1723925 (Refugee)

1723925 (Refugee) [2022] AATA 5111 (20 December 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Mr Simon DIab
CASE NUMBER:  1723925
COUNTRY OF REFERENCE:                   Tonga
MEMBER:Tania Flood
DATE:20 December 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the first, second and third named applicants protection visas.
The Tribunal does not have jurisdiction in respect of the fourth, fifth and sixth applicants.

Statement made on 20 December 2022 at 2:20pm
CATCHWORDS
REFUGEE – protection visa – Tonga – religion – Church of Jesus Christ of Latter-Day Saints (Mormons) – school related violence – perceived wealth – deportees – country information – effective state protection – language abilities – standard of education – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H, 5J, 36, 65, 91P, 91Q, 411, 412
Migration Regulations 1994 (Cth), r 4.02; 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 15 September 2017 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants who claim to be citizens of Tonga, applied for the visas on 20 June 2017. The visas were 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 on account of being Mormon and being perceived as returnees from a ‘rich’ country.
The first and second named applicants appeared before the Tribunal on 16 December 2022 to give evidence and present arguments in support of their and their daughter’s case.
The applicants were represented in relation to the review.
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 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
The first named applicant is the primary applicant in this case. According to information contained in the application for a protection visa, she is a [age]-year-old citizen of Tonga. She was born in [location] in Tonga and she is a Mormon. Before coming to Australia she resided in [Address 1] from [year] to June 2002 and at [Address 2] from June 2002 to December 2009. From [year range] the applicant attended a [primary school], from [year range] she attended [high school] and from February 2010 she completed an online pathway program in [subject], from [University 1]. She was employed as a [Occupation 1] with the Church of Jesus Christ of Latter-Day Saints Service Centre from July 1999 to October 1999; in [Occupation 2] for [Employer 1] between November 1999 and April 2004 and as a [Occupation 3] for [Employer 2] between January 2005 and September 2009. Her [husband], [sons] and [daughters] are all secondary applicants and reside onshore with the applicant. Her father is deceased. She has [number] sisters and [number] brothers. One sister resides in Tonga whereas all her other siblings live abroad in Australia, [Country 1] and [Country 2].
The primary applicant arrived in Australia [in] December 2009 as the holder of a TR 676 visa. That visa ceased on 17 March 2010. She lodged an application for a Protection visa on 20 June 2017. On 15 September 2017, a delegate of the Minister refused her Protection visa application.
The primary applicant made the following claims for protection:
She left Tonga in 2009 to visit her husband’s relatives in Australia. She realised soon after arriving that she had been living in fear whilst in Tonga due to the prevalence of gangs who opposed Mormon believers. She stated that in 2006 Nukualofa was ‘burnt down’ by gangs targeting the government.
If she returns to Tonga, she believes that she and her family will be targeted by gangs and/or rebels opposed to the government due to their Mormon beliefs, and due to their perceived affluence, having lived in Australia for a time.
She claims to have suffered attacks on ‘their’ homes, name-calling and that her children were bullied at school because of their Mormon beliefs.
She believes she and her family will be harmed and mistreated if they return to Tonga, and that they will be targeted by gangs for their religious beliefs, robbed, beaten and bullied. She also says they will be referred to as ‘deportees’ which will result in even more persecution than may otherwise be the case.
She cites attached media articles which allude to school fights and riots targeting Mormon believers.
She states that there is nobody in Tonga who could help them. She notes that the government has limited resources, that the police do not care about them and may even cause harm to Mormons.
She cannot move to other parts of Tonga to avoid being harmed as it is a small island and everybody knows everybody.
Documents submitted to the Department
The following documents/news articles were attached in support of the application:
a.A three-page list of links to media articles and YouTube videos.
b.‘Tonga police work to solve school fights’ Dateline Pacific, dated 25 February 2015
c.‘Horrific school fight in Tonga caught on video’ Kaniva Tonga dated 19 November 2014
d.‘147 boys arrested in Tonga school attack’ Newshub dated 19 July 2013
e.‘Extra police patrols to stop students fighting in Tonga’ Radio NZ 4 March 2016
f.‘Brawling youths mar mourning for queen mother’ Kaniva Tonga dated 9 March 2017
g.‘Tongan media Bleep” School Boy Brawl for Honour Turns Gladiators Part 1’ dated 28 March 2016
h.‘Teen school rugby goes on despite violence’ Fiji One dated 13 August 2014
In a submission from Simon Diab and Associates dated 20 June 2017 it is claimed that the applicant fears being targeted by gangs due to her Mormon beliefs. He states that she is a Mormon Tongan woman and has a well-founded fear of persecution based on her personal experiences and general unrest in the country. She is unwilling to return home as Tongan officials are not willing nor capable of protecting human rights.
Primary Decision
The delegate determined that there is not a real chance or a real risk the abovenamed applicants will suffer serious or significant harm if they return to Tonga. The delegate found that the applications of three additional family members (the elder children of the first and second named applicants) who were included as members of the same family unit on the protection visa application were invalid under s.91P because they are nationals of more than one country.
Documents submitted to the Tribunal
In an email to the Tribunal dated 6 October 2017 the applicant’s representative attaches an email sent to the Department on 15 August 2017 addressing the issue pursuant to s.91Q which was purportedly not received by the Department. That email attaches the following:
-A signed letter by the children’s parents requesting the Minister to permit the children ([the fourth, fifth, and sixth named applicants]) to be listed on the Protection Visa application form.
-Letters to the Minister signed by [Ms A] the children’s aunt, and the Bishop of the [specified] Ward of the Church of Jesus Christ of Latter-Day Saints
The representative makes the following submissions with respect to the S91Q consideration:
1.The children’s parents are trying to correct their immigration status and seek the compassion of the Minister.
2.The three secondary applicants affected by s91Q are minors, and unwilling and unable to be separated from their parents, should they have to depart Australia.
3.Consideration is sought with respect to the ‘Convention on the Rights of the Child’.
4.The primary applicant has valid protection claims, and requests that the three children remain on the protection application until her protection claims are assessed.
5.The three children which hold [Country 1] passports are not guaranteed of passport renewal by [Country 1] authorities. Thus their [Country 1] nationality may be considered as currently ineffective.
6.The children are high achievers and an adverse decision resulting in departure would negatively affect their education.
7.The children aspire to be productive citizens.
8.Family, friends and church community members plead with the minister to make a favourable decision with respect to the three aforementioned children.
Tribunal hearing
The primary and secondary applicant appeared before the Tribunal on 16 December 2022. The Tribunal discussed with the applicants their respective backgrounds in Tonga and the reasons why they fear returning to Tonga. Their testimony is summarised and included in the following findings and reasons.
FINDINGS AND REASONS
The three elder children of the first and second named applicants
The application for review which is before the Tribunal included the three eldest children of the first and second named applicants ([fourth, fifth, and sixth named applicants]) as applicants.
The Tribunal has jurisdiction to review a decision under the Migration Act 1958 (Cth) if an application is properly made under s.347 or s.412 of that Act, or in limited circumstances not relevant to this application, s.29 of the Administrative Appeals Tribunal Act 1975 (Cth). Sections 338 and 411 of the Act and reg 4.02(4) of the Migration Regulations 1994 (Cth) set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal. They include decisions to refuse and cancel visas of various kinds and a range of sponsorship and nomination decisions, but the evidence before the Tribunal indicates that at the time the review application was lodged, no relevant decision had been made in respect of the three elder children named above.
The delegates decision which is before the Tribunal dealt only with the first, second and third named applicants listed in this decision record because the delegate found that the applications of the three elder children were invalid under s.91P because they are nationals of more than one country. The notification of refusal letter which was sent to the first named applicant on 15 September 2017 clearly states that the application for a protection visa has been refused for [first named applicant]; [second named applicant] and [third named applicant] and that the information contained in the letter referring to ‘you’ means only these applicants.
The above circumstances were discussed with the first and second named applicants during the hearing and they indicated to the Tribunal that they understood the situation.
The Tribunal notes the submissions made in respect of the inclusion of the elder children in the current review including the argument that the three children which hold [Country 1] passports are not guaranteed of passport renewal by [Country 1] authorities. However, the Tribunal is satisfied that no primary decision was made in respect of [the fourth, fifth, and sixth named applicants]. As no reviewable decision had been made in respect of these applicants at the time the review application was lodged it follows that the application was not properly made and the Tribunal does not have jurisdiction in this matter.
Country of nationality
Based on the identity evidence before it the Tribunal finds the first and second named applicants are nationals of Tonga. During the hearing the first named applicant indicated that she was having difficulty obtaining a passport for the third named applicant because she does not have a Tongan birth certificate. Irrespective of this, and as discussed with the applicants during the hearing, the Tonga Nationality Act[1] states that persons born abroad of a Tongan father who was born in Tonga shall be deemed to be Tongan subjects. The Tribunal is satisfied that all three applicants are Tongan nationals for the purpose of this review.
[1] Tonga Nationality Act, 1988 Revised Edition
Fear of harm from gangs and/or rebel groups because of their religion
The applicants assert that they fear harm from gangs and/or rebel groups who are opposed to the government on account of their religion. During the hearing they identified no particular groupings and indicated that they fear harm from the community in general.
During the hearing the primary applicant stated that members of the Church of Jesus Christ of Latter-Day Saints (Mormons) experience verbal and physical violence from community members and the police due to their different religious beliefs. She referred to a particularly serious incident in 1963 in which her grandparents were victims of a bombing due to their religion. She said that her family were among the first families in her village to convert to Mormonism and they were targeted because of this.
The primary and secondary applicant said they both attended [a] high school in Tonga which is owned and operated by their church. The first named applicant stated that she was never physically harmed because of her religion but the second named applicant stated that he experienced physical harm in the past when fights erupted between different schools on the rugby field. They both maintained that Mormons in Tongan are subjected to negative comments and societal discrimination.
As discussed with the applicants during the hearing the Tribunal has had regard to the US Department of State 2020 report on International Religious Freedom, Tonga (published May 12, 2021). This report states that the constitution grants freedom to practice, worship, and assemble for religious services. The constitution requires the Sabbath be “kept holy” and while the law does not require registration of religious groups, a religious group must register to be eligible for specific benefits, such as recognition of clergy as marriage officers and tax exemptions. The US government estimates the total population at 106,000 (midyear 2020 estimate) and according to 2016 local census data, membership in major religious groups includes the Free Wesleyan Church of Tonga, 35 percent of the population; the Church of Jesus Christ of Latter-Day Saints, 19 percent; the Roman Catholic Church, 14 percent; the Free Church of Tonga, 12 percent; and the Church of Tonga, 7 percent. Other Christian groups account for approximately 9 percent of the population.
During the hearing the Tribunal discussed with the applicants the lack of any mention in the above report of any current official or societal discrimination affecting religious freedom in the country. The Tribunal also noted the size of the Mormon population in comparison to other religious groups and the absence of information before it to support that Mormons are mistreated by society and/or the police. The primary applicant responded that there has never been a government report about the situation of Mormons in Tonga. She stated that she believes the Tongan authorities have paid little attention to the harm experienced by Tongan Mormons. She expressed fear that her older boys will be targeted and harmed and she stated that the prospect of returning to such an environment causes them a lot of stress.
The Tribunal accepts the applicants are practicing Mormons as are their respective families in Tonga and abroad. The Tribunal accepts the first named applicants’ grandparents may have been targeted in the 1960’s for their religious choices but as discussed with her during the hearing there is no current information to support that such extreme religious intolerance is present in the country today. The Tribunal accepts the applicants may have experienced some verbal harassment and bullying on occasion from members of the community and/or other religious groups in Tonga in the past and that there is a possibility this type of discriminatory treatment might be repeated on occasion should they return to Tonga. However, as discussed with the applicants during the hearing the Tribunal is not satisfied that such behaviour amounts to persecution or significant harm. The applicants indicated that they understood the Tribunal’s observation.

The Tribunal also accepts that the second named applicant may have been injured in physical fights during rival school rugby matches in the past. Whereas it is claimed this violence was due to his religion the Tribunal is not satisfied, based on the evidence before it, that such violence was or is directly attributable to religion. In forming this view the Tribunal had regard to the various news articles provided in submissions which report on school and sport related violence. In the Tribunal’s view that information does not support that the physical violence which flares up from time to time between schools and during rugby matches is religiously motivated.
For completeness, the Tribunal also notes the reference in submissions to the first named applicant being a “Mormon Tongan woman” but there is no independent evidence before the Tribunal to indicate that the combination of being a woman and a Mormon raises the likelihood of her suffering serious or significant harm on return to Tonga.
The Tribunal also notes the reference to the 2006 political unrest which resulted in looting and arson in the capital and the suggestion that rebel groups similar to those involved in that violence might target them on account of their religion. As noted above the Tribunal is not satisfied on the available evidence that the applicants will be at risk of serious or significant harm in Tonga on account of their religion. As to any suggestion that they might face harm generally from rebel groups opposed to the government the Tribunal discussed with them during the hearing the absence of reporting on any repeat events of the type that occurred in 2006. The applicants indicated that they agreed with this.
In reaching its decision the Tribunal also had regard to the long delay between the applicants’ arrival in Australia and the lodgement of their application for a protection visa. When discussing this with them during the hearing they indicated that they were forced to weigh up their options when the second named applicant was taken into immigration detention. They said that they took into account the religious freedom they have experienced in Australia and their desire that their children be raised here. The Tribunal has considered their response but considers the circumstances in which they lodged the application for a protection visa suggests that their claims in respect of their religion are likely exaggerated. In forming this view the Tribunal notes that their written claims indicate that they realised soon after their arrival in Australia that they had been living in fear in Tonga because of the opposition to their religion. If this is true then the Tribunal considers it significant that they waited ten years to seek protection from the Australia government. The Tribunal is of the view that the lengthy delay between their arrival in Australia and their application for a protection visa casts doubt on their claimed fear of returning to Tonga.
The US Department of State’s reporting indicates that the applicants are able to freely practice their Mormon religion in Tonga and they have not claimed that they have been or will be prevented from attending church or otherwise attending to their religious practices in Tonga. The Tribunal accepts that the applicants want to shield their children from any negativity associated with their religion. However, based on the available evidence the Tribunal is not satisfied that there is an objective basis for finding that they will suffer persecution or significant harm in Tonga on account of their Mormon faith.
Fear of harm to the applicant child because of school related violence
The Tribunal accepts based on the news reports submitted by the applicants, that there is a problem with school related violence in Tonga. Again, as discussed with the applicants during the hearing the Tribunal is not satisfied that the news reports support that the violence is directly attributable to religion. Rather, the violent incidents which are reported appear to be due to rivalry between certain schools, often linked to rugby matches.
Additionally, during the hearing the applicants advised the Tribunal that certain of their relative’s children, who are also Mormon, are attending government schools and they do not experience the problems which the applicants have voiced on behalf of their children. The Tribunal suggested to the applicants that their child could also attend a government school. The first named applicant agreed that would be possible but said that she would prefer her children attend their church school.
Notwithstanding the above, the news reports listed in submissions indicate that the Tongan police respond to school and/or sport related violent brawls and they have also met with staff at local schools to discuss strategies to end the violence. When necessary extra police have been deployed to the streets.
The Tribunal notes the applicant child is a [age]-year-old girl and considers she is less likely to be caught up in student brawling than older children playing school rugby matches. The Tribunal considers she could also safely attend a government school where her parents concede their relative’s school aged children are free from violence and harassment on account of their religion.
However, in the unlikely event that she is impacted by school related violence in Tonga, the Tribunal considers the police and other authorities are willing and able to come to her assistance. The Tribunal notes the applicants’ assertion that the police do not protect members of the Mormon faith from communal violence but it is not persuaded on the independent reporting before it that this claim is substantiated.
Having carefully considered the claims and evidence presented in this respect, the Tribunal is not satisfied that there is a real chance or a real risk the applicant child will suffer serious or significant harm on return to Tonga due to school related violence for reason of her being a Mormon or for any other reason.
Fear of harm for reason of perceived wealth and being deportees
During the hearing the first named applicant said that Tonga is a poor island state and people returning from overseas are considered to be wealthy. She said there could also be a perception among some that their return after several years will mean they were deported. When asked what harm they fear for these reasons she said they may be targeted and robbed and her older boys might be beaten up if they wear nice clothes.
The Tribunal put it to the applicants that robbery and assault are criminal acts punishable by law and that available country information indicates that the police have and do crackdown on crime in Tonga. The Tribunal stated that it doesn’t appear the police would refuse to assist them in the event they fell victim to robbery or other acts of criminal violence. The first named applicant responded that there is a lot of poverty in the country and she said that certain people will go to great lengths to get what they want.
As to the assertion the applicants will automatically be regarded as deportees the Tribunal put it to them during the hearing that there is every reason to conclude they will be able to return voluntarily to Tonga using valid Tongan passports and it is therefore difficult to see why they would be considered “deportees”. The Tribunal noted that there is frequent movement of Tongan citizens between Tonga and Australia and that their return home in such circumstances would likely not attract any attention. The first named applicant stated that even if they return voluntarily it will be assumed they have been deported and they will experience name calling which will be mentally hard for their children.
The Tribunal has considered the applicants responses but considers the claim that they will be labelled as deportees to be somewhat speculative. The Tribunal considers the chances of this occurring to be remote. However, even if the Tribunal is wrong and the applicants are perceived to be deportees and subjected to some name calling or derogatory verbal comments for this reason the Tribunal is not persuaded that this will amount to persecution or significant harm.
In the unlikely event that they are robbed and/or assaulted due to being labelled deportees and/or being perceived to be wealthy the Tribunal considers, based on the following independent country reporting, that effective state protection would be available to them.
In a 2020 Crime and Safety Report for Tonga published on 10 June 2020 by the US Department of States Overseas Security Advisory Council it is reported that the Tonga Police Force maintains internal security and reports to the Ministry of Police and Fire Services. The ability of local police to assist victims of crime is limited due to a lack of response vehicles, radios, and other essential equipment, especially on outlying islands.
According to the 2021 US Department of State Country Report on Human Rights Practices: Tonga, civilian authorities maintained effective control over the security forces and members of the security forces committed few abuses.
In its 2021 Freedom in the World report for Tonga, Freedom House reports that crime rates remain relatively low. A number of police officers accused of misconduct have been investigated, dismissed or convicted in recent years.
Earlier news reporting [2] indicates the Tongan police have launched operations aimed at cracking down on crime and ensuring public safety.
[2] “Crack down on crime by police in Tonga”, Radio New Zealand International, 30 December 2016; “Arrests continues in Operation Safe Streets”, Matangi Tonga Online, 17 February 2017
The Tribunal is satisfied that Tonga has effective law enforcement agencies and an infrastructure of laws designed to protect its nationals against harm. While there may be a need for further improvements in police effectiveness there is no evidence before the Tribunal to support that the applicants will be denied police protection for reason of their religion or any other reason if they fall victim to criminality in 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 for reason of them being perceived to be wealthy and/or deportees from another country.
Children don’t speak Tongan and won’t receive the same standard of education in Tonga
In the course of the hearing the first named applicant indicated that it will be difficult for her children to return to Tonga because even though they can understand the Tongan language they cannot speak it. The Tribunal pointed out to the applicants that only their daughter [the third named applicant] is included in the application and as she is just [age] years of age there is every reason to believe that she could quickly learn to speak Tongan if she is immersed in the language, particularly as she can already understand it. While [the third named applicant] may undergo a period of initial readjustment as she gains fluency in the language she will be supported by her parents during this period of time and the Tribunal considers she will not suffer mental or other stress which would amount to serious or significant harm for reason of her ability to speak Tongan.
The second named applicant stated that the most important issue is that their children complete their education in Australia as they will be much better off as a result. The Tribunal put it to the applicants that questions and concerns about the quality of education in Tonga are not something that would enliven the right to protection under the refugee or complementary protection criterion. The applicant’s indicted that they understood the Tribunal’s observations. In any event the Tribunal has located information which indicates that Tonga has in place legislation and polices 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 4-19 years or when the child has completed 12 years of education. The primary enrolment and completion rate is reportedly high as is the recorded literacy rate. The limited number of secondary schools, particularly in rural areas, is considered to be a driver of low enrolment and drop out rates and at the primary school level, equity and quality in provision in remote areas are the greatest challenge, especially in small remote islands.[3]
[3] 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 educational services in Tonga. However, based on the above reporting the Tribunal is satisfied the applicant child would be able to access an adequate level of basic education if she is required to return to Tonga. The Tribunal is not satisfied that there is a real chance or a real risk she will face serious or significant harm on return to Tonga for reason of the standard of education being lower in Tonga than in Australia.
Having carefully considered the claims and evidence both individually and cumulatively, the Tribunal is not satisfied that there is a real chance that the applicants will suffer serious harm if they return to Tonga now or in the reasonably foreseeable future for any of the reasons claimed. Accordingly the Tribunal is not satisfied that they are persons in respect of whom Australia has protection obligations under s.36(2)(a).
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 the applicants will be subjected to treatment amounting to significant harm from persons opposed to their religious beliefs or because of any unrest in the country. In the event [the third named applicant] is impacted by school related violence or the family are at risk of robbery and/or assault by persons who consider them wealthy or resent them because they consider them to be deportees from another country, the Tribunal considers they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm. Accordingly, 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. Accordingly, the Tribunal is not satisfied that the applicants are persons 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 first, second and third named applicants protection visas.
The Tribunal does not have jurisdiction in respect of the fourth, fifth and sixth applicants.
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 5111

20 December 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Standing

Natural Justice