2401197 (Refugee)

[2024] AATA 1757

2401197 (Refugee) [2024] AATA 1757 (18 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2401197

COUNTRY OF REFERENCE:                   Tonga

MEMBER:Mr S Norman

DATE:18 April 2024

PLACE OF DECISION:  Sydney

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

Statement made on 18 April 2024 at 11:00am

CATCHWORDS

REFUGEE – Protection Visa – Tonga – failed to attend tribunal hearing – feared climate change and economic hardship – not satisfied the applicant has a well-founded fear of serious harm – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 36, 65, 424, 426, 499

Migration Regulations 1994, Schedule 2

CASES

MIAC v SZQRB [2013] FCAFC 33
Luu & Anor v Renevier (1989) 91 ALR 39
Randhawa v MILGEA (1994) 52 FCR 437
Yao Jing Li v MIMA (1997) 74 FCR 275

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 5 January 2024 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 12 September 2023. The Department delegate’s decision was not lodged with the Tribunal.

   CRITERIA FOR A PROTECTION VISA

2. 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.

   Mandatory considerations

3. 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

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

5. By hearing invitation letter dated 15 February 2024 (dispatched by email), the Tribunal advised the applicant it had considered all the material before it relating to his application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 18 April 2024. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. The Tribunal also sent two SMS hearing reminder texts to the applicant shortly prior to the hearing.

6. Regarding the hearing, the applicant did not respond to the Tribunal hearing invitation letter, as he was invited to do. Neither did he attend the Tribunal on the day and at the time of the scheduled hearing. Neither did the applicant respond to the Tribunal s.424(2) letter.

7. In the circumstances, after considering the evidence, and pursuant to s.426A of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

   The applicant’s claims:

8. In support of his Protection visa, the applicant’s claims included:

   ·     His political opinion was adverse to the Tongan government

   ·     he had received threats for speaking out against the government and the Royal family and he had experienced psychological, mental, verbal and economic harm

   ·     the applicant did not relocate within Tonga because there was no-where to go and no support

   ·     the applicant feared that should he return to Tonga, he would again be harmed. He does not think the authorities can or would protect him as the authorities do not have the resources

   ·     He also feared climate change and economic hardship - and he had no job security and was being ‘recruited as labour shortages for foreign countries’

   Assessing the applicant’s claims:

9. The applicant lodged a photocopy of the bio-data page of his Tongan passport with the Department. Based on this evidence, the Tribunal accepts the applicant is a citizen of Tonga, and that Tonga is his receiving country. However, the mere fact that an applicant claims to fear harm 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/s claimed. Further, the Tribunal is not required to accept uncritically any and all the allegations made by an applicant (Randhawa v MIEA (1994) 52 FCR 437, p.451).

10. That being said, the applicant did not provide sufficient detail to satisfy the Tribunal (ie) that he held views adverse to the authorities in Tonga, and/or that he had ever, or ever wished to express such views; or that he had a real chance of suffering any serious or significant harm for any other reason should he return to Tonga.  

11. It remains for the applicant to satisfy the Tribunal that all of the statutory elements for the grant of protection are made out (MIEA v Guo & Anor (1997) 144 ALR 567 p.596); and although the concept of the onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 p.288), the relevant facts of the individual case will have to be supplied by the applicant themselves, in as much detail as is necessary to enable the decision maker to establish the facts. A decision maker is not required to make the applicant’s case for him or her (Prasad v MIEA (1985) 6 FCR 155 pp.169-70; Luu & Anor v Renevier (1989) 91 ALR 39 p.45). The Tribunal acknowledges this guidance had been developed for the purposes of considering refugee protection claims, however, I am satisfied it is materially applicable to the assessment of complementary protection claims.

12. Importantly, and in relation to protection claims, it is also ‘the responsibility of the non-citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim’.[1]

    [1] See s.5AAA of the Act, ‘Non-citizen’s responsibility in relation to protection claims’.

13. That said, based on the claims he has provided, the Tribunal is not satisfied all the statutory elements for the grant of protection are made out. Accordingly, I do not accept the applicant has a well-founded fear of persecution for a reason prescribed in the Act; or 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.

14. Neither is there any issue, squarely raised by the evidence though not articulated, that has satisfied the Tribunal the applicant has a real chance of suffering serious or significant harm in Tonga.  

    Finding:

15. For the reasons given above, the Tribunal is not satisfied 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 considered the alternative criterion in s.36(2)(aa). However, and for the same reasons, the Tribunal is not satisfied the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).

16. There is no suggestion 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

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

    Mr S Norman
    Member