2404791 (Refugee)

2404791 (Refugee) [2024] AATA 2142 (13 May 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 2404791

COUNTRY OF REFERENCE: Tonga
MEMBER:Khanh Hoang
DATE:13 May 2024
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 13 May 2024 at 4:03pm
CATCHWORDS
REFUGEE – protection visa – Tonga – victim of a business robbery – physical assault – threat from employer – criminal gang – state protection – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 411, 426, 499
Migration Regulations 1994, Schedule 2
CASES
MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
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 8 February 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 29 November 2023. The delegate refused to grant the visa on the basis that that the applicant is not a person in respect of whom Australia has protection obligations.
On 18 April 2024, the Tribunal wrote to the applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the applicant to give evidence and present arguments at a hearing on 8 May 2024. The invitation stated that if they did not attend the hearing, the Tribunal may make a decision on the case without further notice.
On 19 April 2024, the applicant returned to the Tribunal the hearing response form. In response to the question of whether she would participate in the hearing, the applicant ticked the box: ‘No, I will not participate in the hearing and consent to the Tribunal making a decision on the papers without taking further steps to allow me to appear’. The applicant also filled out information on the form with respect to difficulties participating in the hearing. She stated that she had no car and asked if ‘we could do it on phone calls instead of coming into the office’.
Given the ambiguity in the applicant’s response, the Tribunal considered that the applicant had not waived her right to a hearing. On 22 April 2024, the Tribunal wrote to the applicant and stated that it could make arrangements for her to participate in a video hearing via MS Teams. The applicant responded on the same day and indicated that she would like a video hearing and asked for an interpreter to be available on the day. The Tribunal sent to the applicant a new hearing invitation on 23 April 2024, which included the details of, and instructions to, attend the video hearing.
On 29 April 2024, the Tribunal emailed the applicant and advised that it had set up a test call for 2 May 2024, at 2.30 pm, to ensure that the hearing could run smoothly. On 2 May 2024 at 9.31am the applicant emailed the Tribunal and stated that she was unable to attend the test call. The Tribunal rescheduled the test call for the following day, 3 May 2024, at 4pm.
On 3 May 2024, at 9.16am the applicant sent the Tribunal another hearing response form in which she indicated that she did not wish to participate in a hearing and consented to the Tribunal making a decision on the papers without taking further steps to allow her to appear before it. At 12.45pm, the Tribunal replied and asked for confirmation whether she still wished to attend a hearing, considering that a test call was scheduled for later the in day. The Tribunal’s records indicate that the applicant attended the test call at 4pm but was not able to successfully log into MS Teams.
On 7 May 2024, the applicant emailed to say that: ‘I been thinking for the Tribunal to just make the decision without me because last time I try to join the call but I can't so I'll be happy for the tribunal to make the decision’. The Tribunal wrote to the applicant and offered her the option of a further test call and to reschedule the hearing, given that she had stated that she had difficulty joining the test call previously. The Tribunal also asked the applicant to confirm whether she still wanted the Tribunal to proceed without taking further steps to invite her to a hearing. The applicant did not respond to that email. In these circumstances, the Tribunal did not cancel the scheduled hearing.
The applicant did not attend the hearing or contact the Tribunal to explain the failure to attend. Having reviewed the Tribunal file, I am satisfied that the applicant was properly invited to a hearing in accordance with s 441A(5), and that two separate SMS reminders were also sent to the applicant about the hearing. As noted above, the Tribunal has taken additional steps to provide the applicant with an opportunity to attend a hearing and to seek a rescheduling of the hearing. She has not availed herself of those opportunities.
In these circumstances, and pursuant to s 426A of the Act, I have decided to make a decision on the review without taking any further action to enable the applicant to appear before the Tribunal.
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations under refugee criterion (s 36(2)(a)) or the complementary protection criterion s 36(2)(aa)). 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 her country of nationality and 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
Claims and evidence before the Department
In her protection visa application, the applicant made the following claims for protection:
·the applicant came to Australia to save herself. For the last three years, she worked in [a business 1] in her district. She was a cashier for the [business 1] where she was responsible for ‘all the [money]’;
·one night when she was working after business hours, the [business 1] was broken into. [A number of] strangers entered the [business 1], they punched her several times and tied her to a chair, and took money;
·she woke up in hospital the following day and recovered from her injuries;
·when she returned to work, her boss blamed her for damage to the property and the money lost, which totalled $[amount];
·her boss did not believe her version of the story because the CCTV was malfunctioning, and he believed that she was involved with the group;
·her boss sent gangsters to punch her [property], warned her with violence, and started to harm her family;
·she did not make a report to the police because she believed it will take a long time to investigate, and ‘the group’ will continue to harm her and they threatened to fracture her hand if she did anything; and
·she continues to fear harm from her ex-boss.
Claims and evidence before the Tribunal
On 22 April 2024, the applicant provided two photographs to the Tribunal. These included a photo of a [visible injuries]. The email had as its title, “[that the swelling remains]”.
FINDINGS AND REASONS
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 (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169-70).
I have significant concerns about the applicant’s claims. The information and materials provided by the applicant to the Department and the Tribunal are lacking in substantial and sufficient detail to enable me to be satisfied she faces a real chance of persecution in Tonga or that there are substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to Tonga, there is a real risk that she will suffer significant harm.
In respect of the information she provided to the Department in her protection visa application, there is insufficient detail as to when she started working at the [business 1], the location of the [business 1], exactly when the assailants broke into the [premises], what their motivations to steal money and damage the [business 1] were. The applicant has not provided any documentary evidence of being admitted to, and discharged from the hospital, or indeed, evidence as to which hospital she attended.
The applicant provided insufficient information as to how often her boss threatened her, when and where he sent gangsters to punch her [property], and what harm they caused to her and her family. Although the applicant has provided two photographs to the Tribunal in which she claimed she was [beaten], she has not indicated when these photographs were taken, or who caused the injuries. I also note that it was not possible to discern from the photographs that they are depictions of the applicant herself. Having considered the photographic evidence, I do not consider that they overcome my concerns about the lack of detail in the applicant’s claims.
She has provided no further information on whether her fear of facing persecution in the future is owing to any of the reasons listed under s 5J(1)(a) of the Act. Nor has she provided any further information to suggest that she faces a real risk of significant harm if removed from Australia to Tonga.
Given the lack of detail identified above, and without more, it is difficult to determine the significance that can be attached to the applicant’s assertions. I am not satisfied, on the evidence before me, that the applicant has been persecuted in the past or that she has well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Nor am I satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia to Tonga, there is a real risk that the applicant will suffer significant harm.
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) or 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 2142

13 May 2024

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Immigration

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Judicial Review

Procedural Fairness

Natural Justice

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