2014968 (Refugee)

[2022] AATA 2865

2014968 (Refugee) [2022] AATA 2865 (12 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2014968

COUNTRY OF REFERENCE:                   Tonga

MEMBER:David McCulloch

DATE:12 July 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

Statement made on 12 July 2022 at 10:16am

CATCHWORDS

REFUGEE – Protection Visa – Tonga – Federal Circuit Court remittal – sexuality – membership of the particular social groups – homosexuality – gay man – applicant has a well-founded fear of persecution – decision under review remitted  

LEGISLATION

Migration Act 1958, ss 5H, 36, 65, 499

Migration Regulations 1994, Schedule 2

CASES

Abebe v Commonwealth of Australia (1999) 197 CLR 510
Luu & Anor v Renevier (1989) 91 ALR 39
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Yao-Jing Li v MIMA (1997) 74 FCR 275

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

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection on 14 October 2015 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (the Act).

2. The applicant, who claims to be a citizen of Tonga, applied for the visa on 5 June 2015. The delegate refused to grant the visa on the basis that the applicant had not lived life as a homosexual man.

3. On 23 December 2016, the Department sent a letter to the applicant to invite him to attend an interview which was scheduled to be conducted on 19 January 2017. The applicant attended the interview.

4. On 18 September 2017, the Tribunal affirmed the delegate’s decision. On [date] October 2020, the Federal Circuit Court remitted the matter by consent. The Court notes that the Minister for Immigration and Border Protection concedes that the decision of the Tribunal dated 18 September 2017 is affected by jurisdictional error. In particular, the Tribunal ‘failed to consider a claim that arose squarely on the material; specifically whether there was a real chance the applicant would face harm on return to Tonga on account of being a homosexual and wishing to pursue relationships with other men’. The matter is now before the Tribunal.

5. The applicant appeared before the Tribunal on 7 July 2022 at 9:30am. The Tribunal was assisted through the use of an interpreter in the Tongan and English languages. The applicant was represented in relation to the review by his legal representative, who attended the hearing.

   Criteria for a protection visa

6. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994. 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.

7. 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.

8. 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).

9. 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.

10. 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

11. 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

12. The issue in this case is the credibility of the applicant and whether, on accepted claims, the criteria for protection are fulfilled. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

13. The following information is extracted from the delegate’s decision record. The applicant was granted a TN-686 visa on 15 August 1997, on which he entered Australia on [date] August 1997. On 9 January 1998, he was granted a Bridging visa A and on 14 January 1998, he was granted a second TN-686 visa. On 14 May 1998, he was granted a Bridging visa A again and on 5 June 1998, he was granted a third TN-686. On 26 August 1998, the applicant became an unlawful non-citizen. On 4 September 1998, the applicant was granted a Bridging visa E. Again on 26 August 1998, the applicant became an unlawful non-citizen. On 4 September 2008, he was granted a Bridging visa E. Again on 19 September 2008, the applicant became an unlawful non-citizen. He self-identified as an unlawful non-citizen to the Department on 31 May 2010 and was granted a two-week Bridging visa E. Again on 15 June 2010, the applicant became an unlawful non-citizen. On 5 June 2015, he applied for a protection visa. He travelled to [Country 1] from December 1996 to January 1997.

14. The following information is apparent from the application for protection forms.

15. The applicant was born on [date] in [Tonga]. The applicant is a Christian who speaks, reads, and writes both Tongan and English. The applicant has never married nor been in a de facto relationship. The applicant’s father is deceased. His mother [and siblings] reside in Tonga, and the applicant is in contact with them by phone. He also has one sister who resides in Australia. The applicant lived at two addresses in Tonga from birth until 1997. The applicant attended primary and secondary school from [year], graduating from [a] College in [year]. He attended a [course] at [a] College from 1989 to 1992. The applicant worked as [an occupation] at [a company] in Tonga from 1993 to 1993, [another role] at [another company] in Tonga from 1994 to 1997. The applicant worked for three employers in Australia from January 1998 to February 2007, from April 2008 to August 2008 and from August 2014 to the time of his protection visa application.

16. The applicant provided a statutory declaration, declared on 25 May 2015, setting out his claims for protection as follows (not corrected for spelling or grammar):

    1.I make this statement in relation to my application for a Protection Visa.

    2.I am a citizen of the Kingdom of Tonga, and identify as a gay man and a fakaleiti. A fakaleiti, in my understanding, is a man who wants to have sex with men, and who behaves and dresses like a woman.

    3.I am afraid to return to Tonga, as I will never be able to live my life as who I really am.

    4.I have been in Australia since 1997 when I came on a tourist visa.

    Background

    5.I was born in Tonga on an [island]. My father died when I was about [age] years old.

    6.My mother lives in Tonga, she is around [age] years old and in poor health.

    7.I am the youngest child in my family. I have [siblings].

    8.One of my sisters, [Ms A], lives in Australia. I live with [Ms A] and her husband, [Mr B].

    9.My other siblings still live in Tonga.

    10.I lived with my mother until I left Tonga and came to Australia. When I came to Australia, one of my sisters went to live with my mother and take care of her.

    11.I was very close to my mother because I was the youngest child and because I lived with her and took care of her after my older brothers and sisters had left home.

    12.I speak to my mother every week on the phone and I really miss her so much. I have not seen her since I left Tonga in 1997. I cannot even talk to her by [social media] as it is very expensive to have Internet and [social media] in Tonga.

    13.Even though I miss my mother so much, I cannot go back to Tonga where I will be forced to hide who I am for the rest of my life. I can never be the person I really am there.

    Sexuality

    14.I am a gay man. I first realised I was different from the other boys when I was at High School.

    15.I would prefer to play with the girls and not play with the boys, and also I did not like to play rugby with the boys, I much preferred to play volleyball with the girls.

    16.I noticed that although I preferred the company of girls more than boys, I was not attracted to girls. The other boys would go on dates with girls, but I never wanted to.

    17.I have never had a girlfriend, and I have never been sexually intimate with a girl.

    18.As time went on I realised that I was sexually attracted to boys not girls. When I was in [about] [age] years old, I had my first sexual experience with a boy from school, called [Mr C]. One night we went together to a building at the school, when the school had already closed so there was nobody around. On this occasion I think we had oral sex only. I was worried that someone might see us or catch us, so we were very careful that there was nobody around.

    19.[Mr C] was in the same year as me at school, but we only met up together this one time for sex. [Mr C] got married after school, as that is what is expected of everyone in Tonga.

    20.I had sex with two other men in Tonga, always in secret.

    21.When I was around [age] years old I met a man called [Mr D], he lived on the same island [as] me. He was about [age] years old. He had a house on another part of the island that was empty, and we met there in secret a few times and had sex. [Mr D] was married and had kids. I felt very ashamed of what we were doing, and was scared of being caught with him.

    22.When I was around [age] years old, I was working [in] the office, and one of the [workers], who was called [name deleted] took me into a back room after school and kissed me. We did not have sex. He was about [age] years old.

    23.Most people in Tonga are very religious and go to Church regularly. My family and I went to [Church] four times each week, on Monday, Wednesday, Friday and Sunday.

    24.The Church in Tonga teaches that being gay is wrong and bad. This is a reason why Tongan people hate gay people, because the Church tells them we are bad. I have to try and ignore this and focus on other aspects of the teachings of the Church. The Church is part of my life and has been for as long as I can remember. I cannot imagine not going to Church.

    25.I go to Church in Sydney, and I am part of the choir.

    26.Since I have been in Australia, I have been scared of getting to know anyone more than one off sexual encounters, especially because my Tongan relatives do not know that I am gay. I am scared that if they found out I was gay, they would hate me and report me to immigration and have me deported.

    27.Mostly my sexual encounters in Australia have been at adult venues. Adult shops have a space where people can go and watch adult movies in smaller rooms. When you meet someone you like, you can then have sex in private in the rooms.

    28.One time, I saw an advert in a local paper in Sydney, for a guy. I called him up and arranged to go to his [place]. I think I paid him about $40, and we had oral and anal sex.

    29.I have attended the Mardi Gras parade most years, but I did not go this year because I had to go to a Church event.

    30.In Australia, I feel that I can be who I am. I have even dressed as a woman, with makeup for a fundraising event. I never dressed up when I was in Tonga, I was afraid to.

    31.I hope that I will eventually meet a man in Sydney, I just want to be able to live my life as a gay man, have a relationship and be able to live together as a couple.

    32.If I get a visa to stay in Australia, and my family members find out that I am gay, at least I will be safe here in Australia. I will have to make the decision about coming out to my family one day if I get a visa. At least in Australia, there are laws to protect gays which would make them think twice about trying to hurt me. This is different to Tonga, where the police, like the community, hate gays.

    33.In Tonga, I would never be able to live with a man as a couple. I know it would be very bad for me to have to marry a woman, I cannot live a lie, and feel shame for who I am any more. I have been gay all my life, I cannot change who I am.

    Life in Tonga

    34.My relatives and other people in Tonga noticed that I was different when I was a child.

    35.It was mainly my male relatives, like older cousins and uncles who would tell me things like “stop playing with the girls, play with the boys like normal”. I would do my best to make sure that I did not get caught playing with the girls, in case I got a hiding.

    36.I was also told to “stop talking like a girl, make your voice like a man’s voice”. I remember being held down by my shoulders and made to speak in a deep voice by one of my uncles. I would try and practice making my voice deeper to stay out of trouble, but it is impossible for me to change it permanently.

    37.For much of my life I have felt very ashamed of who I am and my sexuality, because of Tongan culture and views about homosexuality.

    38.I was never able to live my life as a gay man, as it is not acceptable in society and I am afraid of getting into trouble with the police and the reaction of the community if they knew I was a gay man.

    Leaving Tonga for Australia

    39.I came to Australia in 1997, on a tourist visa to visit my sister, [Ms A]. My sister came to Australia in around 1983.

    40.I had only once been outside of Tonga before I came to Australia. I visited [Country 1] once for about 3 weeks and stayed with extended family there in around 1996.

    41.When I got to Australia, I found out how different it was for gay people here. I saw that gay men were free to live their lives openly and freely, unlike in Tonga where that is definitely not allowed. I have never seen a gay couple in Tonga. This is because we have to keep it hidden because it is considered to be so bad.

    42.I knew that I could not go back to Tonga, back to living a lie, unable to be who I really am in a place where gays are hated. I overstayed my visa and stayed in Australia.

    43.I have lived with my sister and her husband in Sydney for most of the time I have been in Australia, apart from a period of around 6 months in 2008 when I lived in Canberra.

    44.I get on well with my sister and her husband, however they do not know I am gay. If they knew, they would definitely be very unhappy and ashamed of me.

    Reasons for delay in applying for protection

    45.I have lived in Australia without a visa for many years because I could not face going home and continuing to live a lie.

    46.It has been stressful for me much of the time, because I have always been worried that immigration would catch me and send me home. However, I did not think there was any way that I could get a visa, after I made some enquiries about getting a visa.

    47.One time, I had a conversation with a man at my Church who was also a migration agent and helped people with visas. I told him a little bit about my situation and he said something like “well, you’re not married, your sister does not need a carer; you do not have any skills, so there is no visa for you”.

    48.We did not discuss my sexuality, I did not think it would have any relevance to getting a visa, and the man didn’t ask me.

    49.I did not think I had any options for getting a visa. I knew I could not go back to Tonga, so I just remained here.

    50.In around January 2015 I met a Tongan guy at a church function. I know him as ‘[Mr E]’ but I think that is his nickname. I could tell that he is a fakaleiti or gay man like me. We got talking and [Mr E] gave me a phone number for a legal centre, and [Mr E] said they could help me with my visa problem. I contacted the legal centre a couple of days later to make an appointment.

    51.It was very difficult for me at first to talk about my experiences as a gay man, as this is something I have never spoken to anyone about before.

    52.I was worried about contacting the legal centre, but also felt relieved and hopeful that maybe there was a way for me to get a visa so that I can live my life as a gay man.

    53.If I get a visa I hope to be able to finally live my life fully, without fear and worry and hiding who I really am.

17. The applicant provided another statutory declaration, declared on 25 May 2015, detailing his financial hardship and reasons for delay in applying for protection.

18. Following the interview with the delegate, the applicant provided another statutory declaration, declared on 27 January 2017, as follows (not corrected for spelling or grammar):

    I, [name], of [address], in the State of New South Wales, make the following declaration under the Statutory Declarations Act 1959:

    1.I make this statement in support of my application for a Protection visa.

    2.I make this statement about my sexuality, and identity as a gay man.

    3.I am a gay man, by which I mean that I am sexually and physically attracted to men and not to women.

    4.When I say that I am a fakaleiti, I mean that I am gay, it means the same thing for me.

    5.I have only ever dressed as a women for a function, to make the audience laugh.

    6.When I was a child I would occasionally dress in a girl’s dresses, but I soon stopped when my brothers and uncle beat me and told me not to dress like a girl.

    7.I do not feel the need to dress as a woman or to wear makeup in my daily life. Even if I was granted a visa and knew I could live safely in Australia, I would not want to dress like a woman.

    8.However, I am physically attracted to men. I have never had an intimate relationship with a woman and I am not interested in doing so. I have only ever been intimate with other men.

    9.I am afraid of returning to Tonga due to the community’s views of gay men. Being gay is considered to be very bad in Tonga. The Church says that being gay is bad, and most Tongans go to Church very regularly and so they believe what the Bible says.

    Family

    10.I think that my family suspect I am gay, when I lived there I was afraid of my male relatives, they would say things like “stop acting like a girl, act like a man”. They could tell I was different. So, in order to avoid getting a hiding, I would act more like a man. I would try and make my voice deeper when I speak. I also changed the way I walk, so that I do not move my arms or walk in a lady-like way.

    11.I would do this during my daily life to avoid getting smacked by my brothers or other members of the community. By smacked, I mean a punch or being hit with a stick. In Tonga, this is what we mean by smacked.

    12.When I lived in Tonga, I changed my behaviour to avoid getting a hiding, and I also tried to avoid situations where I would have to talk to people.

    13.I also made sure to never get caught with another man. If anyone had known about this, I would have been in serious trouble. I managed to keep our of trouble by doing what I was told, behaving like a man, and keeping my sexuality a secret.

    14.The same thing applies to how I live at my sister’s house. I do not want to get in trouble with her husband, [Mr B] so I always do my best to speak in a deep voice and act like a man. Luckily, they are out at work a lot of the time.

    15.It has been very hard for me to constantly be trying to hide who I really am in this way.

    Australia

    16.I have lived in Australia for many years. For much of this time, I did not have a valid visa. I was afraid to go back to Tonga because of my sexuality.

    17.I did not know for many years that there was a visa I could apply for, I even asked a migration agent at my church and he told me there were no options for me.

    18.I was afraid to go to the Department of Immigration to ask about visas as I thought that if I went there, I would be detained and deported because I did not have a visa. I had heard of this happening to other people who overstay their visa.

    19.I was very careful while I lived in Australia without a visa not to come to the attention of the Department of Immigration. For example, I always made sure to have a valid train or bus ticket and never got myself into any trouble. I was scared of being caught and deported.

    20.Ever since I have been in Australia, I have lived with my sister and her husband. They do not know about my private live, by which I mean that they do not know that I have sex with men. I believe that they might have noticed that I am different, even though I do my best to act like a man and use a deep voice when I am around them. Also they have never seen me have a girlfriend and I am not married, which is uncommon for someone of my age.

    21.We have never spoken to each other about my sexuality.

    22.I could never let them know that I have been seeing men. If they knew that I was seeing men, they would be really angry. I fear that they would kick me out of the house, and I am afraid that they would tell people back in Tonga. I was also afraid that if they knew what I do in my private life, they would not want me here and would report me to Immigration and I would be sent home, and my live would be even worse than before if my family members and community in Tonga knew that I have been having sex with men.

    23.So the way I deal with this situation is to keep my private life very secret, and act as best I can like a man, to avoid any confrontation or trouble. I could never let my family know what I am doing, especially while I do not have a visa and could be sent home.

    24.If I were to get a permanent visa, my life would be very different in Australia. I would be able to live my life and make my dreams come true. My dream is to have a proper relationship with a man, who I love and who loves me. I am not interested in having brief relationships, I would like to settle down and live together with a man. I have never in my life been able to do this, not in Tonga, and not since I have been in Australia.

    25.If I get a visa, I would move out from my sister’s place, as I would be able to get a proper job to support myself. I would be able to live my life. Even if my family members then found out I was living with a man, I would be safe because I would not have to go back to Tonga, and in Australia, the police would protect me from harm.

    26.I have been reliant on my sister for financial support and accommodation the whole time I have been in Australia. I have only had very occasional proper paid work. I was scared to try and find work when I did not have a visa.

    27.I do not pay rent and my sister or niece gives me some money to buy cigarettes and clothes and other essentials. I only ever buy secondhand clothes to save money.

    28.In return, I clean the house and do most of the cooking as my sister and her husband work full time. I also take care of my niece’s children while she is working.

    Relationships in Australia

    29.I have never had a proper relationship with a man in Australia. I have just had casual sexual encounters.

    30.I used to go to an adult shop [that] had rooms in the back for men to go and have sex. The shop also showed gay movies and I would go and watch them. I could walk from my house to this place, it is [in a location]. Early last year, it closed down and is now empty.

    31.I have a friend named [name], we have known each other since around 2001. Occasionally we have sex together, he lives in [a suburb]. However, it is only a casual thing, and he is getting married next weekend so I will not see him again.

    32.I have also had sexual encounters with men in public toilets occasionally. Last week I went to the toilets in [a location], and a man was there and he said to me “let’s go into the cubicle” and so I did, for oral sex.

    33.I sometimes go to a nightclub in [a suburb] called [name deleted]. I go there with my friend [and] his girlfriend. I sometimes meet men there and dance and hang out with them at the club.

    34.I do not want my life to be like this, living mostly in secret. My dram is to find a man that I can spend the rest of my life with, not short term, secret encounters.

1. The applicant provided a further declaration to the Tribunal dated 20 June 2022:

   1.I make this statutory declaration in relation to my application for a Protection Visa. I provide it in addition to and in support of my previous Statutory Declaration dated 25 May 2015, and Statutory Declaration dated 27 January 2017.

   My sexuality

   2.I have previously outlined in detail my sexual history and history as a gay man.

   3.[Ms A], my sister who I live with, is aware that I am a gay man. I told her in or about 2017.

   4.I have lived with my sister for a very long time and we are very close. She was not happy with me when I spoke with her about my sexuality, however as we are so close she has learnt to live with the fact that I am gay and she still supports me. She also understands far better about homosexuality than family and friends in Tonga as she has lived in Australia for most of her life.

   5.My sister knows I have no one else to help me and so she supports me.

   6.Being gay is very shameful in Tonga and because of this I am confident that she has not told any family or friends in Tonga, and that she has not told other Tongan community members in Australia.

   7.If I ever get the opportunity to meet a partner and tried to commence a relationship while living with my sister I don't know that I would continue to get the same care and support from her.

   8.I have never brought a man home to my sister's house.

   9.Although I am getting older and haven't been with a partner in while I have not given up on the idea of finding love and being with a loving partner. My health has also been a barrier to me finding a partner.

   10.I know my sister loves and cares for me but I have never wanted to test the relationship by further exploring relationships with men, by bringing a partner home, particularly while my visa status is precarious.

   11.I have poor health, no Medicare and no income, and because of this I cannot afford to in any way jeopardise my relationship with my sister or test those boundaries, doing so may kill me.

   12.If my visa is granted and I have access to Medicare and other services I would feel more comfortable to be openly dating and hopefully find love.

   13.I fear that if I return to Tonga I would fall into depression and be very isolated and alone.

   14.My family in Tonga consist of siblings who live on [an island]. My siblings in Tonga don't have much, they live off of subsistence farming and fishing. Where they live is remote and I would be worried I would not have sufficient nutrition to sustain me. I could maybe live with them and they might give me a little food but that is the most they could manage.

   15.My mother has now passed away in 2018 from old age. I had never told her that I am gay.

   16.Although my siblings may give me some food and let me stay with them, I do not believe that they would do so if I was open about my sexuality. My siblings who are still in Tonga have lived there for their whole lives and would not be as tolerant of my sexuality as my sister in Australia.

   17.I know that my siblings would hate me if they know I am gay.

   18.If I get healthy and can have a relationship I would want the chance to find love, that is impossible in Tonga.

   19.I continue to have the same fears of violence and harassment as stated in my previous statutory declarations.

   My health:

   20.Since around September 2019, I have been undergoing [treatment] for [Medical condition 1].

   21.Prior to being diagnosed with [Medical condition 1], I had been increasingly feeling [unwell] for about a year.

   22.When I went to see a GP about being unwell, the doctor recommended that I take a blood test. The blood test revealed that [I] needed [treatment].

   23.Shortly afterwards, I started getting [treatment].

   24.I had a [surgery][and] I now use to do my own [treatment] at home. I am required to undergo at home [treatment] five times a day.

   25.[Dr F] [is] my attending physician. I see [Dr F] every 6 months for a check-up.

   26.If I return to Tonga and cannot access [treatment] I will die.

   27.In Australia if I get [the surgery], I may become well. I understand that my chances of [are] improved if I obtain Medicare.

   28.In addition to [Medical condition 1], I am also suffering from diabetes, high blood pressure and eye problems.

   29.I have been told that I may need laser treatment for my eyes as I am losing my sight.

   30.Family in Tonga cannot afford to pay for any treatments or medication and cannot afford to support me.

   31.The island where my family live is around 8 to 9 hours from the main hospital in [Tonga].

   32.I believe that there are no [treatment] machines in Tonga, however I have been told that maybe there might be a small service [there]. I do not know if this service is yet operating or just that there were some discussions about it. I do not know of anyone who has accessed [treatment] in Tonga.

   33.I do know that [Medical condition 1] is a major problem in Tonga and even if there is treatment there may be a long wait list.

   34.I fear I will die very quickly if returned to Tonga, if I don't have [treatment] and I cannot get [the operation] I will die.

   35.I would want to find love, particularly after being away from Tonga for so long I would want to have a deep and loving connecting with someone, but I probably couldn't find anyone as it would put me in a very dangerous position.

   36.I need family to care for me and give me palliative care, so I would always be too scared to tell them that I am gay for fear of withdrawal of care.

   37.My health is so bad and I understand that without [treatment] I will die, I would basically be returning to Tonga where I would be in need of palliative care. It would be far too dangerous to tell family, friends and the community in Tonga that I am gay.

   38.It pains me to know that if I go back to Tonga I will have to choose between dying alone yet honest about my sexuality and who I am, or dying and keeping my sexuality secret out of fear of abandonment in my final days.

   Relocation and state protection

   39.The government in Tonga has clearly demonstrated that they do not condone homosexuality.

   40.Homosexuality remains a criminal offence in Tonga.

   41.I have had to live my whole like knowing that I am not accepted by my community due to my sexuality.

   42.If returned to Tonga I would have to live in fear of being arrested, blackmailed or beaten with no recourse, if I choose to find love.

   43.There is nowhere that I can go to be safe from the harm I will face as a gay man.

   44.There is no treatment for my health in Tonga, and if there is it would only be in [a city]. However, because of my health I cannot live away from family support.

   45.I cannot work and support myself to access treatment privately or care for myself and the government cannot help me.

2. Provided also was a statutory declaration from [a named person] dated 31 January 2017, which states her knowledge of the applicant’s sexuality. The author recalls a few times she has seen the applicant kissing other men at a club in [a suburb].

3. The applicant submitted a letter from his [physician], [Dr F]. The letter was dated 30 June 2022 and provides the applicant’s medical background as follows: [details deleted]. The applicant requires ongoing [treatment] to sustain life which he has started since July 2020. [Dr F] states that she is not aware of any [treatment] facilities in Tonga that can facilitate the applicant’s medical needs. It is [Dr F]’s recommendation for the applicant to remain on [treatment].

   Submissions

4. Provided to the Department in advance of the interview with the delegate was a submission made on the applicant’s behalf. The Tribunal has reviewed the submission and notes particularly the following in relation to its contents.

5. The submission indicates that the applicant has a requisite fear based on his membership of the particular social groups ‘gay men in Tonga’ and ‘fakaleti in Tonga’. The submission indicates that the applicant has gone to considerable lengths to hide these characteristics as a result of the lack of tolerance in Tonga.

6. The applicant identifies as a gay man and is attracted to males and has never had an attraction to women. The applicant has not met someone with whom he has had an ongoing relationship with in Australia. This is a result of the applicant’s fear of the Tongan community in Australia and compounded by the uncertainty as to his visa situation and the fact that he may have to return to Tonga.

7. The applicant’s main sexual encounters have been at adult venues. It is indicated that if the visa is granted the applicant will feel safer in revealing his sexuality.

8. The applicant’s fears have resulted in him internalising fears of shame about his sexuality and going to considerable lengths to hide it to avoid violent repercussions. The applicant’s family and members of his community knew he was different and he knew he should hide his behaviour to avoid harm. The applicant understood from church teachings that being gay is a bad thing.

9. Case law is referred to, indicating that it is inappropriate as a matter of principle to expect the applicant to take steps to avoid persecutory harm by remaining discreet about his sexuality. If the applicant returns to Tonga he will continue to live in secret and within the confines of his family structures. He will have no opportunity to express his sexuality. The concealment would be a product of his fear of disclosure.

10. Submissions are made in relation to criminal legislation in Tonga banning homosexual acts. It is submitted that these laws are more than just a remnant of a bygone age. The opportunity has not been taken to remove these laws. The laws have a pervasive effect in the society and are inherently discriminatory. They express contempt for certain classes of citizens. It is irrelevant that the law is rarely enforced. The presence of the law increases vulnerability to an already vulnerable population and reinforces their second-class status in all areas of life.

11. The applicant’s sexual encounters with men have been conducted in strict secrecy with considerable lengths to conceal the activity for fear of reprisals. The applicant feels he could be caught by police as a result of his homosexuality.

12. Submissions are made in relation to fakaleiti in Tonga. Despite their accepted place in Tongan society fakaleitis have suffered discrimination increased by the presence of religious missionaries. Despite fakaleitis being part of the culture in Tonga they may remain subject to systemic abuse, discrimination and ostracism within society and such treatment remains hidden due to a surface image of acceptability that is quite different in reality.

13. Information concerning the majority Christian population and belief is referred to. Reference is made to the church dominating politico legal and social spheres. It is submitted that religion has impacted significantly on the applicant in relation to his sexuality in terms of the church teaching that engages wrong and bad.

14. Submissions are made that there would be no viable relocation options for the applicant.

15. Submissions are made in relation to the delay in the applicant seeking protection. Firstly, the applicant was not aware that he would have the option of seeking a protection visa based on his characteristics. The option was incongruent with his experience as a gay man from Tonga. It was not until the applicant met someone in January 2015 who advised him of the option that he explored it.

16. The applicant had previously sought the services of a migration agent who advised him as to visa options but did not ask him about his sexuality or advise him as to protection options as a result.

17. A further written submission was made on the applicant’s behalf after the interview with the delegate. Submissions are made that what the applicant means when he says he is a fakaleiti is that he is gay with feminine mannerisms. The applicant’s fears of harm on the basis of being a fakaleiti are contained within his fears of harm as a gay man. The applicant does not identify separately as a man who likes to dress and behave in the manner of a female.

18. Submissions are made in relation to contradictions as to whether the applicant’s family in Tonga and Australia know that he is gay. It is explained that the indication that others know is a product of them knowing that he is different and effeminate in terms of his mannerisms. The applicant has been threatened by family members to change his behaviours. The applicant is not saying that others have knowledge that he engages in sex with men or that he is sexually attracted to men.

19. There has never been any direct discussion by the applicant with his family about his sexuality. The applicant has done his utmost to change his behaviours as a result of the adverse comments and threats of his family.

20. The applicant indicates that his sister and her husband with whom he lives in Australia do not know about the applicant’s private life but he believes that they know he is gay because of his mannerisms and as a product of him, as a middle-aged man, not having girlfriends and not being married. Sexuality is never however discussed.

21. It is submitted that it is reasonable and plausible for the applicant to have hidden his sexual activity from his sister and brother-in-law. Whilst family may suspect the applicant is gay that does not mean that they know he is sexually active with men, a scenario that they definitely would not accept. This is a plausible explanation for the applicant’s lack of engagement with the gay community in Australia, given his extremely closeted lifestyle born out of a culture of fear, as a gay Tongan male.

22. An additional reason for the applicant’s lack of involvement in the gay community in Australia is his lack of holding a lawful visa resulting in him being wholly dependent upon his sister.  The applicant fears when without a visa, coming to the attention of authorities. All of this impedes the applicant’s ability to live independently.

23. It is submitted that if the applicant is granted the protection visa he would feel comfortable living as a gay man.

24. The applicant engages in brief, casual and secretive sexual encounters. He sometimes attends an adult bookshop to meet men. The applicant has attended an adult store in [a suburb]. The applicant occasionally attends a nightclub [where] he sometimes meets up with men.

25. It is submitted that the applicant’s lack of greater involvement in the wider gay community in Sydney does not impact on the credibility of his claims to be a gay man. There are many gay men, irrespective of country of origin, who prefer not to attend gay clubs or be involved in the wider gay community. The applicant does not intend necessarily to participate in such activities if he is granted the visa but describes a more sedate life where he hopes to share his life with a man, rather than brief sexual relationships.

26. It is submitted that the lack of independent reports of persecution and violence against gay men in Tonga is explained by the lack of willingness of individuals harmed to make such reports to the police given societal attitudes against homosexuality.

27. A further submission was provided to the Tribunal dated 4 July 2022. The Tribunal notes the following from the submission. It is submitted that due to the combination of the applicant’s sexuality and/or poor health he will face severe stigma and discrimination, physical assault and sexual assault, psychological harm by the community, arbitrary deprivation of life and cruel and inhumane treatment or punishment. The applicant’s health conditions would result in homelessness, lack of medical care and ability to obtain employment. Living in such circumstances would be inhumane and degrading.

28. Submissions are made as explaining the delay in seeking protection consistent with previous submissions and elaborating on them.

29. Submissions are made as to the risk of arrest, detention and prosecution of the applicant if caught engaging in homosexual acts in light of criminalisation of homosexual acts in Tonga.

30. It is submitted that the applicant wishes to be more open about his sexuality. His precarious circumstances and his continuing to live in fear in Australia and act discreetly are so as not to jeopardise his current living circumstances.

31. Independent information is provided concerning criminalisation of sodomy in Tonga including recent evidence of a prosecution in Tonga although in relation to a sexual assault by a male against a female utilising the offence of sodomy. Reference is made to the absence of any laws in Tonga protecting homosexuals.

32. Submissions are made including country information as to the influence of Christianity in Tonga.  The negative attitude of the church towards homosexuality permeates the society.

33. Submissions are made as to community violence against homosexual men. It is submitted that the lives of homosexual men are riddled with stigma, discrimination, violence and sexual assaults. There is an underreporting of crime in these respects.

34. Decisions of the Department are referred to, finding that a fakaleiti man and homosexual was owed protection in Tonga. Reference is made to the representative firm in the past 12 months assisting five other homosexual and/or fakaleiti men successfully obtain protection visas on the basis of the harm they will face due to their sexuality.

35. Submissions are made that US Department of State reports have consistently indicated over the last seven years that homosexuals face social stigma or intimidation which may have prevented reporting of incidents of violence and discrimination.

36. Submissions are made with respect to fakaleiti in Tonga. It is submitted that there is a difference between fakaleiti and gay men with greater acceptance towards the former. To look alone at the treatment of fakaleiti in order to assess harm for a homosexual man is erroneous.

37. Submissions are made with respect to domestic violence in Tonga and the lack of laws governing sexual assault. Submissions are made with respect to the psychological impact of discrimination on the applicant. Submissions are made as to the lack of state protection in Tonga.

38. Submissions are made in relation to the applicant’s [Medical condition 1] and the lack of information indicating [treatment] in Tonga. It is indicated that without access to [treatment] the applicant will die.

39. Submissions are made that the applicant cannot relocate in Tonga given the criminalisation of homosexual acts are applicable across all of Tonga and the prevalence of Christianity across the country.

40. The conclusion acknowledges that the applicant is not fakaleiti. However, there is a perception that homosexual men must also be fakaleiti and it is due to this perception that the applicant claims requisite harm on his perceived membership of the fakaleiti social group.

    Independent information

41. The Country of Origin Information Services Section (COISS) of the Department of Home Affairs provided a report dated 8 March 2021 in relation to an update on the status of fakaleitis (leitis) and homosexual men in Tonga which reads as follows:

    1.   Please provide an update to the March 2017 Country of Origin Information Services Section (COISS) research response on leitis and homosexual men in Tonga.

    As indicated in the question, the Country of Origin Information Services Section (COISS) has previously completed a research response on the situation for fakaleitis (leitis) and homosexual men in Tonga in March 2017; the details of this response can be found in the ‘Additional Reading’ section below. As an update has been requested, this response provides information drawn from sources published after March 2017.

    Sodomy is outlawed under Section 136 of Tonga’s Criminal Offences Act. Persons convicted for the act of sodomy can be sentenced to a period of up to ten years’ imprisonment.[1] Courts are also permitted under Section 142 of the Criminal Offences Act to impose a sentence of whipping instead of, or in addition to, a term of imprisonment for an offence committed under Section 136.[2] No recent reports have been located, however, which refer either to prosecutions in relation to sodomy, or to the provisions under Sections 136 and 142 of the Criminal Offences Act having been enforced.[3] In relation to Section 136, the US Department of State’s Overseas Security Advisory Council (OSAC) reported in June 2020 that ‘there are no reports of prosecutions under this provision for consensual sexual conduct between adults’.[4] The US Department of State also reported in March 2020 that there had been no reports of prosecutions under this provision during 2019.[5] Amnesty International also reported in April 2019 that there was no record of the provisions included in Sections 136 and 142 of the Criminal Offences Act having been enforced.[6] It should be noted, however, that in 2013 Tonga’s Supreme Court refused to grant custody of a child to a homosexual man on the basis that, because the Criminal Offences Act prohibited ‘carnal knowledge between consenting adults of the same sex’, a child could not be entrusted into the care of a person whose lifestyle put them at ‘a very real risk of prosecution’.[7]

    [1] ‘Criminal Offences Act (Amended 2016)’, Government of Tonga, 2016, p.58, 20210205145631; ‘Tonga - OutRight Action International’, OutRight Action International, n.d. (accessed 5 February 2021), 20210205143957; ‘State-Sponsored Homophobia 2020: Global Legislation Overview Update’, Mendos, L R, International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), 15 December 2020, p.141, 20201222140105; ‘Tonga 2020 Crime & Safety Report’, Overseas Security Advisory Council (OSAC), 10 June 2020, p.4, 20210302160141; ‘Country Reports on Human Rights Practices for 2019 – Tonga’, US Department of State, 11 March 2020, Section 6, 20200312110809; “I do not want to say I’m transgender, I’d rather just say I’m a woman”, Amnesty International, 18 April 2019, 20190808113615

    [2] ‘Criminal Offences Act (Amended 2016)’, Government of Tonga, 2016, p.59, 20210205145631; ‘State-Sponsored Homophobia 2020: Global Legislation Overview Update’, Mendos, L R, International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), 15 December 2020, p.141, 20201222140105; “I do not want to say I’m transgender, I’d rather just say I’m a woman”, Amnesty International, 18 April 2019, 20190808113615

    [3] Searches were conducted using the CISNET database and the Google, Yahoo, Bing and DuckDuckGo internet search engines during the course of the research undertaken in relation to this request.

    [4] ‘Tonga 2020 Crime & Safety Report’, Overseas Security Advisory Council (OSAC), 10 June 2020, p.4, 20210302160141

    [5] ‘Country Reports on Human Rights Practices for 2019 – Tonga’, US Department of State, 11 March 2020, Section 6, 20200312110809

    [6] “I do not want to say I’m transgender, I’d rather just say I’m a woman”, Amnesty International, 18 April 2019, 20190808113615

    [7] ‘State-Sponsored Homophobia 2020: Global Legislation Overview Update’, Mendos, L R, International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), 15 December 2020, p.141, 20201222140105

    Tonga has been described as having ‘an active LGBTQ community’,[8] but also as having ‘no legal protections for LGBTI people’.[9] There is no provision in Tongan law which specifically prohibits discrimination based on sexual orientation or gender identity, or which addresses hate crimes. In addition, no criminal justice mechanisms exist to aid in the prosecution of bias-motivated crimes against LGBTIQ individuals in Tonga.[10] It has been reported that LGBTIQ Tongans ‘face discrimination, harassment, and social stigmatization’, and that ‘[a] recent surge in fundamentalism and religious fanaticism has fomented anti-LGBTIQ sentiment in Tonga’.[11] It has also been suggested that social stigma or intimidation may prevent reporting of incidents of violence or discrimination towards LGBTIQ Tongans.[12] It should be noted, however, that in May 2018 a member of the Tongan royal family spoke out against the anti-homosexual views expressed by rugby player Israel Folau.[13]

    [8] ‘Tonga royal family member speaks out against rugby player Israel Folau’s anti-gay views’, Smith, L, Pink News, 10 May 2018, 20210302124555

    [9] ‘LGBTI youth shelter devastated by Cyclone Gita’, Gay Star News, 19 February 2018, 20210205144401

    [10] ‘Tonga 2020 Crime & Safety Report’, Overseas Security Advisory Council (OSAC), 10 June 2020, p.4, 20210302160141; ‘Country Reports on Human Rights Practices for 2019 – Tonga’, US Department of State, 11 March 2020, Section 6, 20200312110809

    [11] ‘Tonga - OutRight Action International’, OutRight Action International, n.d. (accessed 5 February 2021), 20210205143957

    [12] ‘Tonga 2020 Crime & Safety Report’, Overseas Security Advisory Council (OSAC), 10 June 2020, p.4, 20210302160141; ‘Country Reports on Human Rights Practices for 2019 – Tonga’, US Department of State, 11 March 2020, Section 6, 20200312110809

    [13] ‘Tonga royal family member speaks out against rugby player Israel Folau’s anti-gay views’, Smith, L, Pink News, 10 May 2018, 20210302124555

    Fakaleitis (leitis) are persons who are assigned male at birth and take on a feminine gender role.[14] This subculture of transgender dress and behaviour is generally accepted in Tongan society,[15] and the group is respected and plays a specific cultural role.[16] This role exists particularly in relation to large social events, where leitis host and serve the community, and they also play a vital role in running significant ceremonies for the Tongan royal family,[17] by whom leitis are reported to be ‘remarkably loved’.[18] Evangelical religious groups in Tonga, however, are reported to have fuelled a hostile environment for LGBTI people, with the Pentecostal Church in particular having been vocal in condemning persons ‘with non-heteronormative sexual orientation and gender identities’.[19] Amnesty International reported in March 2019 that leitis had made recent progress in gaining increased acceptance from the community in Tonga, including among church leaders, but also acknowledged that some still preached against them. It was also reported that ‘[m]any leitis continue to be thrown out of their homes due to homophobia and transphobia and end up at a safehouse set up by the Tonga Leitis Association’.[20] Reports have been located which refer to transgender people in Tonga, and leitis in particular, having been subject to discrimination, abuse, harassment, bullying, threats and violence.[21] Transgender persons in Tonga are not permitted by law to change their name or to change their gender marker on official documents.[22] There is also a provision in Section 81(5) of the Criminal Offences Act in relation to cross dressing which could potentially be used against transgender people,[23] although no recent reports have been located which make specific reference to prosecutions under this provision.[24]

    [14] ‘Tonga - OutRight Action International’, OutRight Action International, n.d. (accessed 5 February 2021), 20210205143957

    [15] ‘Tonga 2020 Crime & Safety Report’, Overseas Security Advisory Council (OSAC), 10 June 2020, p.4, 20210302160141; ‘Country Reports on Human Rights Practices for 2019 – Tonga’, US Department of State, 11 March 2020, Section 6, 20200312110809

    [16] ‘Tonga - OutRight Action International’, OutRight Action International, n.d. (accessed 5 February 2021), 20210205143957

    [17] ‘A place for Letis: Joey Joleen Mataele on being transgender in Tonga’, Munro, K L, National Indigenous Television (NITV), 4 March 2019, 20210302150358

    [18] ‘Meet the transgender community resisting anti-trans Colonial-era laws on the remote Tongan islands’, Bloodworth, A, Pink News, 6 July 2018, 20210303132015

    [19] ‘Portrait of an activist: Cruella Oshtara’, Amnesty International, 30 May 2019, 20210205144207; ‘A place for Letis: Joey Joleen Mataele on being transgender in Tonga’, Munro, K L, National Indigenous Television (NITV), 4 March 2019, 20210302150358

    [20] ‘Tonga activist proud to be “like a lady”’, Amnesty International, 5 March 2019, 20210226160950

    [21]  ‘Portrait of an activist: Cruella Oshtara’, Amnesty International, 30 May 2019, 20210205144207; “I do not want to say I’m transgender, I’d rather just say I’m a woman”, Amnesty International, 18 April 2019, 20190808113615; ‘A place for Letis: Joey Joleen Mataele on being transgender in Tonga’, Munro, K L, National Indigenous Television (NITV), 4 March 2019, 20210302150358; ‘Meet the transgender community resisting anti-trans Colonial-era laws on the remote Tongan islands’, Bloodworth, A, Pink News, 6 July 2018, 20210303132015; ‘A time to shine for Tonga’s silenced leitis’, Vui-Talitu, S, 19 May 2018, 20210205145104

    [22] ‘Trans Legal Mapping Report: Recognition Before the Law’, International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), p.241, 20201001140359; ‘Portrait of an activist: Cruella Oshtara’, Amnesty International, 30 May 2019, 20210205144207

    [23] ‘Criminal Offences Act (Amended 2016)’, Government of Tonga, 2016, pp.38–39, 20210205145631; ‘Trans Legal Mapping Report: Recognition Before the Law’, International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), p.241, 20201001140359; ‘Tonga Leitis Association working to reform current laws’, Radio New Zealand, 10 August 2017, CXC90406613595

    [24] Searches were conducted using the CISNET database and the Google, Yahoo, Bing and DuckDuckGo internet search engines during the course of the research undertaken in relation to this request.

    It is noted that the March 2017 COISS research response provided information on police protection provided to LGBTIQ Tongans; no more recent information was located which made specific reference to this.[25] The OSAC reported in June 2020 that ‘[t]he 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.’[26]

    [25] Searches were conducted using the CISNET database and the Google, Yahoo, Bing and DuckDuckGo internet search engines during the course of the research undertaken in relation to this request.

    [26] ‘Tonga 2020 Crime & Safety Report’, Overseas Security Advisory Council (OSAC), 10 June 2020, p.5, 20210302160141

    Recent information on the situation for LGBTIQ persons in Tonga

    Section 136 of Tonga’s Criminal Offences Act includes a provision which allows for a sentence of up to ten years’ imprisonment to be imposed for the act of sodomy. The text of Section 136 reads:

    Whoever shall be convicted of the crime of sodomy with another person or bestiality with any animal shall be liable at the discretion of the Court to be imprisoned for any period not exceeding 10 years.[27]

    [27] ‘Criminal Offences Act (Amended 2016)’, Government of Tonga, 2016, p.58, 20210205145631

    Section 142 of the Criminal Offences Act includes a provision allowing a court to impose the sentence of whipping instead of, or in addition to, imprisonment if a male person is convicted of an offence under Section 136. The text of Section 142 reads:

    Whenever any male person shall be convicted of any offence against sections 106, 107, 115, 118, 121, 122, 125, 132 and 136 of this Act the Court may, in its discretion in lieu of or in addition to any sentence of imprisonment authorised under this Act order the person so convicted to be whipped in accordance with the provisions of section 31 of this Act.[28]

    [28] ‘Criminal Offences Act (Amended 2016)’, Government of Tonga, 2016, p.59, 20210205145631

    An undated webpage on the website of OutRight Action International,[29] accessed on 5 February 2021, provided the following overview of the situation for LGBTIQ Tongans and the fakaleiti in Tonga:

    [29] According to its website, OutRight Action International is a US-based NGO that ‘fights for the human rights for LGBTIQ people everywhere’ and ‘works at the international, regional and national levels to research, document, defend, and advance human rights for LGBTIQ people around the world’:

    The Criminal Offences Act of Tonga outlaws same-sex sexual activity, prescribing a maximum penalty of 10 years imprisonment. Tongan society is socially conservative and highly religious. A recent surge in fundamentalism and religious fanaticism has fomented anti-LGBTIQ sentiment in Tonga. LGBTIQ Tongans face discrimination, harassment, and social stigmatization. Tonga recognizes gender diversity in relation to the fakaleiti, who are people assigned male at birth and take on a feminine gender role. Though the fakaleiti are respected and play a specific cultural role in Tonga, they still experience some stigmatization and discrimination.[30]

    [30] ‘Tonga - OutRight Action International’, OutRight Action International, n.d. (accessed 5 February 2021), 20210205143957

    In a December 2020 report, the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA)[31] provided the following information regarding anti-sodomy laws that are in effect in Tonga and the judicial enforcement of these laws:

    [31] According to its website, the International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA) ‘is a worldwide federation of more than 1,600 organisations from over 150 countries and territories campaigning for lesbian, gay, bisexual, trans and intersex human rights’:

    Under Section 136 of the Criminal Offences Act (1988) sodomy is penalised with up to 10 years’ imprisonment.

    Moreover, Section 142 provides for corporal punishment for those convicted of sodomy, establishing that when a male person is convicted for the crime of sodomy, “the Court may, in its discretion in lieu of or in addition to any sentence of imprisonment authorised under this Act order the person so convicted to be whipped”.

    Section 140 sets the evidentiary standards as follows: “on the trial of any person upon a charge of sodomy or carnal knowledge it shall not be necessary to prove the actual emission of seed but the offence shall be deemed complete on proof of penetration only”.

    …In 2013, the Supreme Court refused to grant custody of a child to a gay man, in FA 39 of 2011. The Supreme Court stated that because Tonga’s criminal law still prohibits carnal knowledge between consenting adults of the same sex, “[n]o court would entrust a very young child into the care of person whose lifestyle carries with it a very real risk of prosecution.”

    This decision was adopted despite the Tongan Judicial Code of Conduct Rules (2010) incorporating the Bangalore Principles of Judicial Conduct, which explicitly prohibit judges from discriminating against any person based on “irrelevant grounds”, including “sexual orientation”.[32]

    [32] ‘State-Sponsored Homophobia 2020: Global Legislation Overview Update’, Mendos, L R, International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), 15 December 2020, p.141, 20201222140105

    In its 2020 Crime & Safety Report for Tonga, published on 10 June 2020, the OSAC reported that:

    Sodomy is a crime with a maximum penalty of ten years in prison, but there are no reports of prosecutions under this provision for consensual sexual conduct between adults. No law specifically prohibits discrimination based on sexual orientation or gender identity, nor does the law address hate crimes. No criminal-justice mechanisms exist to aid in the prosecution of bias-motivated crimes against LGBTI+ individuals. Tongan society generally accepts a subculture of transgender dress and behavior, and a prominent NGO’s annual festival highlights transgender identities. Social stigma or intimidation may prevent reporting of incidents of violence or discrimination.[33]

    [33] ‘Tonga 2020 Crime & Safety Report’, Overseas Security Advisory Council (OSAC), 10 June 2020, p.4, 20210302160141

    In its 2019 Country Report on Human Rights Practices for Tonga, published on 11 March 2020, the US Department of State provided the following relevant information:

    Sodomy is listed as a crime with a maximum penalty of 10 years in prison, but there were no reports of prosecutions under this provision for consensual sexual conduct between adults. No law specifically prohibits discrimination based on sexual orientation or gender identity or addresses hate crimes. No criminal-justice mechanisms exist to aid in the prosecution of bias-motivated crimes against lesbian, gay, bisexual, transgender, or intersex individuals. Society accepted a subculture of transgender dress and behavior, and a prominent NGO’s annual festival highlighted transgender identities. Social stigma or intimidation may have prevented reporting of incidents of violence or discrimination.[34]

    [34] ‘Country Reports on Human Rights Practices for 2019 – Tonga’, US Department of State, 11 March 2020, Section 6, 20200312110809

    It should be noted that a May 2018 Pink News report referred to a member of the Tongan royal family having criticised the anti-homosexual views expressed by rugby player Israel Folau:

    A member of the Tonga royal family has spoken out against the homophobic views of rugby player Israel Folau.

    The Australian rugby union player sparked a backlash in April after writing gay people would go to “hell” unless “they repent their sins and turn to God” on his Instagram page.

    A number of people have criticised Folau for his anti-gay views, including the Honorable Frederica Tuita Filipe, the daughter of Tonga’s Princess Royal. Folau is Tongan by descent.

    “Obviously the way we represent our interpretation of God’s word & love is different,” she wrote on Twitter.

    “My silence was my attempt at respecting our different interpretations but I fear by doing that I’m encouraging the marginalisation of a group of people I love & serve as much as any other Tongan.”

    “You’ve worked hard to be in a position of leadership, I was born into mine. I’ve seen how forgiveness, love & inclusion bring people closer to God. I hope the trials you face give you the strength to open your heart & mind to differing views,” she added.

    Homosexuality is illegal in Tonga and carries a maximum penalty of ten years’ imprisonment, but the Polynesian state has an active LGBTQ community.[35]

    [35] ‘Tonga royal family member speaks out against rugby player Israel Folau’s anti-gay views’, Smith, L, Pink News, 10 May 2018, 20210302124555

    A February 2018 Gay Star News report stated that ‘[h]omosexuality is illegal in Tonga and although the fakaleiti (transgender) are more widely excepted [sic], there are no legal protections for LGBTI people.’ It was also stated that ‘LGBTI people have had to put up with criticism from conservative Christians’.[36]

    [36] ‘LGBTI youth shelter devastated by Cyclone Gita’, Gay Star News, 19 February 2018, 20210205144401

    Recent information on the treatment of fakaleitis (leitis) in Tonga

    In a September 2020 report on the recognition of transgender rights before the law around the world, the ILGA provided information in specific relation to Tonga. It was reported that it was not possible for a transgender person to change their name under Tongan law,[37] as Section 8(a) of the Birth, Deaths and Marriages Registration Act stated that:

    [37] ‘Trans Legal Mapping Report: Recognition Before the Law’, International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), p.241, 20201001140359

    Names other than surnames cannot be altered except where there has been a mere clerical error. A person who is habitually known by a forename other than that in the register may swear an affidavit stating the fact in front of a sub-Registrar who will witness the affidavit and if satisfied as to its truth affix the court seal.[38]

    [38] ‘Trans Legal Mapping Report: Recognition Before the Law’, International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), p.241, 20201001140359

    It was also indicated that a transgender person would not be able to change their gender marker on official documents.[39] The report also noted that Section 81 of the Criminal Offences Act was used against transgender and gender diverse people, and drew specific attention to the provision included in Section 81(5).[40] The text of Section 81(5) reads:

    [39] ‘Trans Legal Mapping Report: Recognition Before the Law’, International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), p.241, 20201001140359

    [40] ‘Trans Legal Mapping Report: Recognition Before the Law’, International Lesbian, Gay, Bisexual, Trans and Intersex Association (ILGA), p.241, 20201001140359

    81 Trading in prostitution

    …(5) Any male person who, whilst soliciting for an immoral purpose, in a public place with intent to deceive any other person as to his true sex, has on or about his person any article intended by him to represent that he is a female or in any other way impersonates or represents himself to be a female shall be guilty of an offence and shall upon conviction be liable to a fine not exceeding $1,000 or to imprisonment for a period not exceeding one year or to both such imprisonment and such fine.[41]

    [41] ‘Criminal Offences Act (Amended 2016)’, Government of Tonga, 2016, pp.38–39, 20210205145631

    It should be noted that an August 2017 Radio New Zealand report referred to the Tonga Leitis’ Association being engaged in advocacy to have the provision of Section 81(5) of the Criminal Offences Act amended. The report read:

    The president of the Tonga Leitis' Association wants the criminal offences act of 1988 to be looked at, to avoid it being used against the LGBT community.

    Henry Aho and his team will be visiting the East and West districts of Tongatapu this month to propose the changes.

    Mr Aho said there were two clauses from the act that the association wanted to amend or revise.

    "Section 81 deals with cross dressing for moral purposes. There's an element of solicitation there, but the wording is quite vague and we don't want people to use it as a weapon against LGBT people just because a man is dressed as a woman in a public place and things like that. Section 136 probably has more to do with the homosexual side of things and this is the law on sodomy, so we've got revised wording for that."[42]

    [42] ‘Tonga Leitis Association working to reform current laws’, Radio New Zealand, 10 August 2017, CXC90406613595

    In a May 2019 report, Amnesty International provided information regarding the treatment of leitis in Tonga, which particularly highlighted the forms of societal mistreatment this group received and the laws that targeted them and the LGBTI community in Tonga more generally. The report read:

    Bullying and violence in schools is a big problem for the leitis, which forces them to leave school and affects their mental health.

    Cruella Oshtara is a 37-year-old indigenous trans-activist from Tonga. As a ‘leiti’ – someone born male who identifies as a woman – she fights for the rights of the LGBTI community. She serves as vice president of the Tonga Leitis Association, pressing for the reform of antiquated and discriminatory laws, and leading a national anti-bullying campaign. She also runs an innovative program on care for aging LGBTI people.

    Cruella and her team at the Tonga Leitis Association have called for the repeal of colonial-era laws on sodomy, which criminalise same-sex sexual activity between consenting adults. They also aim to repeal a discriminatory prostitution provision that specifically targets leitis.

    Cruella faces many challenges in advocating for people with non-heteronormative sexual orientation and gender identities in Tonga. First, some religious groups are fueling a hostile environment for LGBTI people. The Pentecostal Church, in particular, has been vocal in condemning people with non-heteronormative sexual orientation and gender identities.

    Social media, she explains, is being used as a platform by religious groups to perpetuate hate and hostility toward the LGBTI community. Aggressive comments targeting LGBTI people, like ‘you’re going to hell’ and ‘can’t wait to see you burn in hell,’ have become common on social media. She emphasises that the constant hate and threats of violence affect leitis’ mental health and overall well-being.

    In general, she feels that harassment and bullying of people with diverse sexual and gender identities is on the rise. Such abuse is common in high schools, she said. In one case in 2018, a 13-year-old leiti student was badly beaten up by other students and she decided to drop out of school. Cruella says her association supports students who are forced to leave school due to bullying and violence sparked by their sexual orientation and gender identity. Because of a shortage of funding, however, the support her organization can provide is limited.

    Cruella also says that elderly LGBTI people have a lack of support services, and that many withdraw from their communities and become isolated. They face mental health problems, an increasingly serious challenge to living a normal life.

    Cruella wants the Tongan government to repeal laws that stigmatize and increase hostility towards LGBTI people, and to take urgent measures to address the bullying of young leitis in high school, as well as violence against them.​[43]

    [43] ‘Portrait of an activist: Cruella Oshtara’, Amnesty International, 30 May 2019, 20210205144207

    An April 2019 Amnesty International report provided the following information regarding the treatment that a leiti had received throughout her life in Tonga, which also particularly highlighted the societal mistreatment she had received:

    Joey Mataele, 54, is an activist from Tonga who's faced abuse her entire life. As a 'leiti' – someone who is born a man but identifies as a woman – she's campaigning for change, so she can finally be recognised for who she really is; a brilliant, brave woman.

    “I was bullied by teachers and students. On my way home, people would walk past and slap me on the back of my head or call me a faggot. I would get into fights. I was always fighting," remembers Joey Mataele, a prominent leiti activist from Tonga.

    Joey grew up on the tropical Pacific Island of Tonga, known as the Friendly Islands because of the hospitable reception the inhabitants gave explorer Captain James Cook when he first landed there in 1773.

    In her childhood, Joey could only dream of such a warm reception from Tongans. She didn't feel welcome. In fact, she still has to fight for her place in her native Tongan community as members of her own family rejected her for who she is.

    “My brothers and cousins would verbally abuse me, one of them put a rope around my neck, pulling it tight to make me sound like a man. On one occasion, he nearly choked me to death," Joey recalls.

    Besides such painful attacks and the clear message to stick to accepted gender norms, she didn't give in. At the age of 14, she decided to openly live as a woman – a decision that put her at odds with family and school friends who saw her as a boy.

    “I felt more as a woman than as a man," says Joey.

    In the past, this wouldn't have been such a problem. Pre-colonial Tonga had a fluid notion of gender and was tolerant of same-sex relationships and transgender people, now called leitis. The leitis are a community of people that embrace diverse gender and sexual identities. They lived respected lives within society. But with the advent of colonialism and Christianity from the late 18th century, Tongan society became much more conservative and religious. As a result, attitudes towards leitis have now been tainted by prejudice and anti-LGBTI sentiments are rife.

    Consensual sexual activity between men is illegal in Tonga under sections 136-142 of The Criminal Offences Act. It is punishable with imprisonment of up to ten years and whipping, but there is no record of the law being enforced. Same-sex relationships are not legally recognized, and it is illegal to change one's gender. To stop this discrimination, Joey defends the rights of leitis as an LGBTI activist. 

    …Expressing her gender identity has made Joey a target for abuse. When she was 14, she was raped by a man who worked for her father but couldn't report it as male rape is illegal for both perpetrator and victim in Tonga.

    “I was threatened by that guy not to talk about it, otherwise he'd do something to me. But when I realized I got a sexually transmitted disease from him, that's when I had to tell my grandmother because I was suffering."

    Joey's own father had no sympathy, he thought that her dressing as a woman was a sin and that she had provoked the rape. He had told her many times to “stop acting like a woman".

    This traumatic experience also marked a new beginning for Joey. “I decided to not tolerate any more of it," she recalls. “I left school and started working. Throughout all of this, I had the support of my grandmother. She gave me her blessing."

    Joey does not see herself as a victim but as a strong woman who uses what she's been through to support others and advocate for the rights of leitis rights in Tonga.

    “I think my past experiences have motivated me to become an activist, it has strengthened me. It has empowered me to fight for the rights of our people. I don't want the same problems that I went through during childhood to happen to the younger generation," she says.

    Together with other leitis, Joey founded Tonga Leitis Association in 1992 to campaign for the decriminalization of homosexuality and cross-dressing.

    “One of the reasons why we established the association is to give a safe space for our people, our LGBTI community, to come and sit and talk about our issues, to be open-minded about what's going on, to share what we've faced in life… At least we have a space where we can laugh, be ourselves and relax."

    Joey, the child who used to always end up in fist fights, has kept her fighting spirit but uses different methods now. “These days, I don't do physical fighting. I do it properly. I sit down and talk to them. I am a humble fighter," she says of her work educating people about leitis and LGBTI issues.

    Joey and her fellow leitis also campaign for changes to the law which will allow them to change their gender identity so that they can be recognized for who they are. There are an estimated 400 leitis living in Tonga.

    “I really do not want to say that I'm transgender, I would rather just say that I am a woman… once the government will allow me to change my identity, my ID card, my passport and all that."

    Ending legal discrimination of LGBTI individuals would finally make Tonga the Friendly Islands for all its people.[44]

    [44] “I do not want to say I’m transgender, I’d rather just say I’m a woman”, Amnesty International, 18 April 2019, 20190808113615

    A March 2019 National Indigenous Television (NITV) report provided the following information about the situation of leitis in Tonga:

    The leitis have long had a ‘place’ in Tongan culture, particularly with regard to large social events, where they will host and serve the community and additionally with regard to the Tongan Royal family where, at official royal gatherings the leitis are a vital part of ensuring the smooth running of significant ceremonies.

    Yet despite the leitis’ important roles within Tongan society; abhorrent discrimination, bullying and consistent judgments are thrown their way, often by a group of evangelists of evangelism; a preaching religion that’s only come to the ancient Polynesian community in recent years due to globalisation. It’s also particularly soul destroying when this abuse sometimes comes from their own families.[45]

    [45] ‘A place for Letis: Joey Joleen Mataele on being transgender in Tonga’, Munro, K L, National Indigenous Television (NITV), 4 March 2019, 20210302150358

    A July 2018 Pink News report also provided information about the situation of leitis. This included an example of ‘a fundamentalist minister’ threatening the group with violence if they pushed for the reform of Tongan laws which ‘criminalize LGBT+ people’, but also noted that they were ‘remarkably loved by the Tongan royal family’. The relevant text of the report read:

    Here, in the deepest South Pacific, extreme Conservative values enforce Colonial-era laws which weigh heavily on the shoulders of the Leitis, a group of transgender women who have been remarkably resisting the norm in Tonga for generations.

    As with any remote community, progress for the Leitis has been slow, rather, standstill, since the oppressive Colonial rule of the British.

    Without the modern medical facilities of the populated mainland, they persevere without hormone therapy or gender reassignment surgery and in the face of adversity from traditionalist close-minded islanders.

    The plight of the Leitis caught the eye of award-winning US filmmakers Dean Hamer and Joe Wilson, whose film Leitis In Waiting, they say, is the first time anyone has told the story of the famous Leitis from the perspective of the group themselves.

    Resisting the locals who make the Leitis feel like outcasts on their own soil, their main opposers are anti-gay and anti-trans religious groups who enforce Tonga’s anti-trans laws which criminalise the Leitis in their own home.

    “One of the striking lines in the film is when a fundamentalist minister tells the Leitis: ‘You have no rights,'” Dean and Joe remember in a talk with PinkNews.

    “When we started asking questions about Colonial-era laws that are still on-the-books in Tonga that criminalize LGBT+ people, he responded by saying that there would be violence against Leitis if they or anyone pushed for reform.

    “That a so-called man of God would say such things so brazenly on-camera was a stark reminder of the day to day, minute to minute realities and threats that transgender and LGB people face in Tonga and so many other parts of the world.

    “They are always walking a very fine line,  needing to be conscious of those around them and what might set them off or spark something violent in other people, even in the churches and own families.”

    Existing separately to the religious Tongan mould, the Leitis are treated “with a very deep suspicion.” Local Tongan people don’t believe human rights “should be recognized outside of a religious context.”

    The Leitis lead a moderate and earthly existence on the island – exiled by most, they are remarkably loved by the Tongan royal family, and exist in close proximity to them, a relationship which is explored deeply in the film.

    The contradiction goes further, as the Leitis – as well as exiled by Tongan law – are also in cahoots with important Tongan leaders and helped Dean and Joe enable some of the film’s most startling interviews.

    One of the Leitis the filmmakers worked closely with was called Joey. “We were concerned it would be difficult to connect to the Kingdom’s leaders,” Dean and Joe tell us.

    “But with Joey as the lead, it made filming easier. We were able to talk to the Catholic Cardinal and the heads of other mainline churches… and even the princess who is a patron supporter and key ally of the Tonga Leitis Association!”

    Condemned by swathes of religious locals, it is also something of a contradiction that the Leitis remain loyal to Tonga and reject ‘mainstream’ or ‘Western’ approaches to LGBT rights.

    …“In Tonga, most people seem to understand that some people are just naturally Leitis –   but there’s still the feeling that they don’t deserve to be seen or accepted as a full part of society.”[46]

    [46] ‘Meet the transgender community resisting anti-trans Colonial-era laws on the remote Tongan islands’, Bloodworth, A, Pink News, 6 July 2018, 20210303132015

    A May 2018 Radio New Zealand report also provided information about the situation for leitis in Tonga which described forms of societal mistreatment which members of this group had received. The report read:

    The struggle for more acceptance and tolerance of transgender and LGBT communities within largely religious and conservative Pacific communities has been highlighted in a new film winning the hearts of global audiences.

    Leiti is short for the term fakaleiti, a term that describes a person who is born as a male, but who acts in a feminine way, just like a lady. Debate still flourishes over whether leitis are born female, or are nurtured to be that way.

    But despite their integral part in Tongan culture leitis face innumerable struggles, particularly against discrimination which, they say, has been brought upon by the rise of outside influences.

    This uniquely Pacific concept of gender, and the leiti experience, is documented in Joey Mataele's film, "Leitis in Waiting," which has been winning awards at film festivals around the world, but to little fanfare back in Tonga.

    It follows a year in Mataele's life, documenting her glamour and personality, but also her battles and struggles.

    "This has been a long time dream of ours to have our stories recorded and used as an advocacy tool. There are so many untold stories. If we had to actually record on audio the untold story of everything leitis have been going through we would have a library like the room of George Washington," she laughed.

    For centuries, leitis have been involved in Tongan life to the highest level, often called upon to serve the royal family and churches. In this film, viewers are taken to celebrations for the 90th birthday of the Queen Mother, Halaevalu Mata'aho, in Nuku'alofa, where they feature prominently, as well as the Miss Galaxy pageant.

    But beneath the glamour, life for leitis is often a struggle, which Matele said could be seen in the muted reaction to the film at home, despite its success abroad. While leitis are an ancient part of Tongan culture, who have been around longer than the church, they often come under fire and face regular discrimination.

    "It is like locals here don't recognise it. The culture and taboo often just puts this big wall up and we can't move beyond that wall to tell our stories," she said. "We are often more worried about our extended families and background, rather than thinking about yourself spiritually, physically and mentally."

    Matele also made the distinction when being asked if fakaletis were more accepted or tolerated in Tonga compared to a lesbian or gay couple. He said they were both the same and accepted when it comes to things like domestic chores, or decorating the church but talking about the bedroom and same sex relationships, is still very much taboo.

    "But it is actually ruining your life, when you don't get to talk about these things."

    Around the Pacific, transgender people face difficult lives. Bullied, discriminated against, persecuted and, sometimes, murdered, the stories of leitis, fa'afine and transgender people across the region is one of struggle and strength.

    That is true for Mataele and the members of the Tonga Leiti Association, for whom the film is dedicated.

    "Everybody thinks I come from a good family, like money and all that, but people don't know what I really went through in life. There are some parts that did not make the movie that... well, put it this way. There are scars there," said Mataele.

    "Some people just say we are nothing and throw them into the dogs or the pit. It is really disheartening to take those awful comments."

    Mataele, and many others, have faced cyber abuse and other harassment from their own people, including stars. When the rugby player Israel Folau recently made comments on social media that gay people would "go to hell," that, again, tore open the wounds.

    "I don't hate Israel Folau. I just wish that instead of hating gay or LGBT, pray for them. The world is too small for hate. I only wish there will be a day where I can sit down with him and share our stories."

    For many leitis, including Mataele, watching the film dredged up some of those difficulties and picked at those scars. But at the same time, she said, it was liberating to tell a story that needed to be told, to shine light on the struggles they face.

    "It does bring back a lot of hardship that we went through but at the same time it feels great to be able to open up about the life we go through."[47]

    [47] ‘A time to shine for Tonga's silenced leitis’, Vui-Talitu, S, 19 May 2018, 20210205145104

    An April 2018 report from the Australian Broadcasting Corporation (ABC) program Pacific Beat also provided information about the situation for leitis in Tonga:

    Transgender women and gender-diverse 'leitis' in the conservative Pacific Island Kingdom of Tonga say, "they cannot be silent anymore" about their fight for visibility.

    Joey Joleen Mataele is one of many in Tonga's island chain who identifies as a 'fakaleiti' or simply 'leiti', which translates roughly from Tongan as "like a lady".

    "The role of leitis in our society is more of a housewives role, a domestic worker, we're known in the public eye in our churches and for helping the youth programs, but when it comes to our personal choices, that's when the barriers start," she told the ABC's Pacific Beat program.

    Leitis often identify as women or men who dress and behave in a feminine way, but mainly don't identify as either men or women.

    …While in some cases leitis are accepted as caretakers and workers, they are also outlawed, shunned and even face jail time.

    Tonga's Civil Offences Act criminalises cross dressing and sodomy, with both carrying jail terms of up to 10 years.

    …The push for decriminalisation and the rising public presence of the leitis comes at a time of heightened religious tension in the country, with American-funded televangelists fuelling a new campaign against the LGBT community in Tonga.

    "It's creating an ugly division that I don't think had really existed in Tonga prior to the emergence of this kind of approach," Mr Wilson said.[48]

    It should be noted, however, that a March 2019 Amnesty International report referred to leitis having made recent progress in gaining increased acceptance from the community, including among church leaders, although it was acknowledged that some still preached against them:

    ​​​Invisibility seems like an unlikely problem for Joey Joleen Mataele. Radiating both strength and warmth in equal measure, she was one of the most striking figures at the second Asia-Pacific Rainbow Families Forum, a meeting of delegates from 27 countries hosted once again last year in Hong Kong.

    Three decades ago she founded the Tonga Leitis Association, an advocacy and support group for leitis—an appropriation of the local word “fakaleiti” literally meaning “like a lady.” Leitis most closely correlate to transgender women as they are understood throughout much of the world, but with an important but subtle difference - leitis are part of an old local cultural tradition encompassing men whose gender expression do not conform to stereotypes and take up roles usually reserved for women in Tongan society. Leitis are, and have always been, at the core of the island community.​

    Joey says her priority is changing people’s attitudes before changing the country’s laws. “If you don’t think positively about the future,” says Joey, “then nothing will work.” And by the looks of things, the situation for Tongan leitis is improving. “When I was 14 and went to church in my blue dress it was the talk of the town,” she says, recalling the stir she made and how much things have changed. When AIDS hit Tonga in the 1980s the first victim was a member of the leiti community, and for years thereafter the group was synonymous with the condition, with people even calling them “AIDS” in the streets. But no more.

    This change, she says, is the result of concrete action by leitis themselves. Every year the group hosts the Miss Galaxy Pageant, a beauty contest and celebration that has become a fixture of Tonga’s annual calendar, and celebrates its 25th anniversary last July.

    Aside from this successful yearly event, leitis regularly make themselves known in the community. Every weekend, leitis can be found in churches up and down the island preparing floral arrangements for Sunday’s religious services. Other days they handle the cooking and decorating for conferences and offer classes on floral arrangement and food preparation for underprivileged villagers. Community-based organizing, according to Joey, is the key to building trust and changing attitudes. “People know about the work we’ve done,” she says. “We’ve earned their respect.”. Through these acts of visibility and resilience, Tonga’s leitis have worked their way into people’s hearts.

    Even among Tonga’s church leaders the leitis have made inroads. Although some still preach against them – largely parachute evangelists aloof to the larger community – Joey is welcome at the Catholic church where she worships. The priests, she says, are “more concerned with my contribution to the church community than my fashion sense.”

    Joey admits that much remains to be done when it comes to safety and acceptance within societal institutions. Many leitis continue to be thrown out of their homes due to homophobia and transphobia and end up at a safehouse set up by the Tonga Leitis Association. And although more leitis feel empowered to come out to their families, Tongan law, influenced by that of Great Britain in the previous century, still officially regards same-sex relationships as a crime.

    Recently, Pacific Island countries such as Fiji, Vanuatu, Nauru and Palau have repealed such outdated colonial-era provisions. The Cook Islands are also in the process of doing the same. These changes are part of a welcome trend towards greater equality and legal protection for LGBTI people in the Pacific Islands. With the determined efforts of the Tonga Leitis Association and others, Tonga may well be the next to repeal legal provisions that violate the human rights of LGBTI people.[49]

    [48] ‘Leitis: Tonga’s transgender community fights for visibility from the conservative Pacific Kingdom’, Murray-Atfield, Y, Australian Broadcasting Corporation (ABC): Pacific Beat, 16 April 2018, CIS7B83941789

    [49] ‘Tonga activist proud to be “like a lady”’, Amnesty International, 5 March 2019, 20210226160950

    Hearing, credibility, findings and assessment

1. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is “well-founded” or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision making (Yao-Jing Li v MIMA (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant’s case for him or her: Prasad v MIEA (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MILGEA (1994) 52 FCR 437.

2. In considering overall the credibility of the applicant the Tribunal is cognisant of the words of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437 at 451 in which he stated that ‘in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for… [but this should not lead to]… an uncritical acceptance of any and all allegations made by supplicants’. The Tribunal notes also the remarks of Gummow and Hayne JJ in Abebe v Commonwealth of Australia (1999) 197 CLR 510 at 191 where it was said that ‘the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising’. The Tribunal has sought to adopt the liberal approach outlined in these cases.

3. The Tribunal is satisfied that the applicant is a citizen of Tonga and accordingly his claims will be assessed against Tonga.

4. In the hearing the applicant confirmed that he does not identify as fakaleiti.  However, he confirmed that because of his effeminate mannerisms that could be perceived as such in Tonga.

5. The applicant in the history of his claims has not been entirely consistent as to whether his family in Tonga or in Australia have been aware of his sexuality. The applicant’s current evidence as confirmed in the hearing is that he told his sister specifically about his sexuality in 2017. In the hearing, the applicant indicated that this was a product of him lodging his protection visa application. The applicant indicated that his sister was not happy about this revelation but continued to allow the applicant to live with her. The applicant indicated that they have not had subsequent discussions on the issue.

6. The applicant indicated that there was when he was in Tonga at the very least a wide assumption that the applicant was gay because of his mannerisms. The applicant’s evidence is effectively that there was at least knowledge or assumption by family members, work colleagues and church colleagues. The Tribunal considers that the various inconsistencies in evidence over time as to whether family members or others have specifically known that the applicant is gay is a product of confusion in the applicant’s mind as between knowledge and suspicion.

7. The Tribunal is satisfied from all the evidence, including in the hearing that the applicant is homosexual and has had at least two same-sex relationships whilst in Tonga and engaged in discreet sexual activity in Australia at least up until 2017, however without entering into any substantial sexual relationships in Australia.

8. In the hearing, the applicant indicated that he is limited in his current sexual activity because of his health issues.

9. The Tribunal is satisfied that family members, work and church colleagues in Tonga knew or suspected that he was gay when he lived there.

10. In the hearing the applicant indicated that he was abused and dissuaded in terms of his mannerisms by family members. The applicant indicated that on one occasion when he was [age] he was beaten by his nephew with a stick as a result of his mannerisms. The Tribunal accepts this. The applicant also indicated that at work he would be abused and pushed and treated more harshly when he made mistakes which he says is a product of his sexuality. The Tribunal accepts this.

11. The applicant indicated that if he were to return to Tonga there would be memories by individuals who previously interacted with him in relation to their assumptions in terms of his sexuality and this would create ongoing problems.  It was submitted by the applicant’s representative that if his health issues improve he would wish to seek out a same-sex relationship and that this would create problems on return to Tonga.

12. The Tribunal also considers based on the applicant’s demeanour and mannerisms that he would be perceived to be effeminate and likely gay on return to Tonga.

13. The issue therefore is whether the applicant faces requisite harm as a result of individuals with whom he interacts in Tonga having this assumption.

14. Homosexual acts are criminalised in Tonga and the Tribunal agrees that this reinforces discriminatory attitudes and treatment even if the law is rarely enforced. There is an LGBT community in Tonga. Nevertheless, the Tribunal accepts the conservative nature of Tonga in society reinforced by a strong Christian ethos.

15. The Tribunal considers from the weight of independent evidence that homosexuals in Tonga face discrimination, harassment and mistreatment, and potentially violence. The Tribunal acknowledges a likely underreporting of violence and significant discrimination based on homosexual acts being illegal.

16. As indicated, the Tribunal has accepted at least one act of physical harm suffered by the applicant as a youth as a result of his effeminate nature and the perception that he was gay. The Tribunal also accepts derogatory comments by relatives and in the workplace as a result of a perception of his sexuality.

17. Albeit that the applicant would not be overly sexually active as a result of his health issues, the Tribunal accepts that nevertheless he would likely be perceived as gay, as a result of both past memory of the applicant and as a result of his mannerisms.

18. In considering mistreatment, the Tribunal does accept that there could be conflation of views in the Tongan community in terms of being gay and fakaleiti. Albeit that the applicant is not fakaleiti the Tribunal does take into account the independent information extracted in this decision as to harassment, difficulties and harassment for fakaleitis in considering the risk to the applicant given his effeminate characteristics.

19. Whilst it is a finely balanced decision, the Tribunal does accept that as a result of this perception, and as a result of the weight of country information as to the treatment of homosexuals in Tonga, the applicant would face a real chance of serious harm based on his sexuality.

20. The Tribunal considers that the serious harm would be significant discrimination and harassment with a smaller risk of physical violence, albeit with a chance that is less than remote.

21. The Tribunal has taken into account the very significant delay in the applicant applying for the protection visa in determining whether the applicant held a genuine fear based on his sexuality. Broadly, the Tribunal agrees with various arguments put by the applicant’s representative as explaining the delay. The Tribunal also takes into account what is clear from the hearing is the applicant’s relative naïveté and simplicity. This, together with the relatively marginal balancing as to whether gay individuals in Tonga face requisite harm, results in the Tribunal understanding why there was a significant delay in claiming protection.

22. The Tribunal has also considered previous unsuccessful protection determinations finding that the applicant is inherently discreet in his sexual activity not as a product of his fear of harm as a result in Tonga. It is reasoned that this would mean that the applicant would be discreet in Tonga not as a product of a fear of mistreatment but for inherent reasons and therefore would not meet protection criteria.

23. This is said to be demonstrated by his reasonably limited and discreet sexual activity in Australia, where he would have the motivation to be more open in relation to his sexuality. It is submitted that this needs to be considered in the context of the applicant having to live with his sister due to economic circumstances and the need for discretion in terms of this relationship.

24. Considering these issues, the Tribunal determines that whilst there is an inherent discretion on the part of the applicant, there is nevertheless a substantial residual fear in terms of expressing his sexuality as a result of the reaction in Tonga society.

25. The Tribunal is persuaded that while the applicant would be relatively discreet in terms of his sexuality on return to Tonga that this would be in significant respect, a product of his fear of adverse treatment.

26. The Tribunal is satisfied that the persecution would be for the essential and significant reason of the applicant belonging to the particular social group of homosexuals. The Tribunal is satisfied that the serious harm would be systemic and discriminatory.

27. Because the serious harm would be a product of inherent characteristics of the applicant, the Tribunal does not consider that the applicant could relocate within Tonga to avoid the harm.

28. The Tribunal is satisfied that the applicant does not have a right to enter and reside in any third country.

29. Given these findings, the Tribunal is satisfied that the applicant faces a real chance of serious harm for a reason set out in s 5J(1) of the Act.

30. For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).

    decision

31. The Tribunal remits the matter for reconsideration with the direction that the applicant satisfies s 36(2)(a) of the Migration Act.

    David McCulloch
    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.

    …