1713763 (Refugee)

The Administrative Appeals Tribunal considered an application for protection visas made by citizens of Tonga. The primary applicant claimed fear of persecution as a member of the particular social groups of "people with disabilities in Tonga" and "female persons with a disability in Tonga." She also asserted a declining health condition, inadequate healthcare in Tonga, risk of degrading treatment, discrimination due to medical conditions, and past robberies of her family home. The secondary applicants relied on their membership in the family unit of the primary applicant.

The legal issues before the Tribunal were whether there was a real chance or real risk the applicants would suffer serious harm if returned to Tonga, either due to reasons of race, religion, nationality, membership of a particular social group, or political opinion, or alternatively, whether there were substantial grounds to believe that as a necessary and foreseeable consequence of removal, they faced a real risk of suffering significant harm. The Tribunal was required to consider the criteria for a protection visa under section 36(2)(a) and (aa) of the Migration Act 1958, including the definitions of "refugee" and "significant harm."

The Tribunal affirmed the delegate's decision not to grant the protection visas. It found that the applicants did not satisfy the criterion under section 36(2)(a) as they did not demonstrate a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. Furthermore, the Tribunal concluded that the applicants did not satisfy the complementary protection criterion under section 36(2)(aa), as there were no substantial grounds to believe they faced a real risk of significant harm as a necessary and foreseeable consequence of removal to Tonga. The Tribunal also noted that the secondary applicants did not satisfy the criterion in section 36(2) by being members of the same family unit as a person who held a protection visa.