to return to Tonga in the reasonably foreseeable future.

    Delay

31. Finally, the Tribunal notes that the applicant arrived in Australia on 20 April 2023 to participate in the Seasonal Worker Programme, and because of his concerns of the economic situation in Tonga. However, notwithstanding his fears as to the economic situation in Tonga, the applicant did not make his application for the protection visa until almost 18 months later on 2 October 2023, and after he had absconded from the SWP in or around August 2023. The Tribunal finds that this delay is inconsistent with the applicant’s claims being genuine.

32. In that regard, the Tribunal has considered Anadaraj Subramaniam v MIMA (1998) VG310 of 1997, where the Court held that even a three-month delay in lodging a protection visa application is a legitimate matter to take into account when assessing the genuineness or depth of an applicant’s fears of persecution; and, SZRQA v MIBP [2013] FCA 962 at [17] where the Court found no want of logic in the Tribunal reasoning, in circumstances where the applicant had obtained his student visa fraudulently, that the applicant ought reasonably to have realised that he was vulnerable to deportation, and that if he were in genuine fear of persecution, he would not have delayed applying for a protection visa.

    Refugee criterion

33. Based on the information before it, the Tribunal rejects the applicant’s claims of fear of persecution in their entirety and, having considered all of the applicant’s claims both individually and cumulatively, finds there has been no evidence of persecution or fears of persecution for the reasons provided in s 5J of the Act. The Tribunal finds that the applicant does not face a real chance of persecution involving serious harm in the reasonably foreseeable future for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal finds that the applicant’s fears of persecution are not well-founded as required by s 5J of the Act and therefore, that the applicant is not a refugee within the definition of s 5H of the Act.

34. 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) of the Act.

    Complementary protection

35. Having concluded the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, the Tribunal has also considered whether the applicant is eligible for complementary protection as outlined in s 36(2)(aa) of the Act.

36. As noted above, the Tribunal is not satisfied that any of the applicant’s claims meet the refugee criterion. It is for the same reasons that the Tribunal is not satisfied that the applicant meets the refugee criterion, that it is also not satisfied that the applicant meets the complementary protection criterion. Given the evidence before it, the Tribunal does not accept 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 the applicant will suffer significant harm as defined in s 36(2A) of the Act.

37. The Tribunal finds that the applicant is not a person in respect of whom Australia has protection obligations under s 36(2)(aa) of the Act.

    Additional findings

38. Additionally, there is no suggestion that the applicant satisfies 36(2) 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.

39. As the Tribunal has found that the applicant does not meet the refugee and complimentary criteria and does not satisfy the criteria in s 36(2) of the Act, the Tribunal has not found it necessary to assess s 36(3) of the Act, as to whether the applicant has a right to enter and reside in a country other than Tonga.

    DECISION

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

    David James
    Senior Member

    ATTACHMENT  -  Extract from Migration Act 1958

    5 (1) Interpretation

    …

    cruel or inhuman treatment or punishment means an act or omission by which:

    (a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or

    (b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;

    but does not include an act or omission:

    (c)     that is not inconsistent with Article 7 of the Covenant; or

    (d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:

    (a)     that is not inconsistent with Article 7 of the Covenant; or

    (b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:

    (a)     for the purpose of obtaining from the person or from a third person information or a confession; or

    (b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or

    (c)     for the purpose of intimidating or coercing the person or a third person; or

    (d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or

    (e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;

    but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.

    …

    receiving country,  in relation to a non-citizen, means:

    (a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or

    (b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.

    …

    5H    Meaning of refugee

    (1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:

    (a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or

    (b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

    Note:     For the meaning of well-founded fear of persecution, see section 5J.

    …

    5J     Meaning of well-founded fear of persecution

    (1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:

    (a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and

    (b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and

    (c)     the real chance of persecution relates to all areas of a receiving country.

    Note:     For membership of a particular social group, see sections 5K and 5L.

    (2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.

    Note:     For effective protection measures, see section 5LA.

    (3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:

    (a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or

    (b)     conceal an innate or immutable characteristic of the person; or

    (c)     without limiting paragraph (a) or (b), require the person to do any of the following:

    (i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;

    (ii)conceal his or her true race, ethnicity, nationality or country of origin;

    (iii)alter his or her political beliefs or conceal his or her true political beliefs;

    (iv)conceal a physical, psychological or intellectual disability;

    (v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;

    (vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

    (4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):

    (a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and

    (b)     the persecution must involve serious harm to the person; and

    (c)     the persecution must involve systematic and discriminatory conduct.

    (5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:

    (a)     a threat to the person’s life or liberty;

    (b)     significant physical harassment of the person;

    (c)     significant physical ill‑treatment of the person;

    (d)     significant economic hardship that threatens the person’s capacity to subsist;

    (e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;

    (f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.

    (6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

    5K    Membership of a particular social group consisting of family

    For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:

    (a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and

    (b)     disregard any fear of persecution, or any persecution, that:

    (i)the first person has ever experienced; or

    (ii)any other member or former member (whether alive or dead) of the family has ever experienced;

    where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.

    Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.

    5L    Membership of a particular social group other than family

    For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:

    (a)     a characteristic is shared by each member of the group; and

    (b)     the person shares, or is perceived as sharing, the characteristic; and

    (c)     any of the following apply:

    (i)the characteristic is an innate or immutable characteristic;

    (ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;

    (iii)the characteristic distinguishes the group from society; and

    (d)     the characteristic is not a fear of persecution.

    5LA Effective protection measures

    (1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:

    (a)     protection against persecution could be provided to the person by:

    (i)the relevant State; or

    (ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

    (b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.

    (2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:

    (a)     the person can access the protection; and

    (b)     the protection is durable; and

    (c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.

    …

    36     Protection visas – criteria provided for by this Act

    …

    (2)A criterion for a protection visa is that the applicant for the visa is:

    (a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or

    (aa)  a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or

    (b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (a); and

    (ii)holds a protection visa of the same class as that applied for by the applicant; or

    (c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:

    (i)is mentioned in paragraph (aa); and

    (ii)holds a protection visa of the same class as that applied for by the applicant.

    (2A)A non‑citizen will suffer significant harm if:

    (a)     the non‑citizen will be arbitrarily deprived of his or her life; or

    (b)     the death penalty will be carried out on the non‑citizen; or

    (c)     the non‑citizen will be subjected to torture; or

    (d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

    (e)     the non‑citizen will be subjected to degrading treatment or punishment.

    (2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:

    (a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or

    (b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or

    (c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.

    …