2319560 (Refugee)

[2024] AATA 1232

2319560 (Refugee) [2024] AATA 1232 (19 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2319560

COUNTRY OF REFERENCE:                   Tonga

MEMBER:Tania Flood

DATE:19 January 2024

PLACE OF DECISION:  Sydney

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

Statement made on 19 January 2024 at 3:23pm

CATCHWORDS
REFUGEE – protection visa – Tonga – economic conditions and community and family relationships – employment opportunities to provide for Australian-born children – partner has no family remaining in home country – country information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), 36(2)(a), (aa), (2A), 65
Migration Regulations 1994 (Cth), 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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 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 Tonga, applied for the visa on 14 October 2023. The delegate refused to grant the visa on the basis that there is not a real chance or a real risk he will suffer serious or significant harm in Tonga for the reasons claimed.  

3. The applicant appeared before the Tribunal on 17 January 2024 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner. 

   CRITERIA FOR A PROTECTION VISA

4. 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.

5. 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.

6. 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).

7. 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.

8. 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

9. 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

10. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations.

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

    Summary of claims

12. The applicant stated in his application for a Protection visa that when he first came to Australia in 2011 his intention was to secure employment as he had a job opportunity lined up.  However, unforeseen events, such as starting a family and having [children] born here significantly altered his plans and priorities.  The responsibility for providing for his family became his paramount concern.    Therefore his initial intention to work temporarily in Australia shifted as he realised that the stability of employment opportunities available in Australia was crucial for his family’s future.  This is why he is seeking a protection visa.

13. The applicant claimed not to have experienced harm in his country.  He stated that safety concerns within Tonga were not the driving factor behind his decision to migrate. His main focus was on securing employment.

14. If he returns to Tonga he will be worried about the well-being of his [children] who have grown up in Australia and rely on him for emotional and financial support.   Being separated from them would have a detrimental impact on their upbringing.

15. Being away from Tonga for so long could pose challenges in terms of finding stable employment and housing.  The job market and economic conditions may have changed during his absence and this makes him apprehensive about his ability to secure a stable livelihood.  He fears he will be at risk of homelessness if he is unable to establish a stable life in Tonga.

16. Further, in Tonga there may be societal and cultural expectations arising from cultural norms which prioritise community over individuals.   However, his [children] will be relying on him as their primary source of support.  Potential harm or mistreatment could also stem from family dynamics and expectations.  Returning to Tonga after an extended absence may disrupt family relationships leading to tension or mistreatment from family members who may have certain expectations or demand of him.  There is a potential of repercussions if he were to involve the authorities in personal matters.

    FINDINGS AND REASONS

    Country of reference

17. When the applicant appeared before the Tribunal on 17 January 2024 he produced his Kingdom of Tonga passport which verifies his claimed identity and nationality.  In the absence of any information to the contrary the Tribunal accepts the applicant is a national of Tonga.

    Tribunal hearing

18. During the hearing the Tribunal discussed with the applicant his background in Tonga, his current circumstances and his reasons for fearing returning to Tonga.  The Tribunal found the applicant to be an honest and credible witness and accepts his testimony which is summarised below. 

19. The applicant testified that his father and one sister live together in [Island] and he has [brothers and other sisters] who live in other parts of Tonga.  He also has a brother in Australia and other brothers who reside in [Country].  He said his father does not work but all the siblings, both inside and outside of Tonga, contribute to his father’s upkeep.  His [brothers] in Tonga work; [in a shop and a work sector 1].  His [sisters] also work in shops.  He claims their income is very low.  The applicant stated that he did not work in Tonga but engaged in some subsistence farming on land rented from extended family.   In Australia he initially did [work sector 2 work] and later worked as [Occupations 1-3]. The applicant testified that his father and sister live in their own home but his siblings are renting accommodation. 

20. The applicant testified that he has [children] with his current partner who is not an Australian citizen or permanent resident.   He said his partner has no family remaining in Tonga.  He said he also has [children] with a former partner in Australia.  He said he has incurred hospital debts as he is not entitled to Medicare.  He said he wants to repay those debts and repeated his concerns about the instability of employment in Tonga and stated that he is concerned about his children’s financial wellbeing. 

21. The applicant conceded that in Tongan culture family look after family.  However he said his siblings have families of their own to support and it would hard for them to offer much help.  He confirmed that his brother in Australia has assisted him financially from time to time.   The applicant stated that he is not in regular contact with his family members in Tonga but said there are no rifts between them.  However, he said his family were not initially happy about his choice of partner.  

22. The applicant’s partner spoke briefly about her and the applicant’s difficult financial situation in Australia. 

    Economic hardship and homelessness

23. The Tribunal accepts that formal employment opportunities in Tonga are limited and that this drives migration of Tongans overseas.  Accordingly, the Tribunal accepts the applicant may indeed experience some difficulties finding employment should he be required to return to Tonga. However, the applicant’s brothers and sisters do work, albeit in low paid jobs.  Based on the applicant’s oral evidence his siblings are able to rent accommodation despite their limited earnings.  The applicant is young and also capable, in the Tribunal’s opinion, of finding work and rental accommodation.  Indeed he said he had developed some specialist skills in [Occupation 1 job task] while in Australia which he could arguably promote to find work in [Work sector 1].  In any event, and as discussed with the applicant during the hearing any difficulties he may face finding employment in Tonga would not be for any of the reasons outlined in s.5J(1)(a) of the Act.  Nor is there evidence to support that any of the difficulties he may encounter finding employment or housing would be for reason of any actions intentionally inflicted upon him with a view to harming him.  Rather, any economic hardship he may encounter would be due to the prevailing economic and employment situation in the country. When this was put to the applicant during the hearing he indicated that he understood.

24. Accordingly, the Tribunal is not satisfied that there is a real chance or a real risk the applicant will suffer serious or significant harm if he returns to Tonga for a reason of economic hardship and/or facing homelessness.

    Societal, cultural and family expectations

25. Despite what is claimed in his application for a Protection visa, the applicant struggled during the hearing to explain his claims in this respect and when asked for further clarity he repeatedly turned the focus back to his fears of facing economic hardship.  The Tribunal was not persuaded that he has any genuine fears arising from either societal, cultural or family expectations.  While he did state that his siblings have not always been there for him and didn’t take well to his current partner he confirmed that there are no existing rifts in the family.  He also conceded that in Tongan culture there is an expectation that family will help family and while he indicated that his family’s financial means are limited and he had some doubts about whether his father would be able to accommodate him on return to Tonga, the Tribunal did not form the view that he had anything to fear due to pressure from his family.  He also did not articulate any fear of harm from others arising from societal or cultural norms.  

26. Based on the available evidence the Tribunal is not satisfied that there is a real chance or a real risk the applicant will suffer serious or significant harm, including being mistreated by family members, if he is required to return to Tonga for reason of societal, cultural or family expectations. 

27. The applicant did not claim to fear returning to Tonga for any other reason.

28. In conclusion the Tribunal finds the applicant is seeking to remain in Australia where his children are located and where he has better prospects of supporting them financially rather than for reasons of fearing harm in his country.  Notably the applicant stated in his application for the Protection visa that safety concerns within Tonga were not the driving factor behind his decision to migrate.

    CONCLUDING PARAGRAPHS

29. 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).

30. 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). For the same reasons already articulated the Tribunal is not satisfied 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.  The Tribunal is therefore not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

31. 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

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

    Tania Flood
    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.

    …