2427953 (Refugee) - [2024] ARTA 785

2427953 (Refugee) [2024] ARTA 785 (16 December 2024)
DECISION AND
REASONS FOR DECISION
Respondent: Minister for Immigration and Multicultural Affairs

Tribunal Number: 2427953

Tribunal:General Member S Manera
Date:16 December 2024

Place:Sydney
Decision:The Tribunal affirms the decision under review.

Statement made on 16 December 2024 at 5:10pm

CATCHWORDS
REFUGEE – protection visa – Tonga – employment – homelessness – fear of physical assault –involvement in criminal gangs – deportee – natural disasters – drug trafficking – police corruption – separation from family in Australia – decision under review affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and transitional Provisions No1) Act 2024
Migration Act 1958, ss 5(1), 5H, 5J – 5LA, 36, 65, 359, 499
Migration Regulations 1994, Schedule 2
CASES
CHB16 v MIBP [2019] FCA 1089
CSV15 v MIBP [2018] FCA 699
GLD18 v MH [2020] FCAFC 2
MIAC v SZQRB (2013) 210 FCR 505
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 369 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF REASONS
APPLICATION FOR REVIEW

On 14 October 2024, the Administrative Appeals Tribunal (AAT) became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal.
This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs on 12 August 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
BACKGROUND
The applicant, who claims to be a national of Tonga, applied for the visa on 26 July 2024.
Evidence before the Department
On 30 July 2024 the applicant provided a statutory declaration dated 30 July 2024 to the Department in support of his claims for protection. In it, he claimed as follows:
·he arrived in Australia as [an age]-year-old [in] April 2014;
·his parents passed away in about 2019;
·the applicant believes his [siblings] reside in [Country 1];
·he needs Australia’s protection for the following reasons:
ohe has never worked in Tonga and believes there are no work opportunities for him there. In Australia he has worked [in two occupations];
othe applicant does not have a home to which he can return in Tonga. He would be homeless in Tonga. His parents have passed away. They had sold their land and assets. His siblings have moved to [Country 1];
ohis friends and family in Australia have warned him that Tonga is going through tough times and it is not safe for him. He may be arrested by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 2427953 (Refugee)

Details

AGLC: 2427953 (Refugee) [2024] ARTA 785
Case: [2024] ARTA 785
Decision Date: 16 December 2024

CaseChat Overview and Summary

The applicant, a national of Tonga, sought a protection visa from the Australian government, claiming fear of persecution in his home country. The application was lodged on 26 July 2024, and the delegate of the Minister for Immigration and Multicultural Affairs refused the application on 12 August 2024. The applicant has appealed this decision, arguing that he faces significant and serious harm in Tonga due to his status as a deportee, lack of employment opportunities, homelessness, and the threat of physical assault by criminal gangs. The case was heard on 12 November 2024.

The central legal issues in this case revolve around the definition of a "refugee" under the Migration Act 1958 (Cth) and whether the applicant meets the criteria for a protection visa. Specifically, the court needed to determine whether the applicant has a well-founded fear of persecution due to reasons such as race, religion, nationality, membership of a particular social group, or political opinion, and if so, whether this fear is significant and serious enough to warrant protection. Additionally, the court had to assess if the applicant would face a real risk of significant harm in Tonga, which includes threats to life, torture, or cruel or inhuman treatment, if returned to his home country.

In affirming the decision to deny the protection visa, the court considered the evidence presented by the applicant, including his statutory declaration, the submissions by his representative, and various documents from the Department of Foreign Affairs and Trade and Australian Aid. The court found that the applicant's claims of fear and serious harm were not sufficiently substantiated to meet the criteria for a protection visa. The court highlighted that the applicant's fears, while concerning, did not necessarily translate to a well-founded fear of persecution as defined by the Act. Furthermore, the court noted that the applicant had not returned to Tonga in the past decade and did not have any family, property, or assets there, which weakened his claims of significant harm and persecution.

The court's decision was to affirm the delegate's decision not to grant the applicant a protection visa, maintaining that the applicant did not meet the required criteria under the Migration Act.

Orders

Orders of the court

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Background

Background to the litigation

This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural Affairs on 12 August 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).BACKGROUND The applicant, who claims to be a national of Tonga, applied for the visa on 26 July 2024. Evidence before the Department On 30 July 2024 the applicant provided a statutory declaration dated 30 July 2024 to the Department in support of his claims for protection. In it, he claimed as follows: ·he arrived in Australia as [an age]-year-old [in] April 2014;·his parents passed away in about 2019;·the applicant believes his [siblings] reside in [Country 1];·he needs Australia’s protection for the following reasons:ohe has never worked in Tonga and believes there are no work opportunities for him there. In Australia he has worked [in two occupations];othe applicant does not have a home to which he can return in Tonga. He would be homeless in Tonga. His parents have passed away. They had sold their land and assets. His siblings have moved to [Country 1];ohis friends and family in Australia have warned him that Tonga is going through tough times and it is not safe for him. He may be arrested by the police due to his status as a deportee;othe authorities are intolerant of men like the applicant;ohe has heard that he could be beaten up and seriously hurt by gangs;othe Tongan police will not help him because they are scared of the Chinese and the gangs;oTonga has faced many natural disasters including the COVID-19 pandemic and natural disasters such as earthquakes and a tsunami. Natural disasters have caused economic and social difficulties for Tonga;odue to the recent disasters, there is no access to social services in Tonga. The applicant would have no access to money or support if he were to return to Tonga. On 6 August 2024 the following documents were provided to the Department in support of the application for protection:·written submissions by the applicant’s representative dated 5 August 2024;·another copy of the applicant’s statutory declaration dated 30 July 2024;·statutory declaration by the applicant’s aunt, [Aunt A], dated 5 August 2024; ·publication from the Department of Foreign Affairs and Trade (DFAT) titled ‘Tonga - Australia’s commitment to strengthening climate and disaster resilience in the Pacific’;·publication from Australian Aid titled ‘Pacific Risk Profile Tonga’; copy of Matangi Tonga Online search results on ‘Pacific Islands’ dated 4 August 2024 with links to articles and advertisements including:oPacific islands need stronger border against drugs traffickers (dated 1 August 2024); oScientists arrive at HTHH Volcano to research cause of powerful eruption (dated Wednesday 22 May 2024); oVacancy advertisement for a Climate Change Loss and Damage Officer. A summary of the representative’s submissions are as follows:·the applicant fears, due to a belief from his Australian-Tongan family and community and media outlets, that he would be exposed to significant and serious harm in Tonga. The Tongan authorities will fail to afford him the necessary protection;·the Tongan community and Tongan authorities are struggling with the ramifications of economic distress, a situation exacerbated by recent earthquakes and volcanic activities;·this confluence of adverse factors has apparently led to the Tongan authorities to seek and accept external support from nations including China;·there is a notable increase in the involvement of young Tongan men in drug trafficking across the Pacific. Reports from various media sources alleged criminal gangs deliberately prey on vulnerable young men from Tonga for their operations;·the Australian government has acknowledged a climate emergency, recognising the significant risk it poses to Pacific Island nations including Tonga;·the Australian government should take into account the broader socio-economic situation in Tonga, including the impact of natural disasters on its infrastructure and economy as well as the changing aspects of its relationship to foreign entities like China;·the applicant has not returned to Tonga in the past 10 years and does not have any family, property or assets in Tonga.

Evidence

Evidence Before The Court

The applicant, who claims to be a national of Tonga, applied for the visa on 26 July 2024. Evidence before the Department On 30 July 2024 the applicant provided a statutory declaration dated 30 July 2024 to the Department in support of his claims for protection. In it, he claimed as follows: ·he arrived in Australia as [an age]-year-old [in] April 2014;·his parents passed away in about 2019;·the applicant believes his [siblings] reside in [Country 1];·he needs Australia’s protection for the following reasons:ohe has never worked in Tonga and believes there are no work opportunities for him there. In Australia he has worked [in two occupations];othe applicant does not have a home to which he can return in Tonga. He would be homeless in Tonga. His parents have passed away. They had sold their land and assets. His siblings have moved to [Country 1];ohis friends and family in Australia have warned him that Tonga is going through tough times and it is not safe for him. He may be arrested by the police due to his status as a deportee;othe authorities are intolerant of men like the applicant;ohe has heard that he could be beaten up and seriously hurt by gangs;othe Tongan police will not help him because they are scared of the Chinese and the gangs;oTonga has faced many natural disasters including the COVID-19 pandemic and natural disasters such as earthquakes and a tsunami. Natural disasters have caused economic and social difficulties for Tonga;odue to the recent disasters, there is no access to social services in Tonga. The applicant would have no access to money or support if he were to return to Tonga. On 6 August 2024 the following documents were provided to the Department in support of the application for protection:·written submissions by the applicant’s representative dated 5 August 2024;·another copy of the applicant’s statutory declaration dated 30 July 2024;·statutory declaration by the applicant’s aunt, [Aunt A], dated 5 August 2024; ·publication from the Department of Foreign Affairs and Trade (DFAT) titled ‘Tonga - Australia’s commitment to strengthening climate and disaster resilience in the Pacific’;·publication from Australian Aid titled ‘Pacific Risk Profile Tonga’; copy of Matangi Tonga Online search results on ‘Pacific Islands’ dated 4 August 2024 with links to articles and advertisements including:oPacific islands need stronger border against drugs traffickers (dated 1 August 2024); oScientists arrive at HTHH Volcano to research cause of powerful eruption (dated Wednesday 22 May 2024); oVacancy advertisement for a Climate Change Loss and Damage Officer. A summary of the representative’s submissions are as follows:·the applicant fears, due to a belief from his Australian-Tongan family and community and media outlets, that he would be exposed to significant and serious harm in Tonga. The Tongan authorities will fail to afford him the necessary protection;·the Tongan community and Tongan authorities are struggling with the ramifications of economic distress, a situation exacerbated by recent earthquakes and volcanic activities;·this confluence of adverse factors has apparently led to the Tongan authorities to seek and accept external support from nations including China;·there is a notable increase in the involvement of young Tongan men in drug trafficking across the Pacific. Reports from various media sources alleged criminal gangs deliberately prey on vulnerable young men from Tonga for their operations;·the Australian government has acknowledged a climate emergency, recognising the significant risk it poses to Pacific Island nations including Tonga;·the Australian government should take into account the broader socio-economic situation in Tonga, including the impact of natural disasters on its infrastructure and economy as well as the changing aspects of its relationship to foreign entities like China;·the applicant has not returned to Tonga in the past 10 years and does not have any family, property or assets in Tonga.

Decision

Reasons for decision

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.Date of hearing: 12 November 2024Representative: Mrs Wendy Jennifer MilojkovicATTACHMENT - Extract from Migration Act 19585 (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 familyFor 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 familyFor 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.…

Ratio Decidendi

Legal Principle Established

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