2400941 (Refugee)

[2024] AATA 2292

2400941 (Refugee) [2024] AATA 2292 (19 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2400941

COUNTRY OF REFERENCE:                   Tonga

MEMBER:Tania Flood

DATE:19 April 2024

PLACE OF DECISION:  Sydney

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

Statement made on 19 April 2024 at 11:56am

CATCHWORDS
REFUGEE – protection visa – Tonga – possible harm from Tongan husband – economic hardship – employment opportunities – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 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 dependant.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 January 2024 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 16 October 2023. The visa was refused on the basis that the delegate was not satisfied that there is a real chance or a real risk the applicant will suffer serious or significant harm if she returns to Tonga.  

3. The applicant appeared before the Tribunal on 18 April 2024 to give evidence and present arguments.

   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 under s.36(2)(a) or (aa) of the Act. 

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

    Summary of claims

12. According to information contained in the application for a Protection visa the applicant is a [age]-year-old Tongan citizen from [City 1].  She indicated she is divorced and that she is Christian. 

13. The applicant claims that she came to Australia on a temporary work visa.  She claims that she met and had a child with a Hindu man in Australia.  She claims that her family in Tonga are very upset about this and have said they will kill her if she returns to Tonga.  She states that the police will not be able to protect her against this harm.

    Delegates decision

14. On 28 November 2023 the Department corresponded with the applicant inviting her to provide additional information about her claims.  The applicant did not respond. 

15. The delegate was not satisfied that the applicant’s claims are genuine and rejected them in entirety. 

    Tribunal hearing

16. The applicant appeared before the Tribunal on 18 April 2024.  Discussions were held with her about her family background; her migration history in Australia; her current personal circumstances and the reasons why she fears returning to Tonga.  Her testimony is summarised as follows. 

17. Regarding her current circumstances, the applicant testified that she separated from her Tongan husband in 2021.  She said that her husband initiated the separation because he commenced a new relationship.  The applicant confirmed to the Tribunal that her husband is waiting for her to file divorce papers.  She said her husband remains living in Tonga.  

18. The applicant testified that she has three children from her marriage aged [age], [age] and [age].  She said that they live with the daughter of her late sister in her home village of [Village 1].  She said that sometimes their father picks them up for a visit but they blame him for their separation.  She said that her son works in the [specified] sector.  She confirmed to the Tribunal that she sends money to her children each week and she continues to have a strong relationship with them.    

19. The applicant testified that she has a new partner in Australia who is a citizen of Papua New Guinea and a Christian.  She testified that they have a [age] daughter together. 

20. The applicant testified that her parents are deceased and all her remaining siblings are living or working in New Zealand.  She said her siblings sent money home to her parents when they were alive.  She confirmed to the Tribunal that they have also assisted her financially in Australia. 

21. When asked why she fears returning to Tonga the applicant first indicated that she is afraid of her husband.  Upon further questioning she revealed that she does not want to face him and see him with another woman and she speculated that he might try to take her children away from her.  She also stated that she did not go back to Tonga when her work contract ended because she was suffering with kidney stones.  She said she has received treatment and her medical condition is now resolved although she still needs to go for check-ups.  She then stated that the main reason why she does not want to return to Tonga is because she won’t be able to find a good job in Tonga to enable her to raise her children. 

    FINDINGS AND REASONS

    Feared harm from family due to having a child with a Hindu man

22. In her application for the Protection visa the applicant claimed to fear harm from her family because she met and had a child with a Hindu man in Australia.  After hearing her oral evidence which is outlined above the Tribunal read aloud to the applicant the abovementioned written claims for protection and she appeared surprised and indicated those claims were not true.  She suggested that the agent who assisted her to lodge the application must have made up a different story.  In light of her testimony the Tribunal has not considered these claims any further.

    Possible harm from her Tongan husband

23. The applicant suggested to the Tribunal that her husband might try to physically harm her if she returns to Tonga as he has done so in the past.  In the course of further discussion she indicated that she doesn’t know what he thinks of her and she informed the Tribunal that he said to her that she should find a new partner.  She confirmed he is aware she has a new partner and a child born in Australia.  When asked if her husband has threatened her with harm in Australia she said that he previously called her and said he would advertise the fact that she has a new partner.  She confirmed to the Tribunal that this communication occurred a long time ago and he has since blocked any communication between them and she only retains phone contact with her children.   The Tribunal put it to the applicant that her claim that her husband will be motivated to harm her is not persuasive based on her testimony.  The applicant did not refute the Tribunal’s observation and merely reiterated that she fears she won’t find a good job in Tonga. 

24. The Tribunal accepts the applicant is separated from her Tongan husband and is now living with a new partner with whom she has a child.  While it may be true that he physically assaulted her in the past, based on her testimony the Tribunal is not persuaded that he will harm her if she returns to Tonga now or in the reasonably foreseeable future. Based on her testimony her husband initiated the separation, is living with a new partner and has demonstrated a desire to have no further contact with her.  In fact, according to the applicant he has requested that she file for a divorce.  While he may have made some derogatory comments to her regarding her new relationship a long while ago she has not put forward any persuasive evidence, either verbally or otherwise, to support that he continues to harbour any resentment toward her or that he is motivated to harm her in future.  Indeed the applicant made it clear to the Tribunal that her principal fear of returning to Tonga relates to her ability to find employment. 

25. The applicant also indicated during the hearing that her husband may try to take her children away from her but the Tribunal considers there is little likelihood this will occur.  She has testified that the children are living with her sister and while she stated that their father sometimes picks them up she gave no indication that he has attempted to force them into his care.  Indeed, as the Tribunal discussed with the applicant during the hearing two of the children have reached adulthood making this eventuality appear remote.   The Tribunal is not satisfied that the applicant’s husband is motivated to take her children away from her and it doesn’t accept that she will face serious or significant harm in Tonga for reasons related to this. 

26. In light of the above the Tribunal is not satisfied that there is a real chance or a real risk the applicant will suffer serious or significant harm at the hands of her Tongan husband if she returns to Tonga now or in the reasonably foreseeable future. 

    Economic hardship

27. At the core of the applicant’s unwillingness to return to Tonga is her fear that she will not find employment commensurate with her earning ability in Australia.  The Tribunal accepts the applicant will likely experience some financial difficulties on return to Tonga.   However, as discussed with her during the hearing there is no evidence before the Tribunal to support that she would be denied work for any of the reasons outlined in s.5J(1)(a) of the Act or that any harm she may experience will involve systematic or discriminatory conduct.   Nor is there evidence to support that any difficulties she may face would be for reason of any acts or omissions intentionally inflicted upon her with a view to causing her significant harm.   In any event, the Tribunal notes that the applicant conceded at hearing that her current partner and father of her youngest child, cares for the wellbeing of the child and will in all likelihood provide her with some financial assistance if she is required to return to Tonga.

28. While the Tribunal has some sympathy for the applicant it is not satisfied that the circumstances give rise to a finding that there is a real chance or a real risk she will suffer serious or significant harm for economic reasons.

29. The applicant did not claim to fear harm in Tonga for any other reason. 

    CONCLUDING PARAGRAPHS

30. 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).

31. 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 above 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 she 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).

32. 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

33. 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.

    …