2400462 (Refugee)

2400462 (Refugee) [2024] AATA 4295 (2 April 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Davor Balder
CASE NUMBER:  2400462
COUNTRY OF REFERENCE:                   Tonga
MEMBER:Khanh Hoang
DATE:2 April 2024
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 02 April 2024 at 10:56am
CATCHWORDS
REFUGEE – protection visa – Tonga – fear of harm from gang from neighbouring village – house broken into, applicant attacked, belongings stolen and car damaged – delay in applying for protection – vague and inconsistent claims and evidence – adverse inference for late claims – no public information about gang – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1), (2), 5LA, 36(2)(a), (aa), (2A), (2B)(b), 65, 423A
Migration Regulations 1994 (Cth), Schedule 2
CASES
Chan Yee Kin v MIEA (1989) 169 CLR 379
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo (1997) 191 CLR 559
MIMA v Rajalingam (1999) 93 FCR 220
Prasad v MIEA (1985) 6 FCR 155
Subramaniam v MIMA (1998) VG310 of 1997
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 20 December 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Tonga, applied for the visa on 1 September 2023.
The applicant appeared before the Tribunal on 12 March 2024 to give evidence and present arguments. The hearing was conducted without the assistance of an interpreter, as the applicant did not request one and preferred to give his evidence in English.
The applicant was represented in relation to the review.
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under either the refugee criterion or complementary protection criterion. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–6) and ss 5K–LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Applicant’s identity and country of reference
Based on a copy of the applicant’s passport available on the Department’s file, and in the absence of any other evidence to the contrary, I find that Tonga is the applicant’s country of nationality and his receiving country for the purposes of refugee and complementary protection assessments.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
Evidence before the Department
In his protection visa application (PV application), the applicant made the following claims for protection:
·he has a house in a little village in Tonga that is close to the bush;
·his house was broken into by a gang, he woke up and offered resistance, but the gang attacked him;
·the gang stole all of his belongings, and his car was damaged by the gang;
·he fears that the gang would retaliate and kill or severely harm him if he were to return to Tonga;
·they attacked his property because it is close to the bush and therefore easy to attack; and
·he reported the matter to the police but nothing further was done.
On 29 September 2023, the Department sent the applicant correspondence inviting him to provide additional information in support of this claims under s 56 of the Act. That invitation advised the applicant that his claim lacked substantiating details such as dates, locations and supporting documentation. In response, the applicant provided a submission to the Department in the form of a statutory declaration dated 23 October 2023 that can be summarised as follows:
·an incident occurred [in] November 2020 when a group of seven gangsters from another village called [Village 1] burglarised his house by breaking down the door;
·the gang took all of the possessions in his house and his car, after which they burnt his car;
·the assailants were strangers to the applicant. He remembers their faces but does not know their names, where they live or any other information about them. After the incident, he learned that they were from the [Name] gang;
·his house in [Village 2] is close to the gang’s house, although he lived in a different village from the village of [Village 1] where the gang is located. It takes around 30 minutes to get to the other village from this village;
·he reported the matter to police on the same day at around 2.45am, at [Town], but he did not receive any further response from the police; and
·he fears that the gang will attack him again because they remember him and his house is close to their place.
The delegate refused the grant of a protection visa as they found that the applicant’s claims were not credible. The delegate was further satisfied that the applicant has access to effective protection measures in Tonga under s 5LA, and as such he does not have a well-founded fear of persecution under s 5J(2) and is therefore not a refugee. In relation to the complementary protection criterion, the delegate was satisfied that the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm as provided for in s 36(2B)(b).
Evidence before the Tribunal
Pre-hearing submissions
In his pre-hearing submission to the Tribunal, the applicant provided a further statement, dated 29 February 2024. The contents of that statement can be summarised as follows:
·his house in [Village 2] was burglarised by the [Name] gang, and everything of value in his home was stolen. He was targeted because he resisted the criminal activities of the gang;
·he reported the incident to police in [Town] but he fears reprisals from the gang who operate with impunity throughout Tonga, including in the drug trade. The gang know who he is, and he will be tortured and killed if he returns;
·he belongs to a social group in Tonga who are perceived to be wealthy due to land ownership, this perception has made him a target for criminal elements seeking to exploit his perceived wealth; and
·he fears that the Tongan police force lacks sufficient manpower and vehicles to provide a rapid response to criminal activities, leaving individuals like him vulnerable to ongoing threats and violence.
Along with his statement, the applicant provided the following pieces of country information:
·The Organised Crime Index Country Profile on Tonga;
·News article titled Tonga Police warn public of crime spike in 2023 from Matangi Tonga Online, dated 30 August 2023; and
·Blog post authored by Dr Henry Ivarature, titled Tonga’s drug problem draws royal attention, dated 11 November 2021.
The applicant’s background
The applicant is now [Age] years old. He comes from a family of [brothers and sisters], of whom [some] are [adopted]. The applicant’s parents are alive and continue to reside in Tonga. The applicant is educated to high school level and worked in farming and [work sector] prior to arriving in Australia. The applicant stated that he has been involved in the seasonal worker program, going back and forth between Australia and Tonga. The applicant’s first trip to Australia was in 2017, and he took another trip to Australia in February 2020. He last entered Australia [in] November 2021 on a seasonal worker visa which was in effect for nine months before it was extended. He applied for a protection visa on 1 September 2023.
The claimed burglary
At the hearing, I asked the applicant to give a summary of why he feared returning to Tonga. The applicant stated that he fears he will be killed because there is a gang that burned his house and took his car. He stated that the gang is known as the [Name] gang and that he knew ‘very well’ the head of the gang. He is from a national tribe that is ‘noble’ and is respected everywhere he goes, but this gang does not respect anyone.
The applicant gave evidence that, early on [a] morning [in] November 2020, he was asleep in his lounge room and awoke to the smell of smoke. The only thing that was close by was his wallet. The applicant grabbed his wallet and ran outside by which time his house was already on fire. He saw assailants getting into his car. His neighbour rang the police who came but when the police saw the gang members they were scared, and then turned off their lights and then left. The applicant claimed that he took his bicycle and rode to the police station to make a report. He claimed that one of the policemen at the station was a brother of one of the gang members that came and burned his house, and consequently, he was not given any documentation.
The applicant claimed that there were seven assailants involved in the burglary. He stated that he initially saw three of the assailants and he recognised two of their faces, and there were four others. They took the wheels of his car and burned his car. I referred the applicant to the statutory declaration he provided to the Department, in which he stated that the assailants were strangers to him, and he didn’t know anything about them but now he was stating that he knew their faces and they were from the gang. I asked the applicant where he knew the faces from, and he stated he knew them from school. When I asked why he did not include this information in his earlier statutory declaration, the applicant stated that he did not know it was important and he only wrote down that it was seven people. Later in the hearing, I put to the applicant that in his previous statements he stated that he had only learned that they were from the [Name] gang after the burglary incident, whereas his evidence now was that he knew them before the incident. The applicant claimed that on the day of the incident he did not think properly but he can only think that the assailants were from the gang because of their clothing and their marked car.
I asked the applicant whether he confronted the assailants during the claimed burglary. The applicant stated that he did not confront the assailants because there were seven of them. He ran and hid in banana trees at the back of the property and watched them take possessions from his house before they burned it down. He stated that this was all about money. I put to the applicant that in his PV application, he had stated that during the burglary, he woke up and resisted the gang, but they attacked him, but now he was claiming that he did not resist the gang. The applicant responded that what he meant was that the gang had people at the airport, and they ‘mark’ people who have money. He stated that if they ask for money and a person does not give them money, they might be targeted.
I also put to the applicant that he had not, at any time prior to the hearing, claimed that his house had burned down and asked him why that was the case. The applicant stated that he did not think it was important until now. When I stated that the matter of his house being burned down would appear to be quite serious, the applicant stated that he had just written it down and hoped that he would get protection.
I referred the applicant to his claims that the [Name] gang operates with impunity in Tonga and are involved in the drug trade. I asked whether, if the gang was as large as the applicant claims, there would be any news reports about them. I asked the applicant if the Tribunal were to conduct an online search for any information about the gang, whether it would find any information. The applicant replied that it was unlikely that the Tribunal would find any information.
Report to the police
I asked the applicant to confirm when he went to the police. The applicant stated that he went to the police station around 2.45am. I asked the applicant whether the police station would have been open at 2.45am and the applicant stated that the police station was open 24 hours. The police station is in [Town], which is a nearby suburb. He stated that he talked to the police and gave them a report – and although he did not want to mention any names – one of the policemen has a brother who is a member of the [Name] gang. For this reason, the applicant did not receive any documentation or assistance from the police. After he was seen by the policeman, the applicant did not approach the police any further and went to hide with his friend because the gang was a very big group.
Hiding
The applicant claimed that because everything, including his house and car had been burned down, he had to seek refuge at a friend’s house to avoid the gang. He claimed that he remained in hiding with his friend for over a year until he left for Australia and did nothing but stay inside the house and cook for his friend. He claimed that the friend was working in the office of Seasonal Worker Program (SWP) and assisted him with his application to come to Australia on the SWP. The applicant stated that he was already ‘marked’ by the gang and he could not return and it is not possible for him to hide.
Motivation of the gang members to target the applicant
The applicant confirmed that the [Name] gang members lived in [Village 1], which is close to the applicant’s house in [Village 2]. I asked the applicant whether it took 30 minutes to reach the applicant’s village from [Village 1] by car or by foot, to which the applicant agreed it could be 30 minutes by car or foot. I showed the applicant a printout from Google Maps which indicated that the distance from [Village 2] to [Village 1] was around 1.7km or about 30 minutes by foot. The applicant agreed with that assessment.
I asked the applicant why he thought the gang had attacked him. I alerted him to his prior evidence in his PV application that his house was targeted because it was close to a bush and was an easy target, whereas in his statement submitted prior to hearing he claimed to have been targeted as a member of a particular social group due to his perceived wealth and land ownership. I asked the applicant why, if the gang members were living so close to him for a long period, had they not targeted him earlier. The applicant stated that he was not sure why he was not targeted earlier. He thinks that once he got his own land, house and car he became a target. I asked if the gang perceived that he was from a rich family, whether other members of his family have been targeted. The applicant stated that the gang have not harmed his family, and that they are only after him as the first or second son.
I asked the applicant why the gang would still be interested in him given that it has been some four years since the burglary. The applicant stated that once you are ‘marked’ it will never go away. He claimed that that as soon as he arrives home the gang will be waiting for him at the airport and that they will find him and kill and it doesn’t matter how long it has been.
Delay in applying for protection
I asked the applicant why he had waited almost two years in Australia before applying for protection if he was so fearful of returning to Tonga. He stated that he did not know there was such a thing as a protection visa. He stated that he was already thinking that if he could not find anything that he was not going to return to Tonga. I asked why he did not try and find out information earlier about protection visas, he stated that he was not good with systems. I put to him my concerns that his delay in making a protection visa application might cause me to have some concerns about the depth of his fear of persecution. The applicant did not respond when I raised this concern.
Representative’s submissions
The applicant’s representative submitted that his client belongs to a ‘tribe’ who owns land just like royalty in Tonga. He submitted that there are criminal elements in Tonga that are known to exist and that there are many reports about them, and they have links to cartels in Colombia. He stated that there are problems with systemic corruption in Tonga. The representative claimed that the applicant was suffering from PTSD and other psychological trauma because of his experiences in Tonga and that he does not remember everything at first glance, but he has sought to provide fresh evidence to the Tribunal. The representative submitted that he would not have travelled from Melbourne and Brisbane to attend the hearing if he did not think his client was genuine.
FINDINGS AND REASONS
Credibility
In determining whether an applicant is entitled to protection in Australia, it is necessary to make findings of facts on relevant matters. In assessing the credibility of the applicant’s claims, the Tribunal accepts that the benefit of the doubt should be given to asylum seekers who are generally credible but unable to substantiate all of their claims. The Tribunal is also mindful that if it makes an adverse finding in relation to a material claim made by the applicant, but is unable to make that finding with confidence, it must proceed to assess the claim on the basis that it might possibly be true.[1]
[1] MIMA v Rajalingam (1999) 93 FCR 220.

The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that 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. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify, or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant.[2]
[2] MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70.
Further, section 423A of the Act provides for circumstances in which the Tribunal is required to draw an adverse inference about new claims or evidence. If an applicant raises a claim or presents evidence that was not raised or presented before the primary decision was made, then the Tribunal is to draw an inference unfavourable to the credibility of that claim or evidence, if it is satisfied that the applicant does not have a reasonable explanation why the claim was not made or evidence not presented before the primary decision was made.
New evidence and claims presented to the Tribunal
At hearing I discussed with the applicant the operation of s 423A of the Act. I explained to the applicant that he had presented new evidence and claims that were not previously presented to the Department. This included evidence that:
·his house was burned down by members of the [Name] gang;
·he recognised at least two members of the gang during the burglary;
·the police member whom he approached had a brother in the gang; and
·he went into hiding for a year at his friend’s house during which time he was in complete hiding.
The applicant also introduced a new claim before the Tribunal that he was targeted because of his membership of a particular social group in Tonga, being those who are perceived to be wealthy due to their ‘noble’ status and land ownership, and that this perception has made him a target for criminal elements seeking to exploit his perceived wealth.
I have considered the applicant’s explanations as to why he did not raise these claims and evidence earlier. I have considered his explanation that he wrote whatever was on his mind in the hopes of obtaining protection and that he was now presenting a fuller account of his claims before the Tribunal. However, in the context of the applicant’s claims, these are such central and critical matters that I do not consider it reasonable for the applicant to not have raised them earlier. This is particularly the case where the applicant has retained legal representation from the commencement of his application with the Department. As I do not consider that the applicant has a reasonable explanation as to why the claims and evidence were not presented before primary decision was made, I have drawn an inference unfavourable to the credibility of those claims and evidence.
Credibility findings
In addition, when I consider his claim in more closely, I am unconvinced of its credibility. The paragraphs that follow outline my concerns relating to inconsistencies, omissions, and the shifting nature of the applicant’s evidence.
First, I have concerns about the applicant’s account of the claimed burglary on his house. In his PV application and statutory declaration to the Department, the applicant stated that gang members broke down the door to his house, that goods in his house were stolen and that his car was set on fire. He did not, at any point prior to the hearing, claim that his house was burned down by the gang. As noted above, I do not accept the applicant’s explanation that he did not think it was important to include such information. If his house was burned down, I consider this to be more serious than losing his car or possessions, and a matter I would have expected to be raised earlier in the process.
Second, the applicant initially claimed before the Department that he did not know who the assailants were that attacked his house and only found out afterwards that they were members of the [Name] gang. This was inconsistent with the evidence he presented at hearing that he knew the leader of the gang, and the faces of at least two members of the gang who were present at the burglary. He also provided inconsistent evidence about whether he engaged with the assailants during the claimed burglary. Before the Department, the applicant claimed that he had woken up and offered resistance but that the gang members attacked him. This was inconsistent with his evidence at hearing that he offered no resistance at all because there were seven assailants.
Third, I have concerns about the shifts in the applicant’s evidence about why the [Name] gang were, or would remain, motivated to harm him. In his PV application, the applicant claimed that his house was an easy target because it was close to bushland. He also claimed that the gang will remember him because his house was close to their place. Before the Tribunal, the applicant sought to claim that the gang were after him because of his membership of a particular social group, namely his ‘tribe’ and those ‘perceived to be wealthy due to land ownership’. I am not convinced if the applicant was targeted due to membership of his ‘tribe’ and his or his family’s wealth, that he and his family members would have been able to live near the gang members for many years, without any adverse incidents. Indeed, the applicant conceded at hearing that his house was some 1.7km away from the where the gang members were residing in [Village 1]. The applicant also claimed that the gang has a presence at the airport and they ‘mark’ people who have money. If this were the case, the applicant has not explained why he was not targeted previously given his prior trips to Australia and back.
Fourth, I have concerns about whether the [Name] gang itself exists. The applicant claimed that the gang operated with impunity in Tonga and are involved in the drug trade. The applicant’s representative asserted that the ‘criminal element’ in this case is known to exist and that there are many reports that they operate and are linked to cartels in Colombia. While I accept on the country information submitted by the applicant that there are gangs involved with drugs in Tonga there is nothing before me to suggest that one of these gangs is the [Name] gang, as the applicant and his representative appear to suggest. Indeed, I could not locate any country information on the existence of the [Name] gang, despite the applicant’s assertions that they are a large and powerful gang who operate with impunity.
I have considered the country information submitted by the applicant stating that crime and theft occur in Tonga, and I accept that is the case. Notwithstanding, I find the applicant’s account of the claimed burglary to be entirely unconvincing and not credible. In reaching this conclusion, I have considered the representative’s submissions that the inconsistencies, shifts in evidence, and failure to present evidence earlier in the process can be explained by the applicant suffering from PTSD and psychological trauma. However, the applicant has not provided any documentary evidence or otherwise to suggest that he suffers from such. This assertion, without more evidence, does not overcome my concerns regarding the lack of credibility in the applicant’s claims.
Delay
I have further considered the issue of delay. I have considered the applicant’s explanation as to why it took him nearly two years to apply for protection. I do not accept the applicant’s explanation that he did not know the systems and did not know about protection visas. By the applicant’s own evidence, he has been in and out of Australia on seasonal worker visas in the past and I consider that he would have had some familiarity with Australia’s migration system. Moreover, I consider that if the applicant had been in hiding with his friend for over a year, and if the applicant feared being killed by the gang as soon as he were to step off the plane back in Tonga, that he would have taken steps to seek out protection sooner.
I note that in Subramaniam v MIMA (1998) VG310 of 1997, the Court held that even a 3-month delay in the lodgement of a protection visa application is a legitimate matter to consider when assessing the genuineness or depth of an applicant’s fear of persecution. Accordingly, I consider his delay of nearly two years in lodging a protection visa application in this case suggests that the applicant lacked a genuine fear of persecution in Tonga.
Findings of fact
I find that the applicant was not a victim of a burglary [in] November 2020 perpetrated by members of the [Name] gang. I do not accept that the applicant was targeted by a gang for his membership of a particular social group, namely his ‘tribe’, or those of ‘noble’ status ‘perceived to be wealthy due to land ownership’. I do not accept that his house and car were burned and destroyed, that all his possessions were taken away, or that he needed to seek protection and assistance from the police. I do not accept that the applicant was in hiding with his friend for over a year before coming to Australia because he feared further harm from the [Name] gang. Indeed, I do not accept, on the evidence before me, that the [Name] gang exists, nor that it acts with impunity and is involved in the drug trade as the applicant has claimed. In essence, I do not accept any of the applicant’s claims for protection.
It follows that I do not accept that he has been harmed for any reason mentioned in
s 5J(1)(a), including for any reason related to his ‘tribe’ or membership of a particular social group in the past.
Refugee criterion
Under s 5J(1), a person has a ‘well-founded fear of persecution’ if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she 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 is taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–5LA.
In determining whether an asylum seeker has a ‘well-founded fear of persecution’ s 5J(1)(a) contains a subjective requirement that an applicant, in fact, holds a fear of being persecuted. Further, s 5J(1)(b) imposes an objective standard that there be a real chance the applicant will be persecuted if returned to his or her receiving country. A ‘real chance’ is one that is not remote or insubstantial or a far-fetched possibility. However, a person can have a well-founded fear even if the possibility of the persecution occurring is well below 50%.[3]
[3] Chan Yee Kin v MIEA (1989) 169 CLR 379.
The applicant does not have a genuine fear of being persecuted. Based on my findings above, there is no reason he would have the subjective fear of being harmed by any gang or criminal element in the reasonably foreseeable future contemplated in s 5J(1)(a) of the Act. On the basis of the findings of fact above, I also find that the applicant does not have a real chance of suffering any harm, let alone serious harm, in the foreseeable future and does not meet s 5J(1)(b).
The applicant does not have a well-founded fear of persecution as defined in s 5J of the Act. Therefore, he does not meet the meaning of ‘refugee’ set out in s 5H of the Act.
Complementary protection criterion
Section 36(2)(aa) requires an applicant to have a ‘real risk’ of suffering significant harm. ‘Significant harm’ for these purposes is exhaustively defined in s 36(2A): s 5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. ‘Cruel or inhuman treatment or punishment’, ‘degrading treatment or punishment’, and ‘torture’, are further defined in s 5(1) of the Act.
The ‘real risk’ test imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’.[4] I have found above that the applicant does not face a real chance of persecution in Tonga now or in the reasonably foreseeable future. For the same reasons, I am not satisfied there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to Tonga, there is a real risk the applicant will suffer significant harm.
[4] MIAC v SZQRB [2013] FCAFC 33.
Conclusion
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Khanh Hoang
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.
…

[2024] AATA 4295

2 April 2024

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Immigration

Administrative Law

Statutory Interpretation

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Appeal