Last Updated: Friday, 22 August 2014, 15:07 GMT

RRT Case No. V96/04080

Publisher Australia: Refugee Review Tribunal
Author Refugee Review Tribunal (RRT)
Publication Date 5 August 1996
Citation / Document Symbol V96/04080
Cite as RRT Case No. V96/04080, V96/04080, Australia: Refugee Review Tribunal, 5 August 1996, available at: http://www.refworld.org/docid/3ae6b6c20.html [accessed 23 August 2014]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.
REFUGEE REVIEW TRIBUNAL
DECISION AND REASONS FOR DECISION

Citation:V 96/04080

Geo: Tonga

Tribunal: Domenico Calabro

Date: 5 August 1996

Place: Melbourne

Decision: The Applicant and the persons included in her application, are refugees. The Tribunal sets aside the decision under review and remits the application for reconsideration with the direction that the Applicant and the persons included in her application must be taken to have satisfied the criterion that they are persons to whom Australia has protection obligations under the Refugees Convention. The application is successful.

BACKGROUND:

This matter concerns decisions made by a delegate of the Minister for Immigration and Ethnic Affairs ("the Minister") to refuse to grant the Applicant Australia's protection as a refugee, as provided for under the Migration Act 1958 ("the Act")

The Applicant is a 32 year old married but separated woman from Tonga. She arrived in Australia with her husband (who is a Fijian national) from Tonga mid-1989, on a current visitors visa.

The Applicant sought protection as a refugee by application lodged with the Department of Immigration and Ethnic Affairs ("the Department") on 29 September 1994. The decision to reject the application was made on 4 September 1995. The Applicant was notified by letter of the same date and applied for review of the decisions to this Tribunal on 27 September 1995.

JURISDICTION AND STANDING:

The Tribunal is satisfied that the application for review has been validly made, and that the Tribunal has jurisdiction to review the decisions. (see s411; s414 of the Act).

THE LAW:

On 1 September 1994 the migration Reform Act 1992 ("the MRA"), by amendment to the Act, introduced a visa known as a protection visa for people who seek protection as refugees: see s. 36 of the Act. This visa replaces the visas and entry permits previously granted for that purpose.

The prescribed criteria for the grant of a protection visa are set out in Part 866 of Schedule 2 of the Migration Regulations ("the Regulations"): see s. 31 (3) of the Act and r. 2. 03 of the Regulations.

It is a criterion for the grant of a protection visa that at the time of application the Applicant claims to be a person to whom Australia has protection obligations under the Refugees Convention and either makes specific claims under the Convention or claims to be a member of the same family unit of a person who is also an Applicant and has made such claims: cl. 866. 211 of Schedule 2 of the Regulations.

It is also a criterion for the grant of a protection visa that at the time of decision the Minister is satisfied that the Applicant is a person to whom Australia has protection obligations under the Refugee Convention: cl. 866.221 of Schedule 2 of the Regulations.

The remaining criteria for the grant of a protection visa are, generally speaking, that the Applicant has undergone certain medical examinations and that the grant of the visa is in the public and the national interest: cl.866.22 of Schedule 2 of the Regulations.

"Refugees Convention" is defined by cl. 866.111 of Schedule 2 of the Regulations to mean the 1951 Convention relating to the Status of Refugees ("the Convention") as amended by the 1967 Protocol relating to the status of Refugees ("the Protocol"). As a party to both these international instruments, Australia has protection obligations to persons who are refugees as therein defined.

So far as is relevant to the present application, Article 1A(2) of the Refugees Convention defines a refugee as any person who:

"owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it."

This definition of a refugee contains various elements.

Outside the country of nationality. Firstly, the definition included only those persons who are outside their country of nationality or, where the Applicant is a stateless person, country of former habitual residence. The Applicant in this case meets that requirement.

Well-founded fear. Secondly, an Applicant must have a "well-founded fear" of being persecuted. The term "well-founded fear" was the subject of comment in Chan Yee Kin v. The Minister for Immigration and Ethnic affairs (1989) 169 CLR 379 (Chan's case). It was observed that the term contains both a subjective and an objective requirement.

"Fear" concerns the Applicant's state of mind, but this term is qualified by the adjectival expression "well-founded" which requires a sufficient foundation for that fear (at 396).

The Court in Chan's case held that a fear of persecution is well-founded if there " is a real chance that the refugee will be persecuted if he returns to his country of nationality" (at 389 and 398, 407, and 429).

It was observed that the expression "a real chance'… clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring …" (at 388) and though it "does not weigh the prospects of persecution… it discounts what is remote or insubstantial " (at 407). Therefore, a real chance of persecution may exist notwithstanding that there is less than a 50 per cent chance of persecution occurring.

The Full Court of the Federal Court in Minister of state for Immigration, Local Government and Ethnic Affairs v. Che Guang Xiang, No. WAG 61, unreported 12/8/94, per Jenkinson, Spender and Lee JJ (p. 16) said" A real chance' that persecution may occur includes the reasonable possibility of such an occurrence but not a remote possibility which, properly, may be ignored. It is not necessary to show that it is probable that persecution will occur…"

Persecution. Thirdly, an Applicant must fear "persecution". The term "persecution" is not defined by the Convention. Not every form of harm will constitute persecution for Convention purposes.

The Court in Chan's case spoke of "some serious punishment or penalty or some significant detriment or disadvantage" if the Applicant returns to his or her country of nationality (at 389). Likewise, it stated that the "notion of persecution involves selective harassment' whether "directed against a pThe view of the High Court, in Chan's case, is that in some cases, infringement of social. Political and economic rights will constitute persecution in Convention terms, while in other cases it will not. The Court did not set out any guidelines by which it could be determined which such infringements are to be considered persecution and which are not, other than the reference by Mason CJ to "some serious punishment or penalty or some significant detriment or disadvantage".

Convention grounds. The Applicant must fear persecution or be at risk of serious harm for a Convention reason, viz. For reasons of race, religion, nationality, membership of a particular social group or political opinion'. If the harm suffered is related to some other reason, such as economic conditions, Convention protection is not available.

Date for determination of refugee status. Whether or not a person is a Refugee for the purposes of the legislation is to be determined upon the facts existing at the time the decision is to be made. It is proper to look at past events and, in the absence of evidence of change of circumstances, to treat those events as continuing up to the tine of determination (see Shan and Che). In some circumstances, a person who would have satisfied the definition before the change may no longer be eligible.

In the case of Lek, 117 ALR 455 (at pp. 462-3), Wilcox J. rejected a contention that Chan decided that the relevant date for considering whether an Applicant for refugee status was the date of application, rather than the date of determination. His Honour did, however note the "High Court's emphasis [in Chan] upon the necessity to pay attention to the factors that gave rise to an Applicant's departure from his/her country of nationality" (at p. 462). He stated that the correct methodology was to separate out…

"two logically distinct questions: whether the Applicant had a continuing subjective fear of persecution on a Convention ground at the date of determination and whether that fear was objectively founded. [The approach taken by the Department] addressed the second question by taking as the starting point the position as at the date of departure and asking whether the available evidence establishes that the position has since changed, so that the fear is no longer well founded even though subjectively continuing. In regard to the latter inquiry, and because of the practical problems noted by the High Court, there is in substance an onus of proof on those who assert that relevant changes have occurred." (at p. 463).

These comments are entirely consistent with the observations of Mason CJ in Chan and those of the Full Court of the Federal court in Che.

"…in the absence of facts indicating a material change in the state of affairs in the country of nationality, an Applicant should not be compelled to provide justification for his continuing to possess a fear which he has established was well-founded at the time when he left his country of nationality". (per Mason CJ at P. 391, Chan)

"The question whether Che had the status of a refugee within the meaning of that term as used in the Convention is to be determined upon the facts existing at the time the matter is considered." (per Jenkinson, Spender, Lee JJ at p. 14, Che)

ISSUES:

The issues which are central in determining whether the Applicant is a refugee are:-

1. Does the Applicant, being outside her country of nationality or country of former habitual residence have a genuine (subjective) fear?

2. Is the harm feared related to one of the five grounds recognised in the Convention?

3. Is the harm feared of sufficient gravity to constitute persecution?

4. Is there a real chance' that persecution will occur?

5. Will the State fail to protect the Applicant from serious harm or persecution if she returns?

APPLICANT'S CLAIMS:

This hearing proceeded by way of conference telephone, as the Applicant resided in Far North Queensland, and could not attend a hearing in either Cairns, Brisbane or Melbourne. The Applicant and the Tribunal were assisted by an interpreter in the Tongan language.

In ascertaining the Applicant's case, the Tribunal considered:

--The Tribunal's and the Department's files including all submissions from the Applicant, and;

--Evidence given at a hearing conducted on 29 February 1996, via conference telephone. (The Applicant gave evidence form a city in Queensland. The Tribunal was present in Melbourne with an interpreter).

The following claims were made by the Applicant at the hearing. These are all summarised as follows:

The Applicant told the Tribunal that she wants permission to allow her children to stay in Australia to go to school and have a chance at obtaining an education.

She then told the Tribunal that she had just come out of hospital with a heart problem, she thinks she had a blood clot in her heart. She told the Tribunal that she was not sure whether she would face persecution as a result of her medical condition.

told the Tribunal that she did not think she would be persecuted if she were to return to Tonga. She said that the reason why she applied for protection was so her children could have a future in Australia, as there is no future in Tonga.

there is no money in Tonga. The Applicant comes from a family of 7 children and there is no money to support the family in Tonga. The Applicant asked the Tribunal to allow her and her children to stay to have a future.

was asked by the Tribunal whether she could travel with her children to Tonga without a visa and avoid the problems she was having in Queensland with her husband (the Applicant confirmed that she was a victim of domestic violence and had obtained a Protection Order, pursuant to the Domestic Violence (Family Protection) Act 1989 in mid-1995. This order was varied mid-1995). The Applicant was scared that her husband would continue to assault her. He had told friends that he would look for the Applicant wherever she went with the children of the marriage.

said that she does not have any family in Tonga. Some are living in New Zealand, the US, Australia and Tonga (where her parents reside). She said that she does not know whether her family would be able to protect her if she returns to Tonga. She does not know whether the police would be able to protect her.

told the Tribunal that she did not know why she applied for protection (refugee status) as she did not know the criteria. She said she thought it was a ground for staying in Australia after the problems with her husband started.

confirmed that her husband was a Fijian national.

adjourned the further determination of the matter pending a response from the Department of Foreign Affairs and trade (DFAT) in regard to questions raised in the hearing.

On 29 July 1996 the Applicant wrote to the Tribunal confirming that she was still separated, and the domestic violence orders where still in force until mid-1996. She stated that her husband had threatened to follow her wherever she goes, to another town, state or return to either Fiji or Tonga and commit the violence.'

DISCUSSION OF CLAIMS AND FINDINGS:

No claim was made by the Applicant, and no information was available nor ascertainable by the Tribunal to support a claim of fear of persecution for reason of race, nationality, religion or political opinion.

I accept that the Applicant, being outside her country of origin, has a subjective fear of persecution.

The Tribunal has had difficulty in determining from the Applicant's evidence whether she had made any claims which could be based on a well founded fear of persecution for a Convention ground. The Applicant's written claims in her original application were prepared by a migration agent, she was asked to sign the document and not worry about the blanks. The Applicant deliberately left out her husband from the primary applicant from, but contrary to her instructions, his name was placed on the form, and some one purportedly forged his signature. The Applicant wrote to the Department complaining about the information contained in her original application on 24 May 1995. She wrote that her agent had filled out most of part C of the form after she had signed the document and returned it to him. She goes on to write:

"On part C of the claim, most of it was filled out by the consultant after I had signed. I did not write the bit about why I left the country & I do not know how true the claims of persecution would be. I do know that unless I get my children on my passport and work out how to get them directly back to Tonga, that if I have to go to Fiji, then my children & I will be subject to my husband's wishes and I would then fear for my life as he has been violent towards me…"

In another letter to the Australian Red Cross dated 16 June 1995, the Applicant wrote:

"…I am concerned for our safety if I have to go back to my husband, & if I have to go to Fiji then I will probably end up dead.."

In a response to a series of questions from the Australian High Commission in Nuku'Alofa-Tonga to the Deputy Secretary for Foreign Affairs and Chief of Protocol, Ministry of Foreign Affairs, the Tongan Foreign Affairs Department responded on 22/8/95:

"…that children born in Australia to a Tongan mother and Fijian father would be Fijian citizens if the child was born in wedlock. When a child is born in wedlock it would take the nationality of its father, if the child was born out of wedlock, it would take the nationality of its mother. The children could obtain Tongan citizenship if the father became a naturalised Tongan or the children of the marriage reside in Tonga for 5 years. A Tongan mother could apply for a residential permit for her children, which is renewable every 2 years."

In response to the question whether people of mixed race (Tongan/Fijian) experienced difficulties/ discrimination in Tonga, the Tongan foreign Affairs Department responded ‘No'.

It is clear that from the evidence before the Tribunal that the Applicant and her spouse were married in Fiji mid 1989 deleted pursuant to s. 431 of the Migration Act 1958. All children of the marriage were born after this date deleted pursuant to s. 431 of the Migration Act 1958, while the children were born in Australia. Section 10 (1) (a) of the Australian Citizenship Act 1948 (as amended) (the Citizenship Act) states:

"A person born in Australia on or after 20 August 1986 is an Australian citizen by virtue of that birth if:

(a)a parent of that person was, at the time of the person's birth, an Australian citizen or a permanent resident…"

I am satisfied that the children of the Applicant are not

Australian citizens pursuant to section 10 of the Citizenship Act and as such take the nationality of their father, who is Fijian.

DISCRIMINATION IN TONGA:

The US State Department Country Report for 1994 comments that the principal human rights abuses in Tonga remain severe restrictions on the right of citizens to change their government and discrimination against women. It does not make any reference to discrimination against mixed race' or existence of mixed race' in Tonga. No reference has been found to Tongan Fijians or Fijian Tongans being discriminated in Tonga or Fiji. Amnesty International Reports of 1993, 1994 or 1995 have no entry for Tonga while a short entry for Fiji is found only in the 1993 Report.

It appears that racial discrimination practised in Fiji is directed primarily against the Indo-Fijians. The Country Report for 1994 comments on the situation in Fiji as follows:

"…[a] number of measures have been taken that favour the Fijian community over other ethnic groups. The most obvious are the apportionment of seats in Parliament to guarantee a preponderance of ethnic Fijians and constitutional provisions ensuring selection of an ethnic Fijian president and prime minister. The Government is also committed to raising the proportion of ethnic Fijians and Rotumans in the public service to 50 percent or more at all levels. This is reflected in current promotion and hiring policies in the public service favouring ethnic Fijians; as a result some Indo-Fijians have complained that, despite their experience and higher educational achievements, they are not promoted beyond middle management." (US State Department. Country Reports on Human Rights Practices for 1994, Fiji U. S. Government Printer: Washington, 1995) On 27/8/93, Rev Dr Sione Latukefu, leader of the Tongan Ethnic Community in Canberra, said to the tribunal that:

"I haven't seen any discrimination against mixed race people. I worked for nineteen years in Papua News Guinea where there was a problem in the treatment of mixed race people, because the Australian Government gave them rights that the rest of the population did not have which led to resentment. In Tonga the term, ‘half cast' (hafa casi) is used, not ‘mixed race'. The term is not a pejorative-it is normal, neutral. The group is looked up to because such people normally are better educated and better off than ordinary villagers. I can't imagine that they would have any problems". (record of discussion between the Tribunal and Rew Dr Sione Latukefu, leader of the Tongan Community in Canberra).

Article 29 of the Constitution of Tonga stipulates that any foreigner after they have resided in the Kingdom for five years of more may with the consent of the King take the oath of allegiance and they may be granted Letters of Naturalization. All naturalized subjects shall have the same rights and privileges as native-born subjects of Tonga with the exception that they shall not be entitled to the rights of hereditary tax allotments.' (Constitutions of the Countries of the World: Tonga: Oceana Publications, Inc. New York, 1982, p. 11).

Against the seemingly favourable comments in the US State Department Country Reports, there have been some reports of human rights violations in the island country recently. The Associated Press of 26/2/96 reports that under Tongan laws which make it illegal to threaten or anger a civil servant, a reporter and two pro-democracy campaigners who criticised the Tongan minister of police were jailed, but released soon afterwards.

The Applicant's fear that her children who are Fijian Tongan would be subjected to discrimination is not well founded. While the children would not be recognised as Tongan, they would have the rights to education, medical treatment and other necessities. They would, after 5 years, and with the consent of the King be naturalised as Tongan citizens, except for the allocation of town and country allotments of land.

SOCIAL GROUP:

The question of whether the Applicant or her children face persecution as a result of a fear of persecution on the basis of her membership of a social group is an important one. The Tribunal must determine whether married Tongan women who are victims of domestic violence' is a social group and therefore falls within the Convention.

Essentially the Applicant's claim is that she would be subjected to domestic violence from her estranged husband. There is evidence before the Tribunal that the Applicant has Protection Order' under the Domestic Violence (Family Protection) Act 1989, taken out in mid-1994 and valid until mid-1996. This order was varied on mid-1995 but continues to protect the Applicant and her children (who were born at that time) until the above date unless extended. Also there is the fear that the estranged husband will take the children from the Applicant while she is in Tonga. I find that there is not Convention ground in regard to this claim (a fear of the children being taken by their natural father). Clearly there is no social group or other Convention ground, in regard to the fear of a natural father taking the children.

The phrase, particular social group' means

…a recognisable or cognisable group within a society that shares some interest or experience in common', [such as] the nobility, land owners, lawyers, novelists, farmers, members of a linguistic or other minority, even members of some associations, clubs or societies'. (see Morato v. Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401 at p416)

However, to establish persecution for reason of membership of a particular social group, it must be shown:

… that persecution is feared for reasons of membership of that group'. The social group referred to in the Convention and Protocol is intended to encompass groups of people who share common social characteristics and might be the target of persecution but who do not fit into classifications of race, religion or political opinion' (Ibid at 405 & 416).

The Applicant's fear that her children would be kidnapped is not for a Convention reason, there is no cognisable group.

However, the Applicant's claim that she would face persecution in the form of domestic violence and have no protection does in my opinion fall within a Convention ground. That is the Applicant being a married Tongan women who is a victim of domestic violence' falls within the convention ground of a social group.

The issue of membership of a particular social group has been discussed by the Full Federal Court, Burchett, O'Loughlin and Nicholson JJ. presiding, in the matter of Kuldip Ram v. the Minister for Immigration and Ethnic Affairs and the Refugee Review Tribunal, reported in 130 ALR (1995) 314. In the leading judgment in that case Burchett J. stated that:

The Convention was intended to give hope to all fugitives fairly encompassed by its language. It seems to me that those who framed the provision wisely chose broad expressions, which it is not the court's task to constrict…

In my opinion, there is a unity of concept about the whole definition of a refugee contained in the Convention, so far as it relates to membership of a particular social group… Persecution involves the infliction of harm, but it implies something more: an element of an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation (however twisted) for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors. Not every isolated act of harm to a person is an act of persecution…

A social group may be identified, in a particular case, by the perceptions of its persecutors rather than by the reality. The works persecuted for reasons of look to their motives and attitudes, and a victim may be persecuted for reasons of race or social group, to which they think he belongs, even if in truth they are mistaken…'

In the Federal Court decision of Morato v. The Minister for Immigration, Local Government and Ethnic Affairs (1992) 30 FCR 401, Lockhart J. held at p. 416 that for a person to be a member of a particular social group it is necessary that the person:

…belongs to or is identified with a recognisable or cognisable group within a society that shares some interest or experience in common.'

In Minister for Immigration and Ethnic Affairs v Respondent A (Unreported, Full Federal Court, Beaumont, Hill and Heerey JJ, 16 June 1995) which was under appeal at the time Ram was being considered, the court after referring to the judgments in Morato and canvassing various Canadian and American authorities found:

Forcible sterilization could constitute persecution. But the respondent's fear of that persecution is not for reason of membership of a particular social group. There was no evidence that forced sterilisation formed part of the law or formal government policy in China. It was carried out at the instigation of over-zealous local officials. As such it could still be persecution, … Nevertheless, even if the respondents were able to show that there was a law of general application in China that parents of one child must be sterilised, and forcibly if necessary, persons facing that fate would not be members of a particular social group… the law would be one regulating the conduct of individuals. To apply the reasoning of Morato, such a law would be dealing with what people did, not what they are. The only difference is that such a law would be one operating on individuals to prevent future acts (conception and birth) rather than to punish past acts. Such a law would not create or define a particular social group constituted by those who are affected by it, any more than would laws imposing tax or prescribing punishment for tax evaders. … the respondents are not facing persecution by reason of membership of any social group having a recognisable existence separate form the persecutory acts complained of.' (at p. 24-5)

There is an earlier passage in this case which is apt so far as the situation of the applicant is concerned. The Court refers to an argument which has been considered in a line of cases in the United States. The argument is:

…essentially as follows: X fears persecution by reason of circumstances A, B and C which are applicable to him or her. X is therefore a member of a particular social group constituted by all people to whom circumstances A, B and C are applicable. This argument has been consistently rejected.' (p.15)

Wilcox J, in the case of Lek v Minister of Immigration and Ethnic Affairs (1993) 45 FCR 418 at 432 noted that a group described as single women in Cambodia' is too broad a group to come within the Convention definition. Any putative particular social group defined as women' or women victims of violence' is equally too broad.

On the basis of material canvassed above, the Tribunal is satisfied that married Tongan women' fall within the meaning of the phrase particular social group'. The Applicant is a member of a recognisable group that shares an experience in common. The Tribunal notes the decisions V 95/03448 (Tribunal Member Vrachnas), and V 95/03574 (Tribunal Member Brewer). In each of these decisions a particular social group was found to exist in regard to women, I have found these cases useful in their discussion and findings in regard to the general issues of social group'.

Having regard to the Federal court cases cited above, the Tribunal finds that the Applicant is a member of a particular social group constituted by married Tongan women'. The members of that group have shared experiences in common and are cognisable as a group at societal and official levels.

The persecution of members of that group is not merely the abuse to which they are subjected, but the failure or inability of state agencies to take effective protective action. There is a real chance that any complaint they make will go unheeded.

The tribunal acknowledges that the Applicant's experiences have led her to fear a possible recurrence in the future should she return to Tonga. It is clear that in certain circumstances domestic violence directed against an Applicant for refugee status can amount to persecution when the Applicant's country of nationality is unable or unwilling to protect her from it. Further, the Tribunal has previously accepted that women can form a social group for the purposes of linking the persecution to the Convention.

The Tribunal respectfully adopts the reasoning of Ms Lesley Hunt, Member, in Tribunal decision N93/00656, regarding the characteristics that make women a particular social group. At pages 22 to 23, the Tribunal member states:

"[I]t is the Tribunal's view that "women"… whilst being a broad category, nonetheless have both immutable characteristics and shared common social characteristics which make them cognisable as a group and which may attract persecution. The obvious immutable characteristic is that of gender. It simply cannot be argued that gender is a characteristic which can be, or should be required to be changed. It is a characteristic fundamental to individual identity. As Hathaway states, because it is an innate and immutable characteristic "whilst gender is not an independent enumerated ground for Convention protection, it is properly within the ambit of the social group category". (Hathaway, [1991, Butterworths Canada Ltd]…p.162).

the shared social characteristics common to all women, relate to gender and either emanate from, or are generally perceived to emanate from, gender. They include the ability to give birth, the role of principal child-rearers, nurturers, keepers of the family home, supportive partners in a relationship… it is the Tribunal's view therefore that women form a cognisable group in accordance with the principles enunciated in Morato.

That Australian society regards women as a particular social group, warranting particular attention, is evidenced by the establishment of various Commonwealth Government bodies such as the Office of Status of Women and the National Committee on Violence Against Women established in March 1990. Health and social needs shared by women are specifically addressed in various reports such as the National Agenda for women, the National Women's Health Strategy and the National Strategy on Violence Against Women (Commonwealth of Australia, October 1992). That women receive differential treatment with in the legal system is evidenced by the recent report of the Australian Law Reform Commission, prepared by Justice Elizabeth Evatt. That women share a common social status is evident from the fact that women generally earn less than men and that few women hold positions of power in both government and non-government institutions. These characteristics, specifically shared by women, defined by their social status, are addressed through the various affirmative action and equal opportunities policies, and through Commonwealth anti-discrimination legislation.

Another element binding all women, regardless of culture or class, is that of the fear of being subjected to male violence. Whether that fear relates to violence in the form of rape, domestic violence, incest, sexual harassment, sexual exploitation, or female genital mutilation, it is all located within the context of male violence. That such fear is a common characteristic amongst women is evidenced by reports, books and articles too numerous to list (the UN Commission on the Status of Women reviewed over 250 articles, books and studies on domestic violence alone), and by laws aimed specifically at addressing the issue of violence against women. That such fear s well-founded is evidenced by the high incidence of violence against women. Whilst definite figures are difficult to obtain from any country, it is estimated that in Australia domestic violence, perpetrated by men against women, occurs in between one in three and one in ten households (Office of Status of Women's, Community Education Break The Silence Campaign, 1989). Jocelyn Scutt through her research estimates that one in seven households are affected by domestic violence (Scutt, J. A., Even In the Best Of Homes: Violence In The Family, McCulloch Publishing Pty Ltd., Melbourne, 1990). An Australian Womens Weekly Survey on Rape conducted in 1980 indicates that one in eight women surveyed had been raped. In Brazil of over 4,000 battery complaints registered by women from 1988 to 1990 in So Luis, Maranho, only 300 were forwarded for processing by the court and only two men were convicted and sent to prison. (U. S. Department of State, Country Reports on Human Rights Practices for 1990, February 1991, page 531)."

In regard to the treatment of women in Tonga, the Tribunal notes and adopts the information contained in DFAT cable No. NK 16454, of 30/01/96, which states in part:

"…(A)FAMILY STRUCTURE

Tongan society places great importance on the family as the basis for all inter-personal relationships, whether the term is under stood in its immediate, nuclear sense, or more widely in the sense of a kinship or extended family grouping. This pattern is not entirely static. The extended family appears to be losing some of its traditional strength, in part as a consequence of the increasing urbanisation of Tongan society and its exposure to outside influences. But it remains, overall, a powerful influence in Tongan life, as demonstrated by the economy's continued heavy dependence on Tongans living overseas, who voluntarily commit themselves to regular and significant remittances of cash to family members at home this system accords great importance to the place of grandparents and other older family members, together with paternal aunts who are given particular authority and respect by younger family members.

There is little if any social stigma attached to illegitimacy. Illegitimate births appear to be quite common and children are often raised by single mothers or else informally adopted by other family members, most frequently siblings or grandparents. The concept of unwanted children does not form part of normal Tongan cultural attitudes.

(B)…

(C)Domestic Violence

There are no published statistics which would reliable reflect the incidence of domestic violence in Tonga. The annual reports of the minister of police contain figures for the offences of cruelty to children and young persons, grievous bodily harm, bodily harm, assault, rape and incest which no doubt capture some relevant cases, but in some of these categories, at least, there is clearly a considerable amount of under-reporting. The most recent police figures we have available (1994) for the offence of rape, for example, record only 14 cases, while only 2 cases of cruelty to children and young persons were recorded anecdotal reports, including from contacts in social welfare organisations, suggest that domestic violence, often associated with alcohol abuse, is fairly common. There are considerable social pressures on victims, particularly wives, not to report such abuse, or even to speak publicly about it, and wives who seek to escape domestic violence are open to blame for desertion. The police minister's report states that, because of the social stigma attached to it, rape is the most under-reported crime in Tonga.

This is not to say that official attitudes condone such behaviour. As indicated, the offences related to domestic abuse are serious crimes under Tongan law and tend to attract significant penalties on conviction. Noticeably lacking, however, have been efforts to raise public awareness about the extent and the seriousness of domestic abuse, and to change attitudes to it so that it is seen as unacceptable behaviour which should be reported to the authorities." (emphasis added).

DFAT also provided further information to the Tribunal in regard to this matter. Cable NK 16573 of 22/5/96 states in part:

(A) under Section 2 of the Nationality Act, the children of a Tongan mother and a foreign national are not deemed to be Tongan subjects, and it is not possible for them to be included on their mother's Tongan passport… The children should be able to enter Tonga with their mother, on residential permits renewable each two years. After five years residence the children could apply for Tongan citizenship.

(B)Tonga's Criminal Offences Act Provides penalties for violent crime, and covers violent crime of a domestic nature. Protection under the law does not depend on nationality, and the fact that the father is a Fijian citizen would have no legal bearing. In practice, however, the police may not be as ready to intervene in cases of domestic violence as in other cases of violence, and there might well be difficulties for a woman subjected to harassment or serious assaults by her husband in having her complaints dealt with effectively by the police. (emphasis added)

(C)If the Fijian father attempted to take the children form Tonga to Fiji without the mother's consent, it would be open to her to seek a court order to prevent him from doing so. If a court order were issued, the Tongan police would in theory prevent the children leaving the country. We would not be fully confident, however, that liaison between government agencies and the system of departure checks in place at Tonga's international airports would be sufficient to guarantee that a Kidnapping could be prevented. Additionally, if the children were taken before a court order could be sought, there would be no means of preventing their removal from Tonga. It should also be noted that Tonga does not have a reciprocal enforcement of judgements agreement with Fiji or Australia."

The US State Department Reports for 1993 when discussing the position of women in that society, records:

In Tonga's male-dominated society, women generally occupy a subordinate role. While the strong Polynesian cultural tradition has discouraged the rise of women to positions of leadership, a few have nonetheless become members of the legislature and have served in responsible positions in various occupations. However, these women need connections with the nobility or extraordinary luck, and they face severe limits on their upward mobility in this tradition-bound society. Some village women are breaking the mould of passive, docile followers by leading the village-based development projects. The Government has sought to direct the efforts of non-Governmental women's organisations… by establishing women's unit within the Prime Minister's office. However, women's groups view this as an attempt to co-op them and their programs…[emphasis]

Domestic violence is infrequent. As a result, the country does not have a women's crisis centre. Incidents of wife beating that do occur are generally dealt with in traditional ways between the families and village elders: abused wives sometimes return to their families if mediation fails.'

The Tribunal notes that while there is information from DFAT to suggest that assault is a crime in Tonga, the final comment by DFAT is telling, particularly in regard to women who are victims of domestic violence. That is, that the police, in practice do not readily intervene or effectively deal with domestic violence problems. The US State Department reports show that women are placed in a subservient role in Tongan society, (the Tribunal notes that the reports state that domestic violence is infrequent, but I accept the later reports by DFAT (as being more accurate) in this regard, that is, domestic violence is in the main not reported). The Tribunal is mindful that the domestic violence arose in Australia, however, I accept the Applicant's evidence that she fears that should she return to Tonga (a return to Fiji, where the Applicant has permanent residence is not, in the Tribunal's opinion, safe, having regard to the fact that her husband is Fijian and has relatives in the country) the possibility is neither remote or fanciful, that her estranged husband would follow her and the cycle of violence perpetrated on her and her children would continue. There is evidence from DFAT to suggest that the Applicant will not be able to seek protection through a court of law or the police. These considerations lead the Tribunal to concluded that Tongan state authorities are likely to be unable or unwilling to protect her because she is a married Tongan woman. This lack of protection amounts to persecution for a Convention ground. The Tribunal finds that the Applicant does have a well founded fear of persecution for a Convention ground.

In assessing all the circumstances of this case, including cumulatively, the Tribunal also finds there is a real chance, as defined by the High Court in Chan's case, that the Applicant would face persecution for a Convention ground if she were to return to Tonga.

Decision:

The Applicant and the persons included in her application, are refugees. The Tribunal sets aside the decision under review and remits the application for reconsideration with the direction that the Applicant and the persons included in her application must be taken to have satisfied the criterion that they are persons to whom Australia has protection obligations under the Refugees Convention.

The application is successful.

Domenico Calabro
Member


 

Search Refworld

Countries