2401227 (Refugee)

[2024] AATA 4094

2401227 (Refugee) [2024] AATA 4094 (23 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2401227

COUNTRY OF REFERENCE:                   Tonga

MEMBER:Angela Cranston

DATE:23 August 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 23 August 2024 at 11:20am

CATCHWORDS

REFUGEE – Protection Visa – Tonga – no adequate medical available treatment – cancer treatment – no evidence to suggest the applicant may face any discrimination for any reasons in accessing or attempting to access medical care or treatment – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5, 56, 65, 417, 499

Migration Regulations 1994, 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 3 January 2024 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2.The applicants who claim to be citizens of Tonga, applied for the visas on 28 August 2023. In her application, the first named applicant (the applicant) stated she left Tonga for the following reasons:

My political opinion of government
In search for better economic stability
Flee climate change and rising sea level
Flee domestic abuses

3.The second named applicant is the applicant’s young daughter and relied upon the applicant’s claims.

4.The delegate refused to grant the visas and the applicants applied for review.

5.The applicant appeared before the Tribunal on 26 July 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tonga and English languages.

6.The applicant presented medical documents and stated she had [cancer] and the health facilities in Tonga were not promising. She stated although she was currently in remission, there was no guarantee the cancer would not return. She stated she was diagnosed in August 2023 after she arrived in Australia in June 2023. When asked about her protection visa application, she stated the forms had been completed with the help of another person but she had not seen them. When asked what she told them, she said she told them she left Tonga to visit her sister. The Tribunal put to her that her protection visa application said she left Tonga because of her political opinion, in search of better economic stability, to flee climate change and rising sea levels, and to flee domestic abuses. She stated none of that was true. 

7.The applicant stated in Australia she was diagnosed with cancer and that was why she applied for protection. She stated she could not return to Tonga because of their medical facilities.  The Tribunal said the US Department of State said Vailoa Hospital in Nuku’alofa was the main hospital in Tonga, that compared with other small island nations, Tonga had generally high levels of access to healthcare due to significant support from Australia and New Zealand and that Nukualofa offered most general medical services such as pharmacy, dental, surgical, obstetric and gynaecologic services and that public hospitals provided approximately 89% of healthcare in Tonga and medical services offered by the government were free of charge. The Tribunal also said the United Kingdom had stated health facilities in Tonga were basic, the range of drugs was limited, and modern equipment was in short supply.  The Tribunal indicated it needed to consider if she was a refugee or would suffer significant harm if she returned to Tonga and that a medical condition may not make her a refugee. In addition, there may be no intention to inflict harm on her and the medical services in Tonga may be difficult for everyone.  She stated there was a history of [cancer] in her family and her mother had lost her life from [cancer].

8.The Tribunal put to her it needed to think about whether she was a refugee or would suffer significant harm. The applicant stated she understood medical issues were not necessarily in the protection category but asked if she could be helped with her condition.  

9.The Tribunal then talked to the applicant’s sister.  She stated all the applicant’s sisters were overseas and only her husband and her children were in Tonga.  She stated the applicant’s cancer may return and returning to Tonga was inappropriate since her family was in Australia and there was no treatment in Tonga.

1. After hearing, the Tribunal received the following from the Ministry of Health Government of Tonga.

   I write this letter to support [the applicant]'s application for extension of visa to remain in Australia due to Specialized and Monitoring of Medical treatment needs that is not available here in Tonga.

   With reference to medical report from Dr. [A] dated on 30th July, 2024. [The applicant’s] medical condition is [details deleted] which is confirmed that the specialized and monitoring treatment is not available in Tonga.

   Therefore, we support [the applicant]'s request so that she may receive specialized treatment and monitoring in Australia for a better health outcome of her disease.

Country information

Recent general information regarding the availability of healthcare in Tonga

1. In its 2020 Crime & Safety Report for Tonga, published on 10 June 2020, the US Department of State’s Overseas Security Advisory Council (OSAC) stated that:

   Vaiola Hospital in Nuku’alofa is the main hospital in Tonga. The islands of Vava’u, Ha’apai and ‘Eua also have hospitals. The hospital in Eua offers very limited medical services compared to those of Vava’u and Ha’apai. Compared to other small island nations, Tonga has generally high levels of access to healthcare due to significant support from Australia and New Zealand. The hospital in Nuku’alofa offers most general medical services such as pharmacy, dental, surgical, obstetric, and gynecologic services. Public hospitals provide approximately 89% of healthcare services in Tonga, with 6% made up by health centers. Approximately 5% of health services in Tonga are private, and more rudimentary than public services.

2. In a February 2021 travel advisory, the US Department of State provided the following information regarding the available health facilities in Tonga:

   Vaiola Hospital, a private “referral” hospital is in Tonga’s capital, Nuku’alofa, with a 24/7 emergency department, and with medical and surgical capabilities to respond to emergencies of differing levels, and is able to stabilize patients if needed to medevac overseas. All essential drugs are available according to the essential drug list, and if specific drugs are not available, there may be other alternative of the same brand available from six nearby private pharmacies.

   The islands of Vava’u, Ha’apai and ‘Eua have hospitals. The hospital in Eua offers very limited medical services compared to that of Vava’u and Ha’apai.

   Local residents with serious medical/surgical problems beyond capabilities available in Tonga are often referred to New Zealand for treatment.

   Medical services offered from Tonga Government/public hospitals are free of charge for all Tongans/naturalized Tongans, but varying fees are charged to non-Tongans or tourists at all health care facilities, public or private.

CRITERIA FOR A PROTECTION VISA

1. 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.

2. 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.

3. 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).

4. 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.

5. 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

1. 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

1. The issue in this case is whether the applicants have a well-founded fear of being persecuted for one or more of the five reasons set out in the Refugee definition in Tonga and, if not, whether there are substantial grounds for believing that as a necessary and foreseeable consequence of their being removed from Australia to Tonga, there is a real risk that they will suffer significant harm.

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

3. In her protection visa application, the applicant stated she left Tonga because of her political opinion, in search of better economic stability, to flee climate change and rising sea levels and to flee domestic abuse but at hearing withdrew those claims stating she had undergone treatment for [cancer] in Australia and was currently in remission and if the cancer returned, there was no adequate medical available treatment as could be found in Australia.

4. The Tribunal accepts that because the applicant is still undergoing monitoring treatment for [cancer], there is a real chance as opposed to a remote possibility  the applicant’s recent [cancer] may return. In addition, while the Tribunal accepts the required treatment she has had in Australia including monitoring treatment may not be available in Tonga, there is no evidence before the Tribunal to suggest the applicant may face any discrimination for any reasons in accessing or attempting to access medical care or treatment. Rather, the evidence before the Tribunal suggests the treatment is unavailable because of universally applied scarcity of resources. Therefore, the Tribunal accepts that while the applicant may suffer harm on the basis that she may not be able to access medical treatment, it is not for the essential and significant reason of one of the refugee grounds listed in s5J(1)(a).

5. Therefore, the Tribunal does not accept that the applicants have a real chance of serious harm for reasons of race, religion, nationality, membership of a particular social group or political opinion if they return to Tonga.  

6. Having concluded the applicants do not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).

7. While the Tribunal accepts the applicant may not be able to access medical treatment in Tonga, the evidence before the Tribunal does not suggest there is anyone who intends to deny the applicant medical treatment other than because of universally applied scarcity of resources.  Therefore, the harm she may face in not being able to access medical treatment does not mean there is a real risk that the applicant will be subject to torture, to cruel or inhuman treatment or punishment and/or degrading treatment or punishment that would amount to significant harm upon return to Tonga. Neither do the consequences of scarce medical resources mean the applicant will be arbitrarily deprived of her life; and there is no evidence, and nor was it argued that the death penalty will be carried out.

8. The Tribunal has some sympathy for the applicants who may or may not wish to make a request directly to the Minister pursuant to s417 of the Migration Act.

9. The Tribunal is not satisfied that the applicants are persons in respect of whom Australia has protection obligations under s.36(2)(aa).

10. There is no suggestion that the applicants satisfy 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 applicants do not satisfy the criterion in s 36(2).

DECISION

1. The Tribunal affirms the decision not to grant the applicants protection visas.

Angela Cranston
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.

1. 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.

2. 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.

…

1. Protection visas – criteria provided for by this Act

…

1. 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.

…