1714935 (Refugee)

1714935 (Refugee) [2022] AATA 5134 (15 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  1714935
COUNTRY OF REFERENCE:                   Tonga
MEMBER:Tania Flood
DATE:15 December 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 15 December 2022 at 3:08pm
CATCHWORDS
REFUGEE – protection visa – Tonga – minor child – homelessness – family support – employment opportunities – access to health care and education – use of physical punishment in schools – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65
Migration Regulations 1994 (Cth), 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 9 June 2017 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Tonga, applied for the visa on 19 September 2016. The visa was refused as the delegate was not satisfied that there is a real chance or a real risk the applicant will suffer serious or significant harm on return to Tonga on account of his family’s lack of housing, family support network and/or the lack of services in Tonga.
The applicant was invited to attend a hearing on 14 December 2022 to give evidence and present arguments in support of his case. A request to postpone the hearing until 2023 was received from the applicant’s mother on the basis that her daughter was due to graduate on 14 December 2022. The Tribunal agreed to postpone the hearing until the following day and the applicant was sent a new hearing invitation letter. On 9 December 2022 the Tribunal received a completed response to hearing invitation form which indicated the applicant would not participate in the hearing and consents to the Tribunal making a decision on the papers without taking further steps to allow him to appear.
In light of the above the Tribunal proceeded to decide the matter on the information before it.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
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 the applicant will suffer serious harm if he returns to Tonga for reason of his 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 him being removed from Australia to Tonga there is a real risk that he 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 contained in his application for a protection visa, the applicant is a [age]-year-old citizen of Tonga. He was born in [Suburb 1], New South Wales in Australia and has never left Australia. His mother, father and three sisters all reside in Australia and are citizens of Tonga. They previously applied for and were refused the grant of Protection visas prior to his birth.
An application for a Protection visa was lodged on the applicant’s behalf on 19 September 2016. On 9 June 2017, a delegate of the Minister refused his Protection visa application.
The following claims were made on the applicant’s behalf:
He has never been to Tonga. If he returns to Tonga he would be homeless as his parents will be unable to gain employment. The Tongan Government does not have the resources to assist them and they have no relatives to offer them free food and other necessities. His parents relocated numerous times to feel safe in Tonga.
Protection visa interview
The applicant’s mother was invited to attend a Protection visa interview with the Department on 19 May 2017 as the applicant is a minor. The applicant’s mother submitted during that hearing that the applicant and his siblings will not have a sufficient and fair level of education if they return to Tonga and that health care services are also lacking. She also expressed concern about the use of physical punishment in school.
FINDINGS AND REASONS
Country of reference
The information before the Tribunal indicates that the applicant was born in Australia to Tongan parents. According to the Tonga Nationality Act[1] persons born abroad of a Tongan father who was born in Tonga shall be deemed to be Tongan subjects. In the absence of any information to the contrary the Tribunal is satisfied that the applicant is a national of Tonga.
[1] Tonga Nationality Act, 1988 Revised Edition
Feared homelessness and lack of family support

19. The applicant is a minor and his mother, acting on his behalf, declined to appear before the Tribunal and requested that the matter be determined on the papers.
20. It is claimed that the applicant will be rendered homeless because his parents will be unable to gain employment on return to Tonga and he will not have access to familial support to meet his basic needs.
21. The Tribunal has carefully considered the written claims of the applicant and the material contained in the delegate’s decision. According to the delegates decision the applicant’s parents and older siblings previously applied unsuccessfully for Protection visas prior to his birth and remain in Australia on Bridging E visas pending a decision on the applicant’s case. If the applicant is required to return to Tonga the Tribunal is satisfied it will be in the company of his parents.
22. During the interview with the delegate the applicant’s mother repeated the claimed fear of homelessness and pointed out that her family does not own land. She also stated that her husband formerly worked for the [government] in Tonga but resigned when he was not given opportunities for promotion or training. Whilst it is noted in the decision record that the applicant’s mother was formerly employed in a restaurant it is not clear whether this employment history relates to her time in Australia or when she was in Tonga.
23. The Tribunal acknowledges that formal employment opportunities in Tonga may be lacking given that 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 and that the country reportedly relies significantly on official development assistance and overseas remittances, increasing its vulnerability to external shocks.[2] That said, the applicant’s father, and possibly his mother, were previously employed in reputable positions in Tonga and there is no information before the Tribunal to indicate that their ability to find employment has altered in the time they have lived in Australia.
24. According to independent country information[3] extended family networks are a source of support among Tongans and in times of crisis the extended family network acts to protect people. Relevantly, the applicant’s mother stated during her interview with the delegate that her adopted sister in Tonga previously assisted the family when her husband resigned from the [public service]. She also stated that her Tongan family members in Australia have assisted the family to meet their basic needs since coming here.
25. The Tribunal accepts the applicant’s parents may initially encounter some difficulties finding employment but based on past experience it is not persuaded that they will be denied employment opportunities for a refugee reason or will be unable to find some form of work on return to Tonga.
26. Whilst it is acknowledged the applicant’s mother claimed in the interview with the delegate that her family in Tonga and Australia will struggle to provide them with support, based on the above country information and her claimed past experience in respect of her relationships with her family members the Tribunal is not satisfied that the applicant or his family will be left without family support. Despite limited resources and strains on living space the Tribunal considers there is every likelihood the family will be taken in and assisted by relatives while they seek to re-establish themselves in Tonga.
27. The Tribunal is not satisfied in the circumstances that the applicant will be rendered homeless on return to Tonga or that he would be unable to subsist in Tonga because his family will be unable to find employment and they will have no family support to rely on. The Tribunal considers there is not a real chance or a real risk that the applicant will suffer serious harm in respect of these claims.
Feared harm due to the lack of quality health care and education and the use of physical punishment in schools.
[2] Asian Development Bank Member Fact Sheet, Tonga, ADB, 26 July 2021
[3] Millennium Development Goals Final Report 2015 Tonga, Government of Tonga, 1 September 2015

During the interview with the delegate the applicant’s mother expressed concern about the quality of health care and educational services in Tonga, including the use of physical punishment in schools.
Information located in independent country information reports indicates that free and generally effective government healthcare is generally available in Tonga; health care coverage is universal and the government provides free medical services through its hospitals and health clinics.[4] More recent information, in a May 2019 Australian evaluation, stated of ‘Health in Tonga’, Tonga has one referral hospital (Vaiola), four district hospitals (Niu’eiki, Niu’ui, Prince Wellington Ngu and Likamonu) and 14 Community Health Centres (7 on Tongatapu, seven on other islands). There were 71 doctors and 454 nurses working in Tonga as at end of 2016. Services are funded through general taxation and are free at a point of delivery. Pharmaceuticals are free if dispensed at health centres.[5]
[4] Financing Options for the Health Sector in Tonga, World Bank, 1 January 2009; Human Rights in the Pacific. A Situational Analysis, Pacific Community, 15 September 2016; Health Service Delivery Profile. Kingdom of Tonga 2012.
[5] Tonga Health Systems Support Program Phase 2 (THSSP2). Mid-term evaluation report, Specialist Health Service (SHS) 25 April 2019
The information sourced also indicates that Tonga has in place legislation and policies to support the education sector such as the Tonga Education Act passed in 2013 and the Tonga Education Support Program TESP. All children under the age of 19 years reportedly have a right to access education and education is compulsory between the ages of 4-18 years or when the child has completed 12 years of education. Corporal punishment in schools is reportedly banned. A UNICEF Situation Analysis in 2017 reported that education statistics are out of date, making it difficult to conduct a comprehensive assessment and analysis of the current education situation. Information provided showed that in 2013, 97% of children were in primary education with a 91.8% survival rate to the last grade of primary education, and 79% were in secondary education. The literacy rate has also reportedly been maintained at a very high rate over time. The limited number of secondary schools in rural areas was considered to be a driver of low enrolment and dropout rates due to high transport costs and migration of students to urban and peri-urban areas. At the primary school level, equity and quality in provision in remote areas are the greatest challenge, especially in small remote islands. [6]
[6] Human Rights in the Pacific. A Situational Analysis, Pacific Community, 15 September 2016; Millennium Development Goals Final Report 2015 Tonga, Government of Tonga, 1 September 2015
The Tribunal accepts that some challenges may remain in the provision of quality health care and educational services in Tonga. However, based on the above reporting the Tribunal is satisfied the applicant would be able to access an adequate level of health care and a basic education if he is required to return to Tonga. The Tribunal is not satisfied that there is a real chance or a real risk he will face serious or significant harm on return to Tonga for these reasons.
For completion the Tribunal notes the reference in the written claims to the applicant’s parents relocating numerous times to feel safe in Tonga but there is not enough detail in the available information to assess the meaning or significance of this claim. The Tribunal considers there is insufficient information to find that if the applicant returned to Tonga, he would be subject to serious or significant harm for this reason.
For the reasons given above, the Tribunal is not satisfied that there is a real chance that the applicant will suffer serious harm if he returns to Tonga now or in the reasonably foreseeable future for reason of his race, religion, nationality, membership of a particular social group or political opinion. Accordingly the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does 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 applicant being removed from Australia to Tonga there is a real risk that he will suffer significant harm. Accordingly, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
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.
…

[2022] AATA 5134

15 December 2022

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