2321311 (Refugee)

[2024] AATA 2591

2321311 (Refugee) [2024] AATA 2591 (8 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2321311

COUNTRY OF REFERENCE:                   Tonga

MEMBER:Rachel Da Costa

DATE:8 April 2024

PLACE OF DECISION:  Sydney

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

Statement made on 08 April 2024 at 3:22pm

CATCHWORDS
REFUGEE – protection visa – Tonga – political opinion – freedom of speech – fleeing economic crisis – fleeing climate change and rising sea level – claims written by acquaintance – economic reasons – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 65, 499
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 11 December 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant is a citizen of Tonga and applied for the visa on 10 October 2023. The delegate refused to grant the visa on the basis that the applicant is not a person in respect of whom Australia has protection obligations. 

   CLAIMS AND EVIDENCE

   Background

3. In his protection visa application form, the applicant provides the following details. He was born in [his home] city, Tonga in 1981. He has never been married. He has no relatives with whom he is in contact either within or outside Australia.

4. In Tonga, he always lived in [his home] city, Tongatapu province. He speaks, reads and writes Tongan and English. He is a Christian. In Tonga, he was a farmer. He completed High School in Tonga in [year].

5. He departed Tonga and arrived in Australia [in] July 2021 as a seasonal worker. He travelled on his Tongan passport.

   Evidence before the Department

   Claims for protection

6. In his protection visa application, the applicant makes the following claims:

   ·     He left Tonga because of (unedited):

   omy political opinion of government;

   oflee economic crisis;

   oin search of better economic stability;

   oflee climate change and rising sea level;

   ofreedom of speech and expression.

   ·     He experienced psychological, mental, verbal and economic harm and effects in Tonga.

   ·     He did not seek help because he feared retaliation.

   ·     He did not try to move to another part of the country because he had nowhere to go and no support.

   ·     If he returns, he thinks he will suffer the same as before and he has nowhere to go and no support.

7. The applicant provided a copy of the bio-data page of his Tongan passport but no other documents relevant to his claims for protection.

   Delegate’s decision

8. The applicant was not invited to an interview with the Department to discuss his claims. On 11 December 2023, the delegate made their decision. The delegate found that based on the information before them, they were not satisfied that the applicant is a person in respect of whom Australia has protection obligations.

   Evidence before the Tribunal

9. The applicant provided the Tribunal with a copy of the delegate’s decision, but no other documents in support of his application for protection.

   The hearing

10. The applicant appeared before the Tribunal on 4 March 2024 to give evidence and present arguments. He brought a cousin along with him as a support person but that person did not give evidence. The Tribunal hearing was conducted with the assistance of an interpreter in the Tongan and English languages. The Tribunal is satisfied that the applicant had an opportunity to participate in the hearing in a meaningful way.

    CONSIDERATION OF CLAIMS AND EVIDENCE

    The relevant law

11. 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.

12. 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.

13. 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).

14. 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.

15. 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

16. 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.

    Analysis, reasons and findings

17. The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

18. In the hearing, the applicant gave evidence that a woman called “[Ms A]” helped him to fill in his protection visa application form. The applicant works with this woman’s brother, which is how he was introduced to her. She is not a lawyer or migration agent and he did not pay her any money. The Tribunal asked the applicant whether he knew what it says in his protection visa application form and he responded, “some of it”. The Tribunal asked the applicant where [Ms A] got the information from that was contained in his protection visa application form and he said he didn’t know. He confirmed that everything in his application for a protection visa was true and correct as far as he knew.

19. In the hearing, the Tribunal discussed with the applicant his family, his life growing up, his employment in Tonga and Australia, his migration history and his reasons for not wanting to return to Tonga. As discussed further below, it became apparent to the Tribunal as the hearing progressed that much of the information contained in the applicant’s protection visa application form was incorrect. Nevertheless, the Tribunal considers that the applicant gave truthful evidence in the Tribunal hearing about his situation and his reasons for wanting to remain in Australia rather than returning to Tonga. The Tribunal also considers that the applicant was poorly advised, if not misled, by [Ms A] about his migration situation and options.

20. In the hearing, the applicant gave evidence that he came to Australia as a seasonal worker with a three-year visa. He worked on a [farm] in [NSW], and then as[another occupation], but he stopped work last year. He is not working at the moment and is being supported by the people he lives with, who are his cousin and his cousin’s wife. He has four cousins living in Australia, including the cousin who attended the Tribunal hearing as a support person.

21. The applicant gave evidence that in about June 2023, [Ms A] told him to apply for a protection visa before his visa expired. The Tribunal asked him why he applied for a protection visa and he responded that he was not aware when his visa expired. The Tribunal attempted to explore this with him further but he gave the same response and when asked if there were any other reasons he applied for a protection visa he said “no”.

22. The Tribunal asked the applicant if there were any reasons he feared returning to Tonga and he said he would like a protection visa because there is nothing back in Tonga for him if he returns. The applicant gave evidence that his father has passed away and before coming to Australia, he was caring for his mother in Tonga and did not have any work. The family survived by growing their own food and fishing and selling their produce in the market. His sister now looks after his mother who is diabetic and has high blood pressure. He also has two brothers in Tonga. One lives in the village with his mother and sister and one lives on another island. His brother and sister in the village work as farmers and have their own families.

23. He would like to stay in Australia to work and have a better life than if he goes back to Tonga. If he stays in Australia, he can earn money and financially support his family back in Tonga. His mother encouraged him to come to Australia to do this because they need his help. He does not have any fears about returning to Tonga but he was worried about the police in Australia arresting him when his visa expired. If he returned to Tonga, he would go back and live with his mother in their village.

24. The Tribunal put to the applicant that based on his evidence in the hearing, it sounded as though the reason he wants to remain in Australia is for better economic opportunities and he does not fear harm if he returns to Tonga. The Tribunal put to him that this might lead it to find that he does not meet the criteria for a protection visa because he does not face a real chance of serious harm or a real risk of significant harm if he returns to Tonga, and looking for better economic conditions is generally not enough to meet the criteria for a protection visa. The Tribunal offered the applicant an opportunity to respond to this but he declined.

25. The Tribunal also reminded the applicant of the other reasons he had listed in his protection visa application form as reasons he feared harm if he returned to Tonga. The Tribunal put to him that based on his evidence in the hearing, it might find that [Ms A] listed those things in his form but they were not actually reasons he gave her and he did not truly fear returning to Tonga for those reasons. The Tribunal invited the applicant to respond to this but he declined.

26. Based on the applicant’s evidence, the Tribunal accepts that the applicant left Tonga and came to Australia in search of better economic prospects, but it does not accept that he left Tonga due to his political opinion, or an economic crisis, or that he was fleeing the effects of climate change or due to a lack of freedom of speech and expression. The Tribunal finds that the applicant did not experience harm in Tonga. The Tribunal finds that the applicant does not fear returning to Tonga for any reason and that if he returns, he will live with his family in his village and he will be able to subsist in the way he did in the past.

    Does the applicant meet the refugee criterion?

27. Based on the applicant’s evidence in the Tribunal hearing, which the Tribunal accepts, it finds that he did not experience harm in Tonga in the past and he does not fear returning to Tonga for any reason. The Tribunal accepts that the applicant wishes to remain in Australia for better economic prospects so that he can help his family back in Tonga, but based on the evidence before it, the Tribunal finds that if the applicant returned to Tonga in the reasonably foreseeable future he would not face a real chance of serious harm for any reason.

28. Taking into account the findings set out above and the country information referred to in this decision, and having considered the applicant’s claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to Tonga now or in the reasonably foreseeable future that he faces a real chance of serious harm for any reason set out in s 5J(1)(a) of the Act, or for any other reason.

29. Accordingly, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution for any of the reasons set out in the Act, or for any other reason. As the Tribunal is not satisfied the applicant has a well-founded fear of persecution, it is not satisfied that the applicant meets the definition of refugee in s 5H(1). As the applicant does not meet the definition in s 5H(1), the Tribunal is not satisfied he is a person in respect of whom Australia has protection obligations under s 36(2)(a).

    Does the applicant meet the complementary protection criterion?

30. As the Tribunal has found that the applicant does not meet the refugee criterion in s 36(2)(a) of the Act, it has considered whether the applicant meets the criterion for the grant of a protection visa under the complementary protection criterion in s 36(2)(aa).

31. As the ‘real risk’ test under the complementary protection criterion imposes the same standard as the ‘real chance’ test under the refugee criterion,[1] for the same reasons as those set out above, the Tribunal finds that the applicant does not face a real risk of significant harm for any reason. Therefore, 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. Therefore, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

    [1] MIAC v SZQRB [2013] FCAFC 33

    Conclusion

32. 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).

33. 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).

34. 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

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

    Rachel Da Costa
    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.

    …