1713763 (Refugee)

1713763 (Refugee) [2021] AATA 5071 (18 November 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1713763
COUNTRY OF REFERENCE:                   Tonga
MEMBER:Tania Flood
DATE:18 November 2021
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants protection visas.

Statement made on 18 November 2021 at 01:42am

CATCHWORDS
REFUGEE – protection visa – Tonga – particular social group – people with disabilities in Tonga – female persons with a disability in Tonga – inadequate health care system – primary applicant is deceased –secondary applicants – emotional distress and shock – ability to subsist and risk of homelessness – risk of robbery – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5J, 36, 65, 499
Migration Regulations 1994, Schedule 2
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 16 June 2017 to refuse to grant the applicants protection visas under s.65 of the Migration Act 1958 (the Act).
The applicants who claim to be citizens of Tonga, applied for the visa on 23 December 2016. The visa was refused as the delegate was not satisfied that there is a real chance or a real risk the applicants will suffer serious or significant harm on return to Tonga for reason of the first named applicant’s disability, and any hardship that the applicants may face due to Tonga’s economic conditions.
The applicants were invited to appear before the Tribunal during the Covid-19 pandemic and the Tribunal exercised its discretion to hold the hearing by MS Teams video link. The Tribunal determined it was reasonable to hold a hearing in this manner, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. Applicants two, three and four agreed to appear before the Tribunal by video link on 28 July 2021. The Tribunal hearing was conducted with the assistance of an interpreter in the Tongan and English languages. There was no indication that the applicants had any difficulty in understanding and responding to the questions being put to them during the video hearing. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.
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 (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.
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
The issue in this case is whether there is a real chance or a real risk the applicants will suffer serious harm if they return to Tonga for reason of their race, religion, nationality, membership of a particular social group or political opinion, or alternatively whether there are substantial grounds for believing that as a necessary and foreseeable consequence of them being removed from Australia to Tonga there is a real risk they will suffer significant harm.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Summary of claims
According to information provided in their applications for protection visas, the applicants are citizens of Tonga. The first named applicant (the applicant) was born in [year] in [District 1], Tonga. She lived in [State 1] from 1979 to 1998 and in [Village 1] between 1998 and 2010.
The second named applicant is the husband of the applicant, aged [age]. He has [number] sisters, [number] brothers and [number] nieces in Australia. He lived in [Village 1] between 1986 and 2010. Before coming to Australia, he was self-employed as a farmer in Tonga.
The third and fourth named applicants are their two children, aged [age] and [age].
The applicants arrived in Australia [in] November 2010 as holders of Tourist visas (TR 676). The second named applicant applied for a [different visa] on 24 February 2011. His wife and two children were included as dependent applicants. The application was refused on 18 March 2016.
The applicants lodged the application for a protection visa on 23 December 2016. On 16 June 2017 a delegate of the Minister refused the protection visa application. The second, third, and fourth named applicants relied on their membership of the family unit as the first named applicant and did not make their own separate claims for protection.
The first named applicant made the following claims on her protection visa application form:
She left Tonga because she feared persecution as a member of the particular social groups of ‘people with disabilities in Tonga’ and ‘female persons with a disability in Tonga’. Her health is rapidly declining and she risks being subjected to degrading treatment in Tonga.
She is at risk of harm and violence due to the economic situation in Tonga and her family’s home was robbed frequently. They took one of the robbery cases to court but there was no conviction.
Tonga’s health system is also inadequate and she will not be able to receive treatment for her [Medical condition 1]. She will also be subjected to discrimination due to her [Medical condition 2].
She suffered harm after her condition was mis-diagnosed in the hospital in Tonga and suffered severe side effects as a result of the medication she was given.
If she returns to Tonga, she and her family will be subjected to poverty. They were living in her husband’s brother’s home which had a contaminated water supply. They cannot relocate as the ‘significant harm and discrimination’ she will suffer is widespread within Tonga.
There is no legislative protection for people who are discriminated against due to their disabilities and there is no protection for women. In addition, the provision of disability services is limited.
Documents submitted to the Department
The applicants were assisted by a migration agent, [Mrs A]. [Mrs A] made a submission to the Department on 23 December 2016. She submitted that the applicants will suffer significant harm due to their economic and financial situation in Tonga. There are limited prospects for formal, salaried employment in Tonga, with the majority of the population is working in subsistence agriculture, and a third working on an unpaid basis. She stated that the applicant will be subjected to degrading treatment if forced to work in manual subsistence agriculture because of her declining health and [Medical condition 2]. She stated that people with disabilities in Tonga, such as [Medical condition 2], are among the poorest and are subjected to ‘vulnerable and risky situations’. It was submitted that the applicant’s children may be subjected to child labour in order to earn an income for their family, and that there are no legally established frameworks regarding the minimum age for work or hazardous forms of work in Tonga.
It was submitted that the applicants have previously been the victims of robbery, and their personal possessions stolen, including crops that the applicant’s husband had planted. The robberies resulted in the family going for weeks without food. It was submitted that if forced to return to Tonga, the family will suffer significant harm as a result of an inability to source an income, homelessness, and the pervasive risk of robbery.
[Mrs A] submitted that if forced to return to Tonga, the applicant fears that she would not receive adequate treatment for her [Medical condition 1], [Medical condition 2] and subsequent [Medical condition 3]. She stated that there is a current weakness in the monitoring, evaluation of Non-Communicable Diseases (NCD) and a considerable lack of funding. In addition, Tonga does not provide [specified treatment] for people who are suffering from [Medical condition 3]. If the applicant were to suffer severe medical complications, she would likely suffer significant harm and even death. [Mrs A] referred to online articles indicating that there is a lack of access to medication for [Medical condition 1] patients.
The submission states that the standard of education in Tongan is significantly lower than Australian standards, and that the applicant’s children have studied in Australia for six years and will be subjected to ‘severe emotional distress and shock’ if forced to return to Tonga.
[Mrs A] further stated that the applicant suffers with a significant [Medical condition 2], and that she belongs to the particular social groups of ‘people with disabilities in Tonga’ and ‘female persons with a disability in Tonga’. It was submitted that the applicant requires a suitable home to live in to cater to her disability. She currently receives ongoing support from [Organisation 1 in Australia]. Tonga does not have any policies or strategies in place that directly protect people living with disabilities. In addition, it was submitted that there is a ‘generally negative perception towards disability’ in Tonga, and no legislative protection for discrimination against women, or disabled persons. It was submitted that within Tonga, disability related services are mainly provided through individual NGOs and that the applicant will be subjected to degrading treatment as these NGOs lack funding, professionally trained and skilled staff, equipment and medicine.
[Mrs A] stated that the applicants are unable to relocate anywhere in Tonga without being subject to significant harm and persecution due to the widespread economic problems, the inadequate health care system, substandard education, and discrimination issues within Tonga. The submission was supported by references to country information including links to internet websites, and online articles and reports.
The following documents were also provided to the Department:
·Copy of the applicant’s marriage certificate.
·Copy of the birth certificates and passports for each applicant.
·Copy of medical letters dated from April 2013 to May 2017 in relation to the applicant’s health conditions including [Medical condition 1] and severe [Medical condition 2].
Protection visa interview
The first named applicant attended an interview with the Department on 18 May 2017. The interview was conducted in English. She repeated the abovementioned claims for protection.
Documents submitted to the Tribunal
On 14 January 2021 the Tribunal received an email from the applicant’s daughter stating that her mother (the first named applicant) had passed away.
On 28 July 2021 the Tribunal received a copy of the first named applicant’s death certificate and a letter of support from [Ms B], Specialist Trauma Counsellor, dated 15 May 2017. [Ms B] states that on [date] May 2016 the first named applicant was assaulted by her husband’s brother and one of the children also was physically assaulted in the course of that event. The offender was [the applicant’s] husband’s brother and his family supported the offender and blamed [the applicant] and her family for causing trouble. The offender was sent to prison and the family received less support from other family members as a result. They received some short-term support from the first named applicant’s family overseas to enable them to be accommodated.
Tribunal hearing
The secondary applicants appeared before the Tribunal to give evidence in support of their case. The applicant son, the fourth named applicant, gave evidence on behalf of all the parties.
During the hearing the Tribunal discussed with the applicant’s their background in Tonga, their claimed reasons for coming to Australia and their claimed fears of returning to Tonga. Their testimony is summarised as follows:
All three applicants are citizens of Tonga. Whereas the first named applicant (now deceased) once held a [Country 1 visa] it is long expired.
The applicant children are aged [age] and [age] and came to Australia when they were [age] and [age] respectively. They both speak Tongan and English and completed high school in Australia. The son is working full-time [and] the daughter is studying at TAFE part-time. The second named applicant works casually as a [Occupation 1] but not presently due to the COVID-19 pandemic restrictions. The applicant son stated that he has some personal savings but these were depleted somewhat as a result of having to cover the cost of his mother’s funeral.
The family are practicing Catholics. They attend a mixed congregation church. The applicant son and daughter are involved in a Tongan youth religious group for social purposes.
In Tonga, the second named applicant worked as a paid farm labourer. The family also relied on remittances from the second named applicant’s family in Australia.
All the second named applicant’s siblings ([number] in total) reside] in Australia apart from a [sister]. They have a third cousin in Tonga with whom they have some casual contact on occasion. The first named applicant’s family all live in the [Country 1] and [State 1] and they maintain contact with them.
Before their departure to Australia the family lived [in a specified area]. They lived in a house owned by the second named applicant’s brother. The house has since been removed but the land is still owned by the second named applicant’s brother. When he dies the land will be passed to the younger brother and then on to his son. The second named applicant is the third brother.
When the family arrived in Australia they received support from the second named applicant’s family members. They were housed by one of the sisters and assisted to make their visa applications. They remain on good terms with the family.
The second named applicant has a brother who was adopted out to another family member to raise. In 2016 that brother who was in Australia at the time wanted his own children to come to live in the house their family was occupying. There was jealousy and tensions and fighting and that brother was sentenced to four years imprisonment in 2016. After release he was deported back to Tonga. There have been no ongoing issues with him but they do not maintain contact.
As to the claimed fear of economic and financial hardship in Tonga the applicant son said that his understanding of Tongan is basic and it is very hard to find employment in Tonga regardless of whether you have studied and worked overseas. He said the majority of people rely on farming and that requires access to land which is passed down within families.
The Tribunal asked the applicants whether the family in Australia would object to them using the land which is held by the family in Tonga. The applicant son stated that the family have a plan to use that land in future for a business venture to support local people. The Tribunal suggested that if the aim is to use the land to support people then surely they would not object to their family benefiting from it. The applicant son agreed but said they are not very clear about the intended plans for the land. He said even if they could use the land for a while it belongs to the oldest son who could kick them off.
When asked if the family in Australia would send them money in Tonga the applicant son said he would like to think so. However, he said the family brought them to Australia so that they could stop providing that support in Tonga. He said since they arrived his father’s siblings have had more children and it would be selfish of them to expect them to continue supporting them. He agreed that many families in Tonga survive on remittances from family overseas.
The Tribunal put it to the applicants that it doesn’t appear any economic hardship they might endure in Tonga would be for a refugee related reason. The applicant son indicated he understood this.
The applicant son said the family is afraid that the brother who returned to Tonga might harm them because he blames them for his deportation. He said the reason there has not been any communication from him is because they have chosen not to be in contact with him. He said they do not know what he is thinking or feeling and Tonga is a small country so it would be easy for him to find them. In any event he is from the same village. He said that when he was in Australia he was subject to an AVO and could not contact them. He said he doubts they could obtain similar protection against harm from his father’s brother in Tonga.
The Tribunal put it to the applicants that the Tongan authorities likely know that his father’s brother was deported from Australia and has a criminal record and might therefore protect their family over him. The applicant son said the police would not assist them because they are corrupt and they would likely laugh at him because of the way he speaks Tongan.

As to the applicant son and daughter being unable to transition back into Tongan culture he said that because they grew up in Australia they have a different mentality to Tongan youth. He claimed their way of thinking is more advanced. He said ordinary Tongans will consider them different because of their speech and the way they think. He said that in Australia they have the right to speak freely.
The Tribunal put it to the applicants that there is freedom of speech and freedom to engage in political processes in Tonga and they agreed this is the case. However, the applicant son submitted that justice does not prevail in circumstances where the police can be paid off.
The applicant son said that his mother once received a sum of money from Australia to help with a funeral. He said her purse was stolen and when the matter went to court they were told there was not enough evidence to prosecute. He said they learnt that the day before the court case the family of the accused gave food to the police. The Tribunal acknowledged that police corruption exists but referred to country information which indicates that some steps are being taken to counter the problem.
The Tribunal put it to the applicant that petty theft, robbery and other forms of crime appear to be issues faced by the general population of Tonga and he agreed but said the public in general is unfairly treated.
The applicants agreed that the claims made in respect of their late mother/wife are no longer relevant. Similarly, the applicant and son agreed that the claims made in respect of their education and child labour are no longer relevant as they are adults and have completed their schooling.
The second named applicant stated that his family does not have a home to return to in Tonga and he wants to remain in Australia with all his siblings.
FINDINGS AND REASONS
Country of reference
Attached to the Departments files are copies of the applicants’ Tongan passports which verify their claimed identities and nationalities. Based on this information the Tribunal is satisfied that the applicants are nationals of Tonga.
Claims in respect of the first named applicant - feared discrimination against persons with disabilities and inadequate access to health care for [Medical condition 1], [Medical condition 2] and [Medical condition 3]
As noted above the first named applicant is deceased and therefore the Tribunal is satisfied she cannot meet the requirements for a Protection visa. The abovementioned claims are only relevant in so far as how they might affect the secondary applicants. This situation was discussed with the secondary applicants during the hearing and they raised no fears of returning to Tonga for these reasons. The Tribunal is satisfied that the secondary applicants do not have a genuine fear of persecution or fear significant harm in Tonga arising from the claims raised by the first named applicant.
Feared harm to children including inadequate protections against child labour and substandard education system
During the hearing the Tribunal noted that the relevant secondary applicants are now adults and have completed their secondary education in Australia. The Tribunal indicated that the abovementioned feared harm no longer appears applicable. The applicants agreed with the Tribunal’s assessment. The Tribunal is satisfied that the third and fourth named applicants do not fear persecution or significant harm in Tonga for these reasons.
Feared harm to children due to likely emotional distress and shock
The fourth named applicant claims that he and his sister have grown up in Australia and consequently they have a different world view and will find it difficult to integrate into Tongan society. He further claims that they speak Tongan differently to native born Tongans and they will be ridiculed for this.
The Tribunal accepts that the third and fourth named applicants have spent their formative years in Australia and that their world view is possibly different to their peers in Tonga who were raised in a more traditional environment. The Tribunal also accepts that they may not speak pure Tongan. However, as discussed with the applicants during the hearing they nevertheless can communicate proficiently in Tongan and have maintained cultural connections and awareness through their youth group activities in Australia. While the Tribunal accepts the wider community might notice they speak Tongan differently and hold differing views about certain topics there is nothing before the Tribunal to suggest that they will be targeted and harmed for this reason. In any event, as discussed with them during the hearing, the Tribunal is not persuaded that unpleasant comments about their language skills and world views would result in them suffering emotional distress and shock such that it would reach the threshold required to afford them protection.
The Tribunal does not accept that there is a real chance or a real risk the third and fourth named applicants will suffer serious or significant harm, including severe emotional distress and shock, on return to Tonga for reason of the fact they were raised in Australia and have differing language skills and/or views about certain topics.
Fear of harm from the second named applicant’s brother
According to the applicants their main fear is that the second named applicant’s brother will harm them on return to Tonga because he blames them for his deportation from Australia in 2016. During the hearing the applicants informed the Tribunal that they have not been threatened or contacted by him since he left Australia. They claimed this was because they have avoided making any contact with him.
The Tribunal accepts, based on the available information, that there was a family conflict in 2016 in which the second named applicant’s brother was physically violent to the first named applicant and one of the children. The Tribunal accepts that the brother was imprisoned for a time and then deported to Tonga in 2016.
The Tribunal accepts that the applicants genuinely fear that they could be physically harmed by their relative on return to Tonga but it is not persuaded that there is an objective basis for this. Despite that the applicants themselves have not initiated any contact the person they fear is a member of an extended family network in Australia and has in the Tribunal’s opinion had ample opportunity to contact them through other family members and threaten them with harm if it was his intention to do so. Instead, in the five years which have elapsed since his deportation he has not once attempted to contact them or threaten them with harm. In the Tribunal’s view this is an indication that he is not motivated to harm the applicants. In view of the circumstances the Tribunal is not persuaded that there is a real chance or a real risk the applicants will suffer serious or significant harm at the hands of their relative on return to Tonga.
Feared inability to subsist and risk of homelessness
The applicants claim that finding employment on return to Tonga will be difficult and they will not be able to subsist and will be at risk of being homeless.
A July 2021 Asian Development Bank (ADB) fact sheet on Tonga states:
Tonga is a small island economy with the challenges of geographic isolation, limited human and financial resources, a small domestic market, and high costs of doing business. The country relies significantly on official development assistance and remittances, increasing its vulnerability to external shocks.[1]
[1] ‘Asian Development Bank Member Fact Sheet. Tonga’, Asian Development Bank, [26] July 2021, p.[1], 20210803103934
The Department of Foreign Affairs and Trade’s (DFAT’s) current ‘Tonga country brief’ includes an ‘Economic overview’:
Tonga has a small open economy which is vulnerable to external shocks. Tonga has faced an economic contraction due to COVID-19, but with donor support, has minimised some of the worst impacts on vulnerable communities. The economy is heavily reliant on remittances from Tongans working overseas as well as foreign aid. The US is the main source of remittances, followed by New Zealand and Australia. Foreign development assistance in the form of loans, grants and direct aid is an important component of the Tongan economy. Construction and infrastructure projects funded by donor grants and soft loans are sources of growth. Despite its economic difficulties, Tonga remains one of the best performers in the Pacific in terms of progress against the Millennium Development Goals. Agriculture is the leading productive sector. The manufacturing sector is very small.[2]
[2] ‘Tonga country brief’, Australian Government. Department of Foreign Affairs and Trade, undated, accessed 23 July 2021, 20210723095251
The April 2021 ADB Asian Development Outlook 2021 report stated of Tonga’s economic performance and prospects:
Already slow recovery from Tropical Cyclone Gita in February 2018 was derailed by the twin shocks of Tropical Cyclone Harold in April 2020 and COVID-19, causing the economy [that is, GDP] to contract by an estimated 0.8% in FY2020, most notably from declines in construction and tourism. A further decline in tourism and delays in construction projects are forecast to cause a deeper contraction of 5.3% in FY2021. While growth is expected to return in FY2022, it will be constrained to a projected 1.8% as remittances normalize off recent record highs and the private sector languishes. The delayed reopening of borders and intense competition for returning tourists are likely to hamper the ability of businesses in the sector to recover for a number of years.[3]
[3] ‘Asian Development Outlook 2021. Financing A Green and Inclusive Recovery’, Asian Development Bank, [27] April 2021
The most recent Tonga Labour Force Survey (TLFS), conducted in 2018, stated the total population as 99,600 and the working-age population - ‘the population aged 15 years and above’ - as 63,189, 52.3 per cent of which was in the rural part of Tongatapu Island Division (‘Tongatapu Rural’), 26.2 per cent in the urban part of Tongatapu (‘Tongatapu Urban’), and 21.5 per cent in the other Island Divisions. The labour force participation rate was 46.7 per cent [nationally] (with 56.2 per cent for men and 38.4 per cent for women). The labour force participation rate in Tongatapu Rural stood at 45.7 per cent, compared to 43.1 per cent in Tongatapu Urban [and 71.6 per cent in Ongo Niua, 58.6 per cent in Vava’u, 44.3 per cent in Ha’apai and 38.4 per cent in ‘Eua]. Persons who attained tertiary level of education had the highest labour force participation rate, corresponding to 67.9 per cent, followed by those with completed secondary level (48.0 per cent). Lower labour force participation rates were observed among persons with completed primary education (39.7 per cent) and less than primary education (14.9 per cent). From a total working-age population of 63,189, about 52,544 persons (83.2 per cent) reported being engaged in some form of subsistence production, with women accounting for 55.5 percent and men for 44.5 per cent (Table 9.1). More than half of all those engaged in own-use production work (50.9 per cent) were based in Tongatapu Rural. About 16,499 persons are subsistence food producers, corresponding to around one quarter (26.1 per cent) of the working-age population. Most of the subsistence food producers are men (72.3 per cent) as their main roles lie predominantly outside the home in agriculture and fishing. Within Tongatapu, most of the subsistence food producers are located in Tongatapu Rural. [4]
[4] ‘Tonga Labour Force Survey (TLFS 2018) Analytical Report’, Tonga Statistics Department, Government of Tonga,
Based on the above country information the Tribunal accepts that the applicants will likely encounter difficulties finding employment on return to Tonga. That said, the applicants’ evidence is that prior to them departing Tonga their extended family in Australia provided them with a monthly remittance to assist them to meet their basic needs. During the hearing the Tribunal put it to the applicants that country information[5] indicates that traditional family or kinship networks are strong in Tonga and that many families survive on remittances from family members abroad. The fourth named applicant agreed this is the case but nevertheless voiced some concerns about their ability to rely on family support indefinitely. Notwithstanding this the applicants advised the Tribunal during the hearing that they have been well supported by the family in the past, both in Tonga and Australia and remain on good terms with all the family in Australia as well as with the first named applicant’s family in the [Country 1] and [State 1]. Based on the available information, including independent country information, the Tribunal is satisfied that the applicants would be able to count on financial assistance from their family members overseas if they are required to return to Tonga. In view of this the Tribunal is not satisfied that the applicants will be unable to subsist if they are required to return to Tonga and struggle to find employment.
[5] ‘Tonga country brief’, Australian Government. Department of Foreign Affairs and Trade, undated, accessed 23 July 2021, 20210723095251; UNICEF, ‘Situation Analysis of Children in Tonga
Additionally, the second named applicant’s family own land in Tonga which they are currently not utilising as all the other siblings are residing in Australia. Indeed, the Tribunal notes that the applicants were living on that land before they departed to Australia. During the hearing the Tribunal discussed with the applicants their ability to resume living and working on the family’s land if they are required to return to Tonga. The applicants stated that their home is no longer standing and the family has plans to use the land for alternate purposes at a time in the future. However, when questioned further about this they were unable to provide any concrete details as to what is planned or when. Given that all the family are currently residing permanently in Australia the Tribunal is not persuaded that the land is earmarked for any venture in the foreseeable future. During the hearing the fourth named applicant stated that even if his family are permitted to live on the land if they are required to return to Tonga his father’s oldest brother currently has the rights to the land and could always kick them off. The Tribunal acknowledges the response but the applicant’s claim to enjoy a close relationship with their family members in Australia and they were permitted to build a house and live on the land in the past. Given this and as the land is currently not being used for any other purpose the Tribunal considers it likely the family could resume a similar living arrangement on their return to Tonga.
In the circumstances the Tribunal is not satisfied that the applicants will be unable to subsist or will face homelessness if they are required to return to Tonga. The Tribunal is not satisfied that there is a real chance or a real risk the applicants will suffer serious or significant harm if they return to Tonga due to an inability to find work or accommodation.
Pervasive risk of robbery
The Tribunal accepts that burglaries, petty theft and robbery do occur in Tonga[6] and that as is claimed the applicants were victims of robbery in the past. The Tribunal also accepts the possibility that they could encounter such troubles in the future. However, as discussed and agreed with the applicants during the hearing the harm which they fear in this respect appears to be harm which affects the general population of Tonga. The fourth named applicant indicated that this is correct and agreed that the public in general are at risk of crime.
[6] US 2020 Crime and Safety Report
The Tribunal is satisfied that the harm the applicants fear would not be the result of systematic and discriminatory conduct by criminal elements targeting them personally and is a risk that is faced by the population of the country generally and not by themselves personally. Therefore, the Tribunal is satisfied there is not a real chance or a real risk they will suffer serious or significant harm on return to Tonga for reason of a pervasive risk of robbery.
Having considered the applicants’ claims individually and cumulatively and for the reasons outlined above the Tribunal is satisfied that none of the applicants have a well-founded fear of persecution in Tonga now or in the reasonably foreseeable future. Therefore, the applicants do not satisfy the criteria in s.36(2)(a) of the Act.
Having concluded that the applicants do not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). For the same reasons already articulated above the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicants being removed from Australia to Tonga there is a real risk that they will suffer significant harm. The Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
There is no suggestion that the applicants satisfy s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicants do not satisfy the criterion in s.36(2).
DECISION
The Tribunal affirms the decision not to grant the applicants protection visas.
Tania Flood
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.
…

[2021] AATA 5071

18 November 2021

Key Legal Topics

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

Jurisdiction

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Standing

Appeal