2206619 (Refugee)

2206619 (Refugee) [2022] AATA 4365 (9 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Hoda Shafizadeh
CASE NUMBER:  2206619
COUNTRY OF REFERENCE:                   Tonga
MEMBER:Luke Hardy
DATE:9 September 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 09 September 2022 at 10:20am
CATCHWORDS
REFUGEE – protection visa – Tonga – political opinion – pro-democracy supporter – harassment and assault by Tongan military – corruption within monarchy – credibility issues previous claims of tsunami and deaths of parents – unlawful status – identity issues – use of aliases – vague, inconsistent and unreliable evidence – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 36, 56, 57, 65, 116(1)(g), 424A, 424AA, 499
Migration Regulations 1994, Schedule 2, r 2.43(1)(p)(ii)
CASES
MIAC v SZQRB [2013] FCAFC 33
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 dependants.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a protection visa (PV) under s 65 of the Migration Act 1958 (Cth) (the Act).
[The applicant] claims to be a citizen of Tonga. Detained by the Department of Home Affairs (the Department) under another identity, which he claims he has never used, he lodged a PV application on 20 January 2022. The delegate refused to grant the visa on 3 May 2022.
[The applicant] appeared before the Tribunal on 5 July 2022 to give evidence and present arguments. He was accompanied by his adviser, a registered migration agent.
The Tribunal hearing was facilitated by an interpreter in the Tongan-English medium.
I am satisfied that [the applicant] was not prevented by factors beyond his control from giving cogent evidence at the hearing.
Criteria for a protection visa
The criteria for a protection visa are set out in s.36 of the Act and Schedule 2 to the Migration Regulations 1994 (the Regulations). An applicant for the visa must meet one of the alternative criteria in s.36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the "refugee" criterion, or on other "complementary protection" grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, he or she 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: s.5H(1)(a). In the case of a person without a nationality, he or she is a refugee if he or she 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 that country: s.5H(1)(b).
Under s.5J(1), a person has a well-founded fear of persecution if he or she fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance he or she would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a 'well-founded fear of persecution' and circumstances in which a person will be taken not to have such a fear are set out in ss.5J(2)-(6) and ss.5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s.36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s.36(2)(aa) ("the complementary protection criterion"). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss.36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No 84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF Claims and evidence
The issues
The key issue in this case is whether, on accepted evidence, the applicant is entitled to Australia’s protection as refugees or, if not, on complementary protection grounds. For the following reasons, I have concluded that the decision under review should be affirmed.
Migration background
[The applicant] first arrived in Australia [in] December 2013 on a three-month visitor visa that expired [in] March 2014. He was granted a bridging visa on 7 May 2014 but this was cancelled under s116(1)(g) of the Act, and regulation 2.43(1)(p)(ii), his having “been charged with an offence against a law of the Commonwealth, a State, a Territory or another country.” He was detained under s189(1) on 23 March 2015. He was interviewed by Immigration Compliance officer. He departed Australia on another bridging visa [in] April 2015.
Notes in [the applicant]’s PV application discuss his past offences as follows:
Pending Charge: Assault Occasioning ABH In Company of Other(s) (DV) - T2 | [date]/01/2022,
NSW, Australia
- AVO Warrant Executed
- Arrested for above Charge
1 Conviction: Drive with Low Range PC A - 1^st Offence | [date]/04/2015, NSW, Australia
1 Overstayed a Visitor Visa granted by the Department of Home Affairs, Australia. Made a Request to go back to Tonga Voluntarily in 2015 which was granted by the Australian Government.
[The applicant] claims he re-entered Australia illegally, as a stowaway jumping ship, in 2016. Specifically, he declared at questions 43 to 49 in his PV application that he left Tonga [in] February 2016 and arrived in Australia [in] February 2016 as an unauthorised maritime arrival at [City 1], NSW. He declared, “I paid a smuggler to have me smuggled into Australia by boat. I did not bring any travel documents with me. My current Tongan passport was sent to Australia after I arrived.”
[The applicant] lodged a Combined Partner (subclasses 309/100) visa application with his Australian citizen partner, [Ms A], on 22 September 2020. He evidently referred to his illegal entry in that application. In a statutory declaration, he declared to the Department as follows:
I arrived in Australia May 2016 via the [named] vessel which arrived in [Port 1]in May 2016. I was able to enter this vessel without notice and held no visa. I hid out on the vessel for 3 weeks whilst out on sea, occasionally doing small and odd jobs that raised no awareness or questions. The vessel anchored in [City 1], NSW late May 2016 where I departed the boat. I held no visa still, but I found strength in reuniting with [Ms A] and expecting our first child in a blessed country that could offer more. I jumped off the boat, and swam to shore. Initially planning on hitchhiking to Sydney, I was fortunate enough to meet a local resident who took me in for the night. Using his phone, I was able to make contact with [Ms A]'s aunty[ who] picked me up from [City 1] the next morning. I awaited to reunite with [Ms A] in Sydney, and I was staying with my uncle [in] [NSW]. We then made plans to marry with our family bearing witness. We did so in July 2016. From then until now, I have been happily married with [Ms A]. We have had much support from our family and friends in building a life in Sydney. We now proudly have [number] children; [details deleted. But with God's grace, we are expecting another child in [date]. My wife has been on and off studying her diploma [and] is looking to return after the birth of our [child]. I have been a stay-at-home dad mostly caring for our child while she studies. Occasionally helping out as much as I can in the Tongan community and with our extended families[or] with duties at [church]. I was able to obtain skills in [certain trades]. Due to recent COVID restrictions, we have been home a lot of the time as to avoid contracting and spreading the disease.
Here, I note, [the applicant] said he had last entered Australia in May 2016, not [February] 2016 as later claimed in his PV application form.
[The applicant] was located and detained again by the Department on 17 January 2022. He lodged his PV application three days later.
Upon [the applicant] being detained, the Department undertook biometric and facial recognition checks to confirm his identity. Biometrics matched the passport details of a [Alias 1] of Tonga who entered Australia [in] June 2016 (and had not evidently left). [The applicant] denied knowing or having used the identity of [Alias 1].
The Department undertook a number of searches to ascertain whether the ship [the applicant] claimed to have stowed away on had entered the port of [City 1] NSW, as claimed, on or around the date claimed. Generally, appropriate state maritime records did not support [the applicant]’s claims to have entered Australia at [City 1] on a ship travelling from Tonga, let alone the ship he named, in the period around the date of arrival he had provided. The delegate raised the issue of [the applicant]’s identity in his decision, but did not rely on it as a factor in that decision, ultimately making findings on other facts.
For the purposes of this review, [the applicant] submitted, on 2 June 2022, a copy of the delegate’s decision, in which questions about an alternate identity were ventilated.
For fairness, and without having formed any conclusions even as to their relevance in this decision, I put to [the applicant], under s.424A for comment and/or response, the particulars of the information ventilated by the delegate, with regard to his claims about how he arrived in Australia. I also put to him, under s.424A for comment and/or response, photographic material used by the Department supposedly linking him to the two separate identities. Again, to be fair to [the applicant], when the Department made the photograph of “[Alias 1]” for the purposes of further biometric analysis, the subject of that photograph was the person in detention who had already declared himself to be [Mr B]. The dates of the two differently-named photographs have not been consistently recorded, and the confusion was not apparent to me at the time I shared them for comments and/or response under s.424A with [the applicant].
[The applicant] claims his own passport was sent to him in Australia after he arrived here. He has been able to show that to Australian authorities in support of his identity claims.
[The applicant] continues to deny having entered Australia [in] June 2016 under the identity of [Alias 1].
Primary application to the Department
In his primary application to the Department, [the applicant] claimed to have lived in [Town 1], Tonga. He claimed that his parents and several siblings reside in [Town 1]. He claimed to be in contact with his parents and family in [Town 1], contacting them twice a year. He claimed to have worked [in a line of] work for a few years from 2010 until his first arrival in Australia. Prior to that, he claimed to have worked as [an occupation].
… I have only been provided with 2 days to submit this application. As such, I am having a difficult time concentrating and giving my proper instructions. I also have a lack of proper education.
3. The dates that I have provided in my Form 866 and this statement are approximate and to the best of my knowledge and I do not believe they are accurate.
Summary of My Claims
4. The following is only a summary of my claims for protection. It is not an exhaustive statement of the reason or reasons why I cannot return to my country of origin. I will provide further information in relation to my protection claims during my interview with the delegate that will be considering my matter.
Personal background
…
5. I was born on [date] in the town of [Town 1]in Tonga.
6. I am a citizen of Tonga by birth. I do not have citizenship of any other country. I do not have
the right to reside in any other country.
7. I am an ethnic Tongan. I am a Christian and a member of [a] Church.
8. In December 2002, I completed my secondary education [in] Tonga. During my studies, I also worked [with a] company [based] in [Port 1] because of the financial situation of my family …
10. I was granted an Australian visitor visa and arrived in Australia in November 2012.
11. I began a relationship with [Ms A] in November 2014. I was friends with her for approximately 2 months before we began the relationship. While we were dating, we lived together for approximately 4-5 months.
12. On about December 2015, I was detained at Villawood Immigration Detention Centre as I
overstayed my visa. The officers gave me the option of applying for a new visa or requesting to be sent back to Tonga. I made a request to return to Tonga and returned to Tonga in December 2015 because I thought that I had no visa options at that time. My relationship with [Ms A] continued despite me having to return to Tonga and us living in two different countries.
13. On February 2016, I decided to return to Australia to escape the corrupt and violent
environment in Tonga and to seek a better and safer life in Australia. I paid a sailor who took me into Australia by boat. I did not bring any travel documents at that time. We arrived in [City 1] and from there I was able to begin my life in Australia again.
14. I reunited with [Ms A] and [in] July 2016 we got married. I have [number] children with her. They are [details deleted].
Why I left TONGA AND why I will be harmed in TONGA
15. I fled Tonga on account of my …Political Opinion: Being in opposition to the Tonga constitutional monarchy that is corrupt and run like a dictatorship. Being a person who is a democrat and holds democratic ideals and beliefs.
16. Tonga is a kingdom and monarchy. It is over a thousand-year-old and has a constitution that is as old as 1875. The head of the state is the King of Tonga, and he is the Commander-in-Chief of the Tonga military.
17. Even though in 2009 the constitution was changed to reduce the King's power the King still has all the power to veto any legislation, and everything goes through him. The King treats us like children and thinks our people don't understand that he is still the corrupt and powerful ruler he has been and feeds the stomach of his friends who he makes "nobles" who are parliamentarians.
18. The monarchy pretends to be democratic, claims to be ruled by law, and holds elections for
government offices. However, we all know that the King is the one with all the influence and power …
19. The king knows that people who are pro-democracy are a threat to his dictatorship. I am someone who holds such an opinion. I believe that the Tongan kingdom right now is corrupt because the king holds too much power, and nothing really changed in 2009. There are many further problems in Tonga. There is currently an illegal drug epidemic which is ruining the lives of many. The Tongan economy relies on foreign assistance from Tongans working overseas and foreign aid because the King is not giving the aid to the people but to his family and friends he puts in power and sometimes, but not enough there is a win for people when government leaders are charged with corruption and taking people’s money but this is only when the King wants this to happen. I am not an educated person but I believe that continued reliance on foreign aid shows that there is failing leadership and corruption because the country cannot survive on its own. These problems are never solved and keeps getting worse.
20. Having lived in Australia, I see that if everyone respects democracy, then there will be less corruption and more stability. Australia is a similar system, however there is far less corruption and I feel secure in this country and people are not given trouble for thinking differently …
21. In Tonga, if a person promotes or holds democratic opinions or ideals, that person will be targeted and told they disrespect the King. These events rarely make it to the news as the King and his followers are smart to ensure that the media does not find out. I know of many stories of people being beaten or killed because they oppose the monarchy.
22. In 2007, I experienced this harm. Members of the Tongan military approached me and started beating me up because they had found out that I am a democrat who holds and expresses democratic political thought. I suffered serious physical injuries because of my beating and became terrified to share my views and be heard and seen. I became terrified and paranoid that I might get beaten up again for holding onto and expressing my democratic beliefs. I fear that it will be even worse if I am returned to
Tonga.
23. With the killings that has happened before, I am truly scared that I will either get seriously injured or die. I have a wife and many children to support. I cannot afford to die or be injured and leave them behind since they will struggle without me. Ever since the day that I was beaten, I now lay low to avoid attracting any attention. I do not spend much time out in public in Tonga and do not speak much, especially about politics, in case the Tongan authorities finds out. My lifestyle in Tonga had changed because of this incident, and in 2015 when I had to go back to Tonga.
24.1 have come to realise that a person like me with democratic opinions living in Tonga is branded an enemy of the state. If the military who is controlled by the King target people like me who are true believers in a real democracy, this shows how corrupt the King is in trying to mute, threaten or kill every person who opposes his rule. For me, this shows that I have no hope of living peacefully in this country without fearing for my life every day.
Do I think the authorities of TONGA can and will protect me if I were to go back?
25. Democrats are a particular social group targeted by the Tongan institutions. If I return to Tonga, I have no doubt that I will be physically harmed for my democratic beliefs. I say that I have no doubt because this has happened to me before as described above.
26. Seeking for help from authorities such as police is of no use. The government and military are the King’s, not the peoples. The people who hurt me were from the government military. Even police are involved in this type of discrimination. If I sought police for help, they would not help me but beat me up even more once they know why I was being beaten. The monarchy supports anti-democratic action because they perceive democracy as being a threat to their rule and the changes in 2009 were for show and made no practical impact to who holds the power in Tonga. Thus, the government endorses actions like what the military did to me and others and in the end, there is really no hope for me in trying to get help from the same authorities who hurt me.
Do I think there is a place in TONGA where I could be safe?
27. Tonga is a small island, and its government is tightly controlled by the Monarchy. There is really no use in moving to another part of the island because everywhere is the same. Authorities all have the same attitude towards people who hold democratic beliefs no matter which part of the island I am in.
Other reasons I cannot return to TONGA - complementary protection
28. For the above the stated reasons, I cannot return to Tonga because I fear I will be arbitrarily deprived of my life, or subjected to cruel, inhumane or degrading treatment just as my people continue to be subjected to in the time that I have been in Australia.
[emphasis in original]
Evidence to the delegate

On 28 February 2022, The delegate sent [the applicant] a letter under s.57 of the Act in which he put certain adverse information to him and invited him to comment on the information. An excerpt from the letter is as follows:
The information, which is outlined below, indicates that your claims for protection are not genuine and also that you are willing to breach Australian immigration requirements and provide false information to the Department in order to manipulate circumstances to your favour.
1. In your statement dated 19 January 2022, you claim that you were beaten up by members of the Tongan military in 2007 because they found out that you were a democrat. However, there is no evidence in Department records that you expressed this matter prior to 2022.
Additionally, I note that you voluntarily returned to Tonga [in] April 2015.
2. I also note that when a Department Officer asked you on 23 March 2015 whether there were any reasons why you could not return to Tonga, you replied only that you could not take your partner to Tonga and that you had lost your parents. You did not mention any problems with the Tongan authorities, including with the military.
3. When a Department officer asked you on 18 January 2022 whether there are any reasons why you cannot return to Tonga, you replied ‘the tsunami and the volcano’. You did not mention any of the issues, such as your claimed political opinion, that were raised in the Protection visa application which was submitted two days later.
4. Information before the Department reflects that you most recently travelled to Australia [in] June 2016 using a false identity: [Alias 1], date of birth [Date 1].
5 You returned to Australia [in] June 2016 however you did not seek protection until 20 January 2022 and only then after you had been placed in immigration detention.
The above issues are relevant because they indicate that you do not genuinely fear the type of harm in Tonga that you are claiming or for the reasons that you are claiming. They also demonstrate that you are willing to provide fraudulent information to the Australian authorities. This could lead to an adverse credibility finding which may result in refusal of the application.
You are invited to comment on the above information.
[Tribunal’s emphasis]
On 17 March 2022, [the applicant] provided a response through his migration agent:
4. The Minister … claims that [the applicant] has previously cited "not being able to take his partner to Tonga and having lost his parents" and "the tsunami and the volcano" as reasons why he couldn't return to Tonga when questioned by Department Officers. As such, the Minister indicates that [the applicant]'s claims for protection are not genuine.
5. We respectfully disagree with the view of the Minister. On each of the occasions where he was interviewed by Department Officers, he did not have knowledge of immigration law, and was not legally represented. It was [the applicant]'s view that the reasons of "not being able to take his partner to Tonga and having lost his parents" and "the tsunami and volcano" are reasons directly relevant to his situation that have the highest probability of successfully convincing the Department of Home Affairs to let him stay in Australia — as he understood it being someone who is not familiar with immigration law and also not being an educated person. His limited education means that unless directly asked about each component and element of what makes a refugee, he is unable to relate the matters. He is unfamiliar with the system, and confronted with confusing and culturally alien bureaucratic procedures their responses may be vague and fragmented not due to any desire to deceive, but because of nervousness and lack of understanding especially amongst uneducated applicants.
This submission treats the claims about the tsunami, volcano and [the applicant]’s parents having been “lost” as truthful facts that [the applicant] thought would be more likely to attract compassion from Australia. I note, meanwhile, that [the applicant] later claimed to me that his partner [Ms A] did in fact join him in Tonga after he for a period after he left Australia for Tonga in 2015, so appears not to be true that his Australian partner could not travel there.
[The applicant] went on to tell the delegate that his fear of bringing his Australia-based family to Tonga was related to his refugee case because they would be affected by the issues he faced there. I note again, nevertheless, that [the applicant] later claimed to me that his partner [Ms A] did in fact join him in Tonga for a period of months after he left Australia for Tonga in 2015.
[The applicant] told the delegate that his 2007 beating had been a sensitive and traumatic matter and that he had never been asked about it. He said he had not known if it would be relevant to a visa application.
Regarding the lack of evidence supporting his PV claims, [the applicant] told the delegate it was normal that he would not have collected documentary evidence because he had not known at the time that he would later be applying for protection.
[The applicant] told the delegate his evidence only appeared inconsistent because he was vague due to his lack of education and familiarity with bureaucracy. I note, meanwhile, that [the applicant] claimed in his original PV application to have been educated for [number] years in Tonga; he has therefore had some secondary education.
[The applicant] told the delegate he had voluntarily returned to Tonga [in] April 2015 because he thought he had no other choice. He said he had been confused at that time, had been unable to communicate well in English and could not afford legal representation. He said that his return to Australia in 2016 was consistent with his claim that he was fearful for his life due to problems with the Tongan authorities and military.
Essentially, whereas [the applicant] claimed to have been a conscious and active opponent of the monarchy in Tonga who had been so harshly beaten by soldiers and police that he did not want ever to return to the country, he told the delegate in his letter that when asked in 2015 if anything made him not want to return to Tonga, he did not have enough sophistication at that time to say what he feared there. Meanwhile, in later evidence before me, [the applicant] said his parents are still alive, as he also indicated in his original PV application, which means he evidently misled the Department Officer on 23 March 2015.
On 31 March 2022, the delegate sent the applicant a letter under s.56 of the Act inviting him to provide further details and evidence to support his application, including information and documentary evidence about what happened to him in Tonga prior to 2013 and also if anything happened to him when he returned in 2015.
[The applicant] responded in the following submission, dated 26 April 2022. I note that it is cognisant of the Department’s concerns regarding [the applicant] having possibly adopted the identity of [Alias 1] in order to enter Australia in 2016, a suggestion [the applicant] assertively rejects:
… [The applicant] was born to a family that is pro-democratic in political belief. From 2004 until 2007, [the applicant]’s family, especially his mother and two uncles, would participate in every peaceful pro-democracy protest that was led by pro-democracy activist and later Prime Minister, Mr Samiuela ‘Akilisi Pohiva. [The applicant] himself identifies as pro-democracy activist and has expressed his political opinion by participating in three peaceful protests led by Mr Pohiva between 2004 and 2007. [The applicant] claims that every protest is supervised by members of the Tongan police and military.
4. In late 2006, and prior to the Nuku’alofa riots, a nationwide ballot was organised by Mr Pohiva
to gauge how much of the Tongan Population supports the transitioning of Tonga to a
democracy from a monarchy. [The applicant] and his family gave their support for Tonga’s transition into a democracy by participating in the ballot and voting for democracy. [The applicant] claims that the Tongan Authorities were later in possession of the documents in the ballots including the names of those who voted in support of democracy.
5. On 16 November 2006, the Nuku’alofa riots broke out. A state of emergency was called by
Tongan authorities and the military and police were deployed to contain and control the
situation. Independent sources reveal that the military would brutally beat hundreds of prodemocracy
people that partook in the riots ... Even though the riots were contained in December
2006, the beatings of people with pro-democracy political beliefs continued.
6. [The applicant] further claims that the Tongan military usually loitered around neighbourhoods in the evening. The nightlife in Tonga is a vibrant time where people would usually gather together and converse with each other. [The applicant] claims that the Tongan military would use this time as an opportunity for targeting and beating many people with pro-democracy
political beliefs.
7. In early 2007, on a Saturday evening, [the applicant] and his cousin [Mr C] gathered together outdoors in the streets of Nuku’alofa. A group of military officers approached [the applicant] and [Mr C], and beat them up. [The applicant] and [Mr C] was taken by the military to the military headquarters at Fua’amotu. They were subject to further beatings in the military headquarters for several hours. Afterwards, they were taken to a police department in Mu’a/ Tatakamotonga, Tongatapu where both [the applicant] and [Mr C] received medical treatment. They were released from the police station on the next day. We attach [Mr C]’s statutory declaration which gives an account of the circumstances surrounding his and [the applicant]’s incident with the Tongan military ...
8. [The applicant] further notes that the incident was reported in [a] newspaper in Tonga. A report of the treatment of [the applicant]’s [injury] as a result of the incident is attached.
9. We note that ever since the incident, [the applicant] has not publicly expressed his political beliefs due to fears that the beatings will recur. [The applicant] lived a low-profile life from 2007 up until his arrival in Australia in 2013, and when he returned to Tonga in 2015.
10. We note that although the Democratic Party of the Friendly Islands won a majority of seats in
the 2014 Tongan general election, and Mr Pohiva eventually became Prime Minister of Tonga
in 2014, the political landscape in Tonga did not considerably change… The Monarch still
retains control of the Tongan military as commander in chief. Mr Pohiva’s tenure as Prime
Minister was faced with strong opposition from the Tongan Monarchy who had and still has
power, under the Tongan constitution, to dismiss the Prime Minister and dissolve parliament.
This occurred in 2017, when the Tongan Minister [sic] dismissed Mr Pohiva with the intention of
having a more tractable Prime Minister replace Mr Pohiva… Although Mr Pohiva returned as
Prime Minister later in 2017 after being re-elected by the Tongan people, he only held this
position until 2019. As of 22 April 2022, the Prime Minister of Tonga is Mr Siaosi Sovaleni
who reportedly supported the monarchy’s decision to dismiss Mr Pohiva… As such we submit
that although the Tongan government claims to be a constitutional monarchy that operates
democratically, it is in fact a country that is non-democratic in its political landscape as we
observe that the Monarch substantially controls Tonga and makes decisions that are at odds
with the will of the people, such as its decision to dismiss a twice elected Mr Pohiva and also
the veto power to dissolve parliamentary legislation. The Prime Minister is therefore only a
feature of the constitutional monarchy which still has effective control of the party.
11. Given the above reasons, [the applicant] still has reservations about whether he can express himself politically in Tonga without fearing harm being inflicted on him by the Monarchy as
the case was in 2007. The United Nations Handbook on Procedures and Criteria for
Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the
Status of Refugees states to the effect that if a person is forced to conceal a characteristic of
theirs that is fundamental to who they are, this is a form of persecution and they are not
required to conceal their characteristic in order to avoid detection… Citizens should have the
right to free speech without being subject to harm. As such, we submit that [the applicant] is a refugee in need of protection because of his political beliefs and his inability and fear to express his beliefs ...
12. As of 21 April 2022, efforts have been made by [the applicant] to obtain evidence to support these submissions. We note that [the applicant] has been successful in his efforts in obtaining a statutory declaration from his cousin [Mr C]. [The applicant] initially thought that [Mr C] resided in [Country 1] and only recently discovered that [Mr C] is residing in Sydney. As such, [the applicant] took several days to organise and provide [Mr C]’s statutory declaration dated 13 April 2022.
13. [The applicant] has made further efforts in contacting his brother [Mr D] on 7 April 2022. [The applicant] has instructed his brother to collect evidence of medical records from Tongan police of [the applicant]’s [injury] because of his incident with the military. Tongan police advised [the applicant]’s brother that they could not disclose any information about the incident to [the applicant]’s brother without a formal court order. Obtaining this court order will require a lengthy period of time, and its success is not guaranteed. We will however, pursue the court order if given more time by the Department of Home Affairs.
14. [The applicant] has further instructed his brother to collect evidence in relation to the [newspaper] report of the military incident. [In] April 2022, [the applicant]’s brother physically attended the offices of [the] newspapers in Tonga and was advised that [it] does not hold archives of newspaper reports that are dated prior to 2012 on their systems.
15. As such, [the applicant] is, as of 21 April 2022 and despite his great efforts, unable to provide any evidence in relation to the newspaper report and his records of his [injury] that was
inflicted by the Tongan military.
16. We attach a signed statutory declaration by [the applicant]’s wife [Ms A] detailing the efforts taken to obtain corroborating evidence in this matter …
17. We note that the Department of Home Affairs have notified us that they are privy to evidence
linking [the applicant] to the name [Alias 1]. We note that we have not had access to this information and are currently in the process of requesting access under the Freedom of
Information Act 1982 (Cth). As such, we are not, at present, in the position to comment on [the applicant]’s identity, and his connection to [Alias 1], until we obtain access to the information that the Department of Home Affairs is privy to in relation to this matter.
[Tribunal’s emphasis in bold]
I take the reference to “Saturday evening,” here, to mean the hours commencing with dusk on a Saturday; not, say, a Saturday afternoon or the early hours of Sunday morning. I take the reference to “the next day” to be a generalisation: hence it does not specifically corroborate the release of [the applicant] having occurred either in the morning of the next day, or in the evening of the next day.
I also note that, in his original statement, [the applicant] appeared to describe himself as a sole figure approached by the soldiers who beat and confined him, whereas, in the later submission, he said he was one of two people, the other person being his cousin [Mr C]. I shall return to this issue below. Meanwhile, the claim at paragraph 8 about the incident having been reported in the Tongan press is unsupported. Also, as to the medical report, said in the same paragraph to be attached to the submission, no such material was evidently attached.
Statutory declarations from witnesses
[Mr C], who is a cousin of [the applicant]’s, made the following solemn declaration:
In January of the year 2007, I was out with my cousins in Nukualofa, Tongatapu for what was supposed to be a good night out. I was held captive by a dozen or so military officers in Nukualofa, Tongatapu and taken back to a military headquarters in in Fua’amotu, Tongatapu and was beaten by many of the military officers for what felt like hours before being released to the police department in Mu’a Tatakamotonga, Tongatapu.
I was held captive with my cousin, [Mr B]and a friend [where] we were threatened by guns [and] being told to stay still or else we would be […] shot and hit with wooden planks. We were released [in the] early hours of the morning to the police station in Mu’a where they held us too before allowing us to leave a few hours later in the evening.
We were all bloodied and bruised after the ordeal and I humbly believe we were only being held to avoid anyone seeing our fresh wounds caused by the military.
Prior to this night of horror, there was an uproar of Tongans fighting for democracy which had lead [sic] to the Nukualofa Riots in 16/11/2006. My family have [sic] always been vocal supporters [of] democracy and because of this, we were held without reason and beaten. The military has always [been] and still continues to be a key player for the monarchs in Tonga. My family [is] still being intimidated [even] after democracy has been introduced.
Relevantly, I note that the witness, in his sworn statement, says he and [the applicant] were finally released from custody in the evening of the day after they were arrested. I shall return to this issue below.
[The applicant]’s partner, [Ms A], made the following statutory declaration to the Department:
I am the wife of [Mr B]. [Mr B] is currently detained at Villawood Immigration Detention Centre. [Mr B] has a brother named [Mr D] who currently resides in Tonga and is aware of [Mr B]'s incident with the Tongan military in 2007.
On 8 April 2022, I participated in a three-way video call over [social media] messenger with [Mr B] and [Mr D]. [Mr B] and I requested [Mr D] to personally attend Mu'a Police Station to enquire about any complaints or documents relating to [Mr B]'s incident with the Tongan military in 2007. We also asked [Mr D] to attend the private media and newspaper company [for] any archives or reports in relation to [Mr B]'s 2007 incident with the Tongan military. [Mr D] attended to our requests on the next day of trading in Tonga.
After his attendance at Mu'a Police Station and [the newspaper], [Mr D] reported on the results of his efforts to me and [Mr B]. [Mr D] told us that Mu'a police station was not prepared to release any information regarding [Mr B]'s 2007 incident without an order from the courts of Tonga or a higher authority. [The newspaper] advised [Mr D] that he has to pay a sum equating to $150AUD for them to search their archives. After [Mr D] paid this sum of money, [the newspaper] advised [Mr D] that they would search for the report that we requested. After sometime, [the newspaper] advised [Mr D] that there were no documents or reports in relation to [Mr B]'s 2007 incident with the military as they do not keep physical records prior to 2012. [Mr D] have also tried looking for an organisation that had taken a statement from [Mr B] regarding his incident but these efforts failed to produce any tangible evidence.
Independent Country Information
The following article in The Guardian[1] outlines the career and political legacy of ’Akilisi Pohiva (1941-2019):
The Pacific is in mourning after ‘Akilisi Pohiva, the prime minister of Tonga, a long-time pro-democracy campaigner and leader in the fight against climate change, died aged 78 ...
Pohiva was a key figure in Tonga’s pro-democracy movement, which saw him regularly clash with Tonga’s monarchy over his more than three decades in politics. In 2014 he became the first commoner in Tonga to be elected to the position of prime minister by Parliament, rather than being appointed to the role by the king.
Over the course of his parliamentary career – which began in 1987 – he was dismissed by the king along with the rest of his party, imprisoned for contempt of parliament, and twice charged with sedition.
Partly because of Pohiva’s push for democratic reforms, Tonga became a constitutional monarchy in 2010 and now has representative elections for parliament, however, reverence for the monarchy remains strong and the country has strict sedition laws.
He was awarded the Defender of Democracy Award in 2013 by the Parliamentarians for Global Action, the first Pacific Islander to receive the prize …
Tributes were paid to the prime minister from across the region. Dame Meg Taylor, the secretary general of the Pacific Islands Forum called him a “fighter until the very end”, a “compelling advocate for democracy and freedom, and a kind man and principled man with great affection for Pacific people”.
“As one of the longest serving parliamentarians in our region, Prime Minister Pōhiva dedicated his life to the service and leadership of his country and people. During his political career we saw him transition from firebrand activist to an elder statesman of the Blue Pacific always staying true to his strong ideals of democracy and human rights,” said Taylor.
Ralph Regenvanu, Vanuatu’s foreign minister, who said: “My condolences for a good friend and principled leader” and Australia’s prime minister called him “a passionate advocate for his people, for his beloved Tonga and our Pacific family.” …
[1] “'From firebrand activist to elder statesman': Pacific mourns Tongan PM 'Akilisi Pohiva,” The Guardian, 12 September 2019,

I note the following introductory summary[2] in the “Tonga” entry for the US State Department’s 2021 Country Reports on Human Rights Practices:
The Kingdom of Tonga is a constitutional monarchy. The Legislative Assembly, a parliamentary body consisting of 17 popularly elected members and nine nobles selected by their peers, elects the prime minister. Following the November election, which international observers characterized as generally free and fair, then prime minister Pohiva Tu’i’onetoa removed himself from consideration for continuing in the position, and Siaosi Sovaleni was selected as new prime minister. While the prime minister and his cabinet are responsible for most government functions, King Tupou VI, the nobility, and their representatives retain significant authority.
The Tonga Police Force maintains internal security and reports to the Ministry of Police and Fire Services. Civilian authorities maintained effective control over the security forces. Members of the security forces committed few abuses.
Significant human rights issues included credible reports of serious government corruption and the existence of law criminalizing consensual same-sex sexual conduct between adults, although it is not enforced.
There were no reports that government officials committed egregious human rights abuses. There were reports of government corruption. Impunity for human rights abuses was not a problem. There was some impunity for corruption. The government took steps to prosecute and punish officials who committed human rights abuses or corruption.
[2]
Observations and findings made by the delegate regarding [the applicant]’s identity
The delegate observed in the primary decision that there was no Departmental record of [the applicant]’s claimed arrival in [City 1] or any other arrival to Australia on or after that date in the identity of “[Mr B], date of birth [date].”
The delegate recorded that there was, however, information before the Department that “[Mr B], date of birth [date]” travelled to Australia from Tonga by air [in] June 2016 in the identity of “[Alias 1], date of birth [Date 1]” as the holder of a subclass 416 visa using “a fraudulently obtained genuine passport [number].”
The delegate noted that [the applicant] continued to deny that he had ever used the identity of “[Alias 1], date of birth [Date 1]” or that he travelled to Australia by air using this identity [in] June 2016.
The delegate made the following summary remarks: “The conclusion made by the multiple Departmental sections which have reviewed the evidence is that the applicant’s true identity is [Mr B], date of birth [date] and that he travelled to Australia [in] June 2016 as [Alias 1], date of birth [Date 1].”
[The applicant] was put on notice of all these observations in the delegate’s decision record of 3 May 2022. The delegate ultimately concluded that [the applicant] had entered Australia by air in June 2016 under the identity of [Alias 1]:
The conclusion made by the multiple Departmental sections which have reviewed the evidence is that the applicant’s true identity is [Mr B], date of birth [date] and that he travelled to Australia [in] June 2016 as [Alias 1], date of birth [Date 1].
The photo on passport [number] [sic] in the name of [Alias 1], which was issued [in] 2015, appears to be of the same person whose photo was taken by the Department:
·on 23 March 2015 on entry to immigration detention as [Mr B]
·on 7 December 2020 during a health test as [Mr B] and
·on 26 January 2022 on entry to immigration detention as [Mr B]
On the basis of all the information before me, I am satisfied that the applicant’s true identity is:
Name:   [Mr B]
Date of birth:                   [date]
Country of birth:               Tonga
Country of citizenship:      Tonga
I am also satisfied that [Mr B], date of birth [date] arrived in Australia by air using fraudulently obtained genuine passport [number] in the identity of [Alias 1], date of birth [Date 1].
Hence, [the applicant] has been on notice about the identity issue at least since the time of the delegate’s decision.
Evidence given at the Tribunal hearing
[The applicant] confirmed his date of birth as [date].
[The applicant] told me that his parents, both alive, have separated. He said his mother lives in Pea, his father in [Town 1]. He said they separated after the last riot in Tonga. On the evidence before me that was the Nuku’alofa riots in 2006; however, [the applicant] claimed in his 20 January 2022 PV application that both of his parents live in [Town 1]. Meanwhile, he had evidently told the Department in 2015 that he believed them both to be dead.
I asked [the applicant] about his siblings and he told me the number and identified how many are still living in Tonga. He appeared to be one of eight siblings, around four of them still in Tonga. I asked him about his parents’ siblings. Of interest, he said that one of his father’s brothers, his own paternal uncle, died when he, [the applicant], was still young.
I asked [the applicant] to explain to me what he meant by his claim to the effect that his family supported democracy. In reply, he said that his mother’s side supports democracy and that this caused friction with his father and his father’s side of the family which supported absolute monarchy. He said that politics caused his parents’ separation. This information is broadly consistent with the claim about [the applicant]’s parents having separated around the time of the Nuku’alofa riots in 2006, and the oral evidence at the Tribunal hearing about their having gone on to live in different towns; however, it is not consistent with specific claims in the 20 January 2022 PV application about them both still residing in the same town.
[The applicant] gave evidence at the hearing about the night he encountered the soldiers on the street. In a number of respects, this evidence was different from information previously provided. [The applicant] said he was with two people when the soldiers approached, his being thus part of a group of three; in evidence hitherto, there had been two at most. (See paragraph 7 of the 26 April 2022 submission; see also [Mr C]’s sworn statement.) Also, [the applicant] said that he left his home at about 11:00pm or midnight on the night concerned and encountered the soldiers at 1:00 or 2:00am. On this evidence, it seemed a great stretch to suggest that the encounter took place on a Saturday evening while everyone was going out. On this evidence, it was very late on a Saturday night or very early, say, on a Saturday or Sunday morning.
I asked [the applicant] why he left home so late on the night in question and he said he had been busy fixing a vehicle. I asked him what he had been intending to do with his time so late at night, and he said he had been intending to go to a pub. I asked [the applicant] to confirm where he encountered the soldiers out on the street that night. In reply, he said the soldiers knew he supported the “democracy Party.” I put to him that my question was about where he met the soldiers and, in reply, he said he encountered them in the middle of the street. I asked [the applicant] how the soldiers knew what his political views were and he said he lived in a “small place” where the army “knows everybody.” I asked him if he could help me understand why the soldiers bailed him up in the middle of the night and the street purely over that issue and, in reply, he said that was what the army did in those days.
I asked [the applicant] for more details about his detention, and here they varied from the sworn testimony of his witness [Mr C]. [The applicant] said the army detained him and his two friends for two to three hours before handing them over to the police who detained them for a further three hours or so, his total time detained after being taken off by the soldiers amounting to about six to eight hours. He told me and then confirmed that he and his friends were released on the very first morning after they were taken away by the soldiers. I put to [the applicant] that his witness [Mr C] had given quite different testimony, declaring that they had been held throughout the next day, not being released until the evening of that next day, the total detention time apparently being twice or three times the six to eight hours he himself was claiming in evidence to me. Hearing this, [the applicant] stressed that they were released in the morning. I put to him that his evidence and the evidence of [Mr C] was inconsistent, and then he changed his own version of events, saying, “I wasn’t sure of the time.”
I asked [the applicant] to explain why he had not told the Department during interviews in 2015 that he could not return for political reasons. I noted his claim about not having been legally represented at the time, but indicated that it nevertheless seemed odd that he did not mention his own life being in danger from corrupt or biased authorities. In response, [the applicant] said that he felt at the time that it was better to forget his problems in Tonga. He said that when asked in 2015 why he did not want to return to Tonga he had a preference to avoid talking about his political problems; then he said that, at the time, he did not think the political issue would be relevant to the questions asked by the Department in 2015. His explanations given directly and orally to me were not consistent with explanations given in writing through his adviser, where it was suggested that he was unrepresented, did not understand English, was not educated and did not have a grasp of the UN Refugee Convention and Protocol. Meanwhile, the answers he did give to the Department were false in every respect: his parents were alive, his partner could travel to Tonga, and in 2015 there had been no recent tsunami or disastrous volcano eruption in Tonga.
I asked [the applicant] to tell me when the ship that carried him to Australia arrived. In reply, he said June 2016. (I note that this is when [Alias 1] arrived in Australia by air.) I asked [the applicant] to confirm that he arrived in Australia in June 2016 and he said he was not sure: “Maybe March.” I asked him why he had just said “June” and he said he was not sure of the date and that it might have been March 2016.
I asked [the applicant] how many of his siblings are involved in the pro-democracy movement in Tonga and he said all of them are. I asked him what activities he and his siblings performed and he said, “Not much.”
I asked [the applicant] if he had joined any political parties. He gave unsupported testimony about having the party led by the late ’Akilisi Pohiva, which, I note, elected, in reportedly free and fair elections, to govern Tonga in December 2014. Pohiva was the first commoner to be elected to that position by Parliament rather than being appointed by the King.[3] [The applicant] was in Australia at this time when his preferred party won government, later to tell the Department in 2015 that he did not want to return to Tonga because he had “lost” his parents and also because of the inability of his partner (who later joined him there) to join him there.
[3] "Tongan democracy activist becomes first commoner elected as PM," ABC News Australia, 29 December 2014
I asked [the applicant] if there was any evidence of family members facing relevant harm in Tonga, and he said they are being persecuted in Tonga. This claim was broadly consistent with claims in the statutory declaration from [the applicant]’s cousin, [Mr C]:
My family have [sic] always been vocal supporters [of] democracy and because of this, we were held without reason and beaten. The military has always [been] and still continues to be a key player for the monarchs in Tonga. My family [is] still being intimidated [even] after democracy has been introduced.
I asked [the applicant] why he felt pressed to leave Tonga for Australia by boat in 2016. In reply he said he wanted to stowaway from persecution and problems he was suffering in Tonga .He said there was no other way to get back into Australia after having been deported in 2015. he said he did it to get away from ill-treatment he was receiving in Tonga. He did not, however, provide any details as to what problems and persecution he had been facing or avoiding in Tonga at that time.
I put to [the applicant] that there must have been thousands of Tongans voting and campaigning on the side he supported; I asked him why he thought he was being singled out. In reply, he said there were other people like him who had been mistreated by the army.
Under the protocols of s.424AA, I put to [the applicant] that I had information before me that subject to comments or responses he gave would be a reason or part of a reason for refusing a protection visa. I put to [the applicant] that the Department had received information to the effect that he had flown into Australia under a false identity in 2016 and that the identity was that of a deceased uncle of his. I put to him that if I relied on that information, it would lead to negative inferences as to his overall reliability in this matter and be a reason or part of a reason for refusing the visa. I asked him if he wished to comment or respond immediately or to ask for more time. In reply, he said he wanted to respond immediately. He said it was untrue that he had entered Australia using the the identity of [Alias 1]. He said he did not know this person [Alias 1]. I put to [The applicant] that the information I had just disclosed to him brought to mind his reference, earlier in the hearing, to having a deceased uncle on his father’s side. He then said he did not know when his uncle had died. He said he did not know of any name like [Alias 1] in his extended family.
We then discussed the passport that [the applicant] claimed to have had sent to him in Australia after he came shore here. I put to him that his previous passport was probably never cancelled or confiscated because he had been able to obtain a new one. In reply, he sad he did not know about passport processing. He said, “I came here. I have freedom here.”
First s.424A letter
Around the time of the hearing, the Tribunal located two photographs in an internal document on the Department’s file. Both photographs appeared to be passport-style photographs of [the applicant], with remarks beside one of the photographs indicating that the photograph was supposedly a photograph of [Alias 1]. It was not clear to me whether these photographs had ever been disclosed to [the applicant] for comment or response.
Bearing in mind that the delegate had referred to the “photo on passport [number] in the name of [Alias 1], which was issued [in] 2015, appearing to be of the same person [[the applicant]] whose photo was taken by the Department,” I noted facial similarities between the two photographs on file and decided that it would be appropriate to invite [the applicant] to comment or respond to them under the protocols of s.424A of the Act, the potential relevance being that they appeared to be photographs of the same person. Due to erroneous, or inadequate, or simply confusing information on file, I thought I was sending [the applicant] a copy of a photograph of him taken by Department in 2015 and a copy of the photograph located in the passport of [Alias 1].
The two photographs I sent to [the applicant] under s.424A were, in fact, both taken by the Department, the first being a “Photo image taken at [the Department’s] biometrics 23 May 2015” and the second being a “Photo image taken at [the Department’s] biometrics 26 January 2022.” The second image was labelled an image of [Alias 1] evidently only because, when run through the Department’s biometrics facility, it reportedly matched the photograph in the [Alias 1] passport borne into Australia on 9 June 2016. Hence this second photograph appears to have been labelled “[Alias 1]” in the Department’s file, even though, in both of the two instances in which these photographs were taken, it was just [the applicant] who was being photographed.
A similar confusion evidently occurred within the Department in relation to fingerprints. The Department recorded that the 2015 finger prints of [the applicant] and the 2022 fingerprints of the man detained and biometrically identified as “[Alias 1]” were identical. The Department went on to conclude from this that [the applicant] and [Alias 1] were, ergo, both [the applicant]. This assumption persisted because the Department had already, in effect, labelled its detainee “[Alias 1],” even though both sets of photographs and both sets of fingerprints were merely photographs and prints of the one person: [the applicant]. Hence it does not go against [the applicant] that he is the same person in “Photo image taken at [the Department’s] biometrics 23 May 2015” and “Photo image taken at [the Department’s] biometrics 26 January 2022.”
The one comparison that seemed to have any potential weight was the biometric comparison between the (2015 and/or 2022) photographs of [the applicant] (the same person) and the image in the “[Alias 1]” passport, which I have only recently seen as it was not included in the files before me until the Tribunal obtained it under summons on 18 August 2022 from the Department. In any event, the delegate’s decision had already put [the applicant] on notice as to these particulars:
The conclusion made by the multiple Departmental sections which have reviewed the evidence is that the applicant’s true identity is [Mr B], date of birth [date] and that he travelled to Australia [in] June 2016 as [Alias 1], date of birth [Date 1].
The photo on passport [number] [sic] in the name of [Alias 1], which was issued [in] 2015, appears to be of the same person whose photo was taken by the Department:
·on 23 March 2015 on entry to immigration detention as [Mr B]
·on 7 December 2020 during a health test as [Mr B] and
·on 26 January 2022 on entry to immigration detention as [Mr B]
Before detailing the process in which I disclosed information to [the applicant] for comment or response under s.424A of the Act, I need to emphasise that I was under the mistaken impression, at the time, that the more recent photograph of [the applicant] had been directly obtained from the passport pertaining to “[Alias 1].” Information in the lengthy filenames of the photographs clarified this but it was not apparent from the face of various internal Department documents on hand. [The applicant]’s adviser, who saw dates and descriptions in the electronically transmitted photographs was in fact helpful in pointing out that the two photographs were on file as photographs of [the applicant], taken
·on 23 March 2015 on entry to immigration detention as [Mr B]
[and]
·on 26 January 2022 on entry to immigration detention as [Mr B]
Still, there was other information that I deemed appropriate to disclose to [the applicant] for comment or response under the protocols of s.424A of the Act. The following is an edited version of the particulars of the information as sent to [the applicant] in the first s.424A letter, which was dated 11 July 2022. Disclosures based on incorrect information have been removed, to avoid further confusion, and no negative inferences have been drawn from comments or responses that were provided in regard to them in the applicant’s letter of 15 August 2022:
The particulars of the information are:
• You claimed to the [D]epartment, in a statutory declaration dated 20 January 2021:
I, [Mr B], do solemnly and sincerely declare that I arrived in Australia May 2016 via the [named] vessel which arrived in [Port 1] Port in May 2016. I was able to enter this vessel without notice and held no visa. I hid out on the vessel for 3 weeks whilst out on sea, occasionally doing small and odd jobs that raised no awareness or questions. The vessel anchored in [City 1], NSW late May 2016 where I departed the boat. I held no visa still, but I found strength in reuniting with [Ms A] and expecting our first child in a blessed country that could offer more. I jumped off the boat, and swam to shore…
• Australian maritime authorities, communicating with the Department, have advised that no vessels matching the name “[name]” were located on their systems; that a similarly named vessel [was] identified and found to be a regular runner in and out of Sydney/[City 1]; and that the vessel [arrived] as an international arrival into Sydney [in] April 2016, then sailed to [another city], then back to Sydney, and then arrived in [City 1] [in] May 2016. However, you could not have boarded this boat three weeks earlier in May 2016 if you arrived in [City 1], as claimed, on [date] May …; also, the [vessel] had not reportedly stopped in Tonga on the way to Australia; and furthermore, this puts you out of Australia before, during and since the time your first child together was conceived, as that child was evidently born on [date].
• In your protection visa application, you claimed you travelled for seven days from Tonga, departing [February] 2016, to [City 1] NSW where you landed [in] February 2016. Australian maritime authorities have informed the Department that, whereas [number] commercial vessel arrivals at the port of [City 1] [in] February 2016, none of these vessels had made a port of call at any port in Tonga before they came to [City 1] port. The same authorities reported that no small craft arrived at [City 1] port [in] February 2016. They reported that only one small craft arrived at [City 1] port in the whole month of February 2016, arriving from [Country 1], not Tonga.
• Your claim about arriving in Australia [in] February 2016 is different from what you said in your 20 January 2021 sworn statement, when you said you hid for three weeks on the boat that eventually carried you to [City 1] in May 2016.
• At one stage of the Tribunal hearing, you said that you arrived in Australia in June 2016, whereas soon afterwards you said you arrived in March 2016.
This information is relevant to the review because it is widely discrepant, and casts doubt on your claim about travelling to Australia illegally by boat in 2016.
…
• In the course of its investigations, the Department located information indicating that a person with the identity “[Alias 1]” made remittances between 2016 to 2019 to persons who you identify in your current PV application as your own family members.
This information is relevant to the review because it has the potential to undermine your claim about never having adopted or appropriated the identity of “[Alias 1].”
…
• You previously claimed to the Department in 2015 that both your parents were deceased. You said at the time you were reluctant to return to Tonga due to having lost your parents and because of the damaging effects of a tsunami.
• At the Tribunal hearing on 6 July 2022, you said that both of your parents are still alive.
• Later in the hearing you said that, back in 2015 when you told the Department your parents were deceased, you had only been “guessing” because you had lost contact with them as a result of a tsunami.
• The Tribunal has not been able to find any evidence of any tsunami impacting Tonga between 2009 and 2022, making it hard to conceive that you had no knowledge of whether your parents were alive in 2015, or at any time during your first stay in Australia.
This information is relevant to the review because it has the potential to demonstrate that you are an unreliable witness.
If the Tribunal relied on this information in making its decision, it would lead the Tribunal to find that you appropriated or misappropriated the identity of [Alias 1] to enter Australia by deception in pursuit of a migration objective that was closed to you under your own identity at the time. This would contribute to a conclusion that you are not a reliable witness in this matter and that your substantive claims are false. This would be the reason, or a part of the reason, for affirming the decision under review.
You are invited to give comments on or respond to the above information in writing.
Your comments or response should be received by 26 July 2022. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.
If you cannot provide your written comments or response by 26 July 2022, you may ask us for an extension of time in which to provide the comments or response. If you make such a request, it must be received by us by 26 July 2022 and you must state the reason why the extension of time is required.
The Tribunal will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.
If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments …
[emphasis in the original]

[The applicant]’s adviser asked, on 20 July 2022 for a three-month extension on the deadline for comment or response. She indicated that she planned to engage a facial recognition expert to give expert evidence regarding the two photographs sent. She also indicated that she wished “to engage counsel in Tonga to navigate this issue.” I considered the request but declined to grant the extension sought. Particulars regarding [the applicant]’s identity had already been disclosed by the Department in the delegate’s decision which [the applicant] had submitted to the Tribunal for the purposes of this review. In any event, as noted, the second photograph of [the applicant] was incorrectly identified as a passport photograph of “[Alias 1]” in the s.424A letter and in a scan of that photograph. On a second request, I took into account time lost in the making of the requests and agreed to extend the deadline for comment or response to the s.424A letter to 29 July 2022.
[The applicant]’s adviser contact the Tribunal again on Thursday, 21 July saying that the issue of [the applicant]’s identity had not been raised at the Departmental level, which I take to mean the process leading to the delegate’s decision. The adviser asked, on this basis, that the refusal of her request for the long extension she had requested to be reconsidered. I therefore gave this new request some consideration. The identity issue, however, was evidently raised by the Department in the process leading to its decision. The s 57 invitation by the Department to [the applicant], dated 28 February 2022, and extracted at paragraph 26 of this decision, raises the identity issue (in its own paragraph 4) and mentions “[Alias 1].” The issue of [the applicant]’s identity had thus indeed been raised “at the Departmental level” as plainly evidenced in the delegate’s decision of 3 May 2022, which was submitted to the Tribunal for the purposes of this review. I agreed nevertheless to an extension to 1 August 2022, in consideration of the time expended in the course of requesting the extensions.
On 1 August 2022, the Tribunal received the following request from the adviser:
We are seeking a further extension to finalise the submissions for the Tribunal. We are meeting in person with the client no later than this coming Wednesday, based on the response we received from the detention centre, to finalise the submissions. It has been our only available opportunity to meet with the client and we have found it increasingly difficult to seek detailed or complex instructions via telephone. We are also still waiting for our client’s uncle’s death certificate from Tonga, as it was claimed in the interview that he adopted his deceased’s uncle’s identity.
Furthermore, we request access to the documents the AAT has relied on, namely:
1.Shipping records and enquiries made with maritime services;
2.AUSTRAC records re [Mr B] and [Alias 1]
We request that these documents be provided to us so that we can comment on the Tribunal’s findings, as we are unclear who these apparent family members are or the scope of the request made with maritime services about boat arrivals to [City 1] generally.
We note that our client has identified that the photos provided are undoubtedly him but that he is not [Alias 1]. His wife has also stated that the [Mr B] is not the person pictured in the passport of [Alias 1] but we plan to confirm this in our upcoming visit.
We have also made a request with Police NSW through GIPA as we are unsure as to why, when our client was arrested by Police, he was identified as [Mr B] but when he was subsequently detained at Villawood, he was registered as [Alias 1]. This was also the case when he was last detained at Villawood. We are therefore seeking more information from the Police about what happened at the time of handover from the Police to the Department. We will also be making a further request to the Department or logistics company that manages Villawood for further information about why [Mr B] was registered as [Alias 1] if his documents identify him as [Mr B].
Moreover, our claim through the Information Commissioner regarding undisclosed information in the FOI documents is still being reviewed, and we require this access to documents to properly respond to the Department. For instance, we do not have the documents that detail our client’s claim in 2015 that his parents were dead but this may be in undisclosed information which is the subject of the ongoing IC review.
Here the adviser appeared mistakenly to have inferred that the Tribunal had seen shipping records and AUSTRAC records, whereas in fact the Tribunal had extracted particulars of information from email responses from various agencies to enquiries made apparently on behalf of the delegate. The Tribunal had duly disclosed these particulars to [the applicant] in the s.424A letter of 11 July 2022. Meanwhile, I was not confident that a request to NSW Police, or an NSW Police response to such a request, would help explain to the adviser why the Department had initially identified its detainee [the applicant] as “[Alias 1].” According to the delegate’s decision, submitted by [the applicant] for the purposes of review by the Tribunal, the detainee’s biometric data matched that of the passport pertaining to “[Alias 1],” a fact that might not even have been known to NSW Police at the time he was transferred into Immigration custody. The Tribunal agreed, however, to extend the deadline to 8 August 2022, advising that it would not grant an extension of time for [the applicant] to access AUSTRAC and GIPA records. The Tribunal’s reply to the request also advised [the applicant] that the particulars of the information disclosed to him in the s.424A letter of 11 July 2022 raised the issue of discrepant dates provided by him as to when he came ashore at [City 1] in 2016.
On 2 August 2022, the adviser asked specifically if the Tribunal would provide her with copies of AUSTRAC documents. Having seen no AUSTRAC documents in any of the files before it, the Tribunal had none to provide. On the same day, the adviser thanked the Tribunal for the extension to 8 August 2022 and, with regard to the “discrepant dates” of arrival ashore at [City 1], said:
Thank you for the extension.
However, as the Member is aware, it is not uncommon when applicants recall dates differently when they are unsure, particularly people who are from villages with access to poor education. That is not simply the issue at hand and it runs back to a 416 application with various parties involved which we have approached and our client being registered in detention as someone who he maintains he does not identify with.
Regardless, we appreciate the extension but for the purposes of the Circuit Court review, we maintain that it is not sufficient time for us to obtain responses as the Member may also be aware that we are not managing one case for the past few weeks.
On Wednesday, 3 August 2022, the Tribunal emailed the adviser as follows:
The Tribunal has given the Applicant the particulars of the information under s.424A three weeks ago, on 11 July 2022. That includes the particulars of the potentially relevant information and the 416 application. The particulars of the information have been duly communicated and their potential significance has already been explained.
Also on Wednesday, 3 August 2022, the adviser contacted the Tribunal to say that she had been unexpectedly thwarted in her attempt to meet her client face-to-face in the Villawood Immigration Detention Centre:
I am at the detention centre and have been denied entry. They did not specify that I needed a [Covid-19 virus] booster shot within 6 months and I am standing here pleading then entry but they will not allow it. I have to get a booster and then return. This information was not clear when we made the request as I have all my vaccines except the booster.
Furthermore, the extensions have been at the end of deadlines and because we were not provided with a clear 1 month, we didn't make certain requests as we knew the documents we needed will not be provided within the timeframe. We needed 3 months to go to the expense of securing some information as we knew it will take time for responses.
Furthermore, some documents we have requested from AAT as we cannot access it as it is under [Alias 1]'s name. We request these documents again.
I do not understand whence the adviser drew the apparent presumption that invitations under s.424A must allow a minimum of one month for comment or response. However, the Tribunal was swayed by the aborting of the adviser’s face-to-face meeting with [the applicant] and granted an extension to 15 August 2022.
On 15 August 2022, [the applicant] responded and commented through his adviser on the particulars of the information in the 11 July s.424A letter, of which the following is an extract:
It is only natural that our client, [Mr B] (“[Mr B]” or “our client”), has had difficulty recalling the exact date of his arrival in Australia. We put to the Tribunal that [Mr B] has not provided multiple dates to mislead the authorities, rather his background, limited understanding of English, unfamiliarity of Department processes, and limited education has attributed to his inability to provide a consistent date.
Having made an unauthorised entry into Australia by boat is in and of itself a reasonable explanation as to why there is not an exact record of his arrival held by either [Mr B] or the Department of Home Affairs (“the Department”). We note that our client understands that such an action renders him an illegal maritime arrival and that an admission that reflects negatively on our client, demonstrates that our client does not intend to mislead authorities about his arrival.
Furthermore, [Mr B] has instructed that because he was stowed away in the hull of the ship, he could not determine when each day commenced and ended. Accordingly, it is difficult for [Mr B] to precisely determine how long he was onboard the ship.
[Mr B] reverting to February as the date of his arrival during the Tribunal hearing is not indicative of him lying but rather that he is unclear on the dates due to issues with his recollection which have come about due to the passing of time as well as residual trauma from losing his newborn son in 2020 …
In the evidence provided to the Department in support of his Combined Partner (subclasses 309/100) visa application, [Mr B] informed the Department that [Ms A] had moved to Tonga to be with him for a period of 7 months before returning to Australia after she fell pregnant.1 The Department has [Ms A]’s last arrival in Australia recorded as sometime in June 2016 …
If the Presiding Member was to strictly focus on what [Mr B] wrote in his statutory declaration (dated 20 January 2021), [Mr B] stated that he arrived in Australia when the vessel anchored in [City 1] in late May 2016. It would then follow that the Presiding Member’s observation that [Mr B] “could not have boarded this boat three weeks earlier in May 2016 if you arrived in [City 1], as claimed, on [date] May [2016]” is immaterial.
Without having access to the same records put before the Presiding Member, we put to the Tribunal whether it is possible that the [vessel], after arriving in [City 1] on [date] May 2016, then travelled to Tonga where [Mr B] was able to board, in early May 2016, before returning three weeks later to Australia, where it then anchored in [City 1] in late May 2016.
We sent a request to Port Authorities at [Port 1], Tonga for any information they can provide us for ships which have left their port for Australia between February 2016 and June 2016. Up to now, we have only been provided with ship logs for March 2016, despite our request for logs from January 2016 to June 2016. We are yet to be provided with the scope of documents we have requested and will continue to follow up. [Mr B] has instructed that he boarded directly onto a “big cargo ship” at night-time, and as such we put to the Tribunal that in doing so, [Mr B] may have mistaken the name of the ship. …
[Mr B] boarded the ship based on an opportunity that arose to leave Tonga. Accordingly, his departure was not strategically pre-planned …
We have been instructed that ‘[name]’ is a common surname in Tonga and particularly in the region that our client resided. Although Tonga is a small island, these families with the same surname are not related. Neither our client nor anyone in his family uses the truncated surname ‘[name]’. However, it is common for their relatives to use an alteration of ‘[name]’ …
Both the photos that the Presiding Member has made observations on and returned to us are undisputedly of our client, hence the several facial similarities being identified.
We have been instructed by our client that the photograph taken on 23 March 2015 by Biometrics at Villawood IDC is of [Mr B] after he was detained there following him being located by [Highway] Patrol, charged with driving with a low range prescribed concentration of alcohol, and being found to be an illegal alien on 22 March 2015. At the time, our client was arrested as [Mr B] by NSW Police.
Likewise, we have been instructed by our client that the photograph taken on 22 January 2022 by Biometrics at Villawood IDC is of our client, following his release from criminal custody at Burwood Local Court and transfer to Villawood IDC on 17 January 2022. At the time, our client was arrested and detained as [Mr B] by NSW Police.
We note that [Mr B] was previously detained at Villawood IDC on 26 May 2014, but his biometrics were not taken. When [Mr B] was detained by Immigration at Villawood IDC on 23 March 2015, his biometrics were taken for the first time, and his fingerprints and photo provided no match to any held Department databases. His fingerprints did, however, provide a match in the law enforcement agency database search, due to [Mr B]’s fingerprints being recorded by NSW Police when he was arrested for offences [in] January 2014.
These fingerprints would have then been recorded under [Mr B]’s name in the Department’s database. Furthermore, this person could not be [Alias 1] as based on the Department’s own records, [Alias 1]’s application was not lodged until 20 April 2016, and he did not enter Australia until [June] 2016. Subsequent biometrics taken on 07 December 2020 and 26 January 2022 provided a match in Immigration’s database, that is they would have provided a match to [Mr B]’s fingerprints and photo taken in 2015. The details of the “match” as recorded in the CSP Summary can only be verified as being [Mr B]’s fingerprints by the AAT as the information is not publicly accessible. We request that the AAT makes these enquiries to confirm that the fingerprints match that of our client.
At some point in the process of detaining and collecting biometrics, the Officers at Villawood IDC incorrectly identified [Mr B] as [Alias 1]. We note that biometrics were never taken of [Alias 1] by the Department when granting his Cultural/Social (Temporary) (class TE) Special Program (subclass 416) visa in 2016.
…
The Department assigned [Mr B] with the CID [deleted] when assessing his Combined Partner visa application in 2020. We wish to note that up until his detention on 26 January 2022, all correspondence relating to the Combined Partner visa from the Department was addressed to “[Mr B]” with the CID [deleted]. All correspondence from the Department since [Mr B]’s detention, in relation to the Protection (subclass 866) visa, has been addressed to “[Alias 1]” with the CID [deleted] until our request to update the records.
Moreover, the Minister’s delegate who made the refusal decision, which is the subject of this Tribunal’s review, erred in their assessment of [Mr B]’s identity:
The photo on passport [number] in the name of [Alias 1], which was issued [in] 2015, appears to be of the same person whose photo was taken by the Department:
• on 23 March 2015 on entry to immigration detention as [Mr B]
• on 7 December 2020 during a health test as [Mr B] and
• on 26 January 2022 on entry to immigration detention as [Mr B].
The Kingdom of Tonga passport [number] was in fact issued in the name of [Mr B]; and accordingly, the photo on this passport is of [Mr B] and would match the photos taken by the Department on 23 March 2015, 7 December 2020 and 26 January 2022 because they are all the same person. Moreover, this same passage from the refusal decision confirms that Villawood IDC were taking photos of the man who they identified as [Mr B] on each of these occasions. The Department erred in that they misquoted the passport number ending in [number] as belonging to [Alias 1] when it in fact belongs to our client:
[Here is included a reliable photo-scan of [the applicant]’s [passport] confirming that, in reporting findings to the effect that the passport photograph of [Alias 1] corresponded to the identity in photographs of [the applicant], the delegate erred in citing the number of the passport pertaining to [Alias 1], whose passport number, as discussed below in this review decision, is[deleted].
When we attended the interview with [Mr B] at Villawood IDC on 5 August 2022, we presented a photo line-up consisting of 7 photos we had extracted from the FOI material. Without our interference nor influence, [Mr B] was able to correctly and immediately identify the photos of him and the photos not of him. Ms Hoda Shafizadeh, the legal practitioner in charge of this matter, can provide a statutory declaration that she conducted this identification process, with the photos attached, without her interference or influence …
We have been in discussions with a [Consultant ] in attempt to instruct a facial recognition expert who can analyse and evaluate the same 7 photos from the FOI material which we presented to our client. Their expert evidence, as [an] independent non-stakeholder, will help us to determine whether or not [Alias 1] is a distinctly identifiable person separate from [Mr B] and remove any concerns of bias that the Tribunal may have with the positive outcome of the identification process conducted by our firm with our client …
We attempted to contact the sponsors[for] [Alias 1]’s Cultural/Social (subclass 416) visa to assist with identifying [Alias 1] from the photos provided by the Presiding [Member]… Neither the phone numbers or the email from the application were connected, nor could we find updated contact details in our limited time frame for [the sponsors]. As such, other than Tongan authorities and a facial identification expert, there is no one, who can corroborate what [Alias 1] looks like. If we were provided with further time, we could have made more enquiries to locate the sponsors and write to their address of service as stated on their ASIC search …
We cannot provide a meaningful response to the Tribunal’s assessment that:
“[Alias 1]” made remittances between 2016 to 2019 to persons who you identify in your current PV application as your own family members …
The discrepancy as to the status of [Mr B]’s parents is based on the following statements made to Department Officers at Villawood IDC:
2. I also note that when a Department Officer asked you on 23 March 2015 whether there were any reasons why you could not return to Tonga, you replied only that you could not take your partner to Tonga and that you had lost your parents…
3. When a Department officer asked you on 18 January 2022 whether there are any reasons why you cannot return to Tonga, you replied ‘the tsunami and the volcano’…
[Mr B] does not recall telling a Department Officer that he had lost his parents on 23 March 2015 nor whether a translator was used or not in this interview. As previously put to the Department, [Mr B] was unfamiliar with Department processes, bureaucracy in general and his visa options. [Mr B] would have given the Department Officer what he thought was an appropriate answer to their question due to his circumstances. The FOI documents do not reveal any evidence of this interview, so we are unable to effectively comment other than stating that there is no record of such an interview and therefore we are unaware how the Tribunal came to this conclusion when no material documentary evidence exists that we are aware of that our client made the aforementioned statements.
Later, on 18 January 2022, when posed the same question, [Mr B] gave a contemporary answer as to why he was reluctant to return to Tonga. The Tribunal made the erroneous statement that:
The Tribunal has not been able to find any evidence of any tsunami impacting Tonga between 2009 and 2022.
On 15 January 2022, a tsunami hit Tonga following the eruption of the Hunga Tonga-Hunga Ha’apai underwater volcano. This was heavily reported in the news in Australia, and naturally [Mr B] would have knowledge of this. Having been detained at Villawood IDC only 3 days later on 18 January 2022, [Mr B] would have been concerned about returning to Tonga in the aftermath of this tsunami. Additionally, [Mr B] is unsure whether a translator was used or not in this interview.
During the Tribunal hearing, because of his limited understanding of English and the fitness of the interpreter used, [Mr B] appears to have become confused, or otherwise not been presented the question correctly by the interpreter, when providing the reason why he believed that his parents may have been deceased or otherwise lost in 2015 and in 2022. In the Tribunal hearing, Ms Shafizadeh noted that the interpreter was struggling and [Mr B]’s general confusion in the interview as a result makes it plausible that the Tribunal’s question was not communicated clearly about 2015 and [Mr B] understood it as about more recent events in 2022. When commenting about the tsunami, we are instructed that [Mr B] was recalling what he said to the Department Officer in January 2022. Furthermore, when isolating the 2022 statement, everyone in Tonga, including his parents, were unreachable until the internet and phone lines were later repaired. [Mr B] would have therefore held genuine concerns as to the status of his parents [and] his statements about the status of his parents and the tsunami pertained to the events in 2022 and not 2015 ...
We acknowledge the length of time we have been given to work on these submissions has ended up exceeding one month in its entirety. That being said, we wish to note that the AAT initially refused our request for an extension of time made for after the expiry of the initial two-week deadline provided. Furthermore, had we known that we would have a whole month to work on these submissions from the outset, rather than working to strict weekly deadlines, the scope of work would have been adjusted accordingly. Nonetheless, our client made the decision at the 1 month mark to exp[a]nd on all requests not previously conducted despite understanding that none of these requests, including those made earlier[,] will be responded to prior to a decision being made.
The Tribunal has accessed maritime and money remittance records, which have formed the basis of their adverse decision on our client’s circumstances. On the basis of natural justice, we asked the Tribunal to share these documents with us so that we could provide more complete submissions addressing the issues raised by the Tribunal. The Tribunal has denied to provide them.
As such, the requests for further information from the relevant third parties would have been made earlier as these requests were not originally considered conducive given the initial two-week deadline. However, there is no guarantee that we would have received the information we are requesting from them within the 30-day time frame or at all, particularly without having access to any documents belonging to [Alias 1] which would authorise our access to information relating to him ...
It has been difficult to ascertain instructions over the phone from our client whilst he is in detention at Villawood IDC, particularly without the use of an interpreter. We were scheduled to visit [Mr B] in a professional capacity on 3 August 2022 to seek further and better instructions to the adverse information raised by the Tribunal, however this had to be rescheduled.
Furthermore, we wish to emphasise that an Information Commissioner Review is still in progress, concerning the information withheld by the Department in their FOI release (dated 29 June 2022). We expect the IC Review to result in further information being provided to us, and as such we will be able to provide more definitive submissions as to how [Mr B] and [Alias 1]’s identities became linked once we have received this additional information …
[Tribunal’s emphasis in bold]

[10] “Dissolution of Tonga parliament rouses democracy concerns,” RNZ, 13 September 2017, “Tongan King dissolves parliament, calls fresh elections,” RNZ, 26 August 2017, and “Dissolution of Tonga parliament rouses democracy concerns,” RNZ, 13 September 2017,
… marred by controversy.
Lord Vaea, a noble MP and critic of Mr Pohiva, said the government had made a series of worrying decisions, and frustrations with it had been mounting.
"In many ways, the current Prime Minister and his cabinet has failed to produce the good governance and the fair judgement and honesty of governing Tonga over the last three years," said Lord Vaea.
Among the problems faced by the Pohiva government, said Lord Vaea, included its controversial decision to ratify a United Nations women's treaty, its changes to the education system, and the dismissal of three cabinet ministers, including one who was convicted of bribery.
Mr Pohiva had already faced, and survived, one no confidence motion in 2016, but since then, the controversies had continued.
There has been outrage over the decision to push ahead with a development at Popua, a wetland and heritage area on the Nuku'alofa waterfront, which is being dug up for the creation of a golf course and canals.
Mr Pohiva has also been in a protracted dispute with the national broadcaster, the TBC, after he fired its chair and labelled it an "enemy of the government." Last month, the decision was made to part-privatise the broadcaster.
But according to Lord Vaea, the straw that broke the camel's back was the decision to pull out of hosting the Pacific Games, less than two years before they were to be held.

116. I am not saying that it is misleading to suggest that Pohiva was viewed by some or many at the time to be pursuing controversial policies with some stubbornness, and that a useful word for his approach might be “intractable.” However, on the evidence, that view does not necessarily equate with reducing the power of the parliament to the advantage of an absolute monarch. For a start, there were evidently people in Tonga, such as the parliamentarians who voted no confidence in Pohiva in 2016, who probably just wanted a change of government within the democratic framework.
117. In dissolving the parliament, the king evidently operated totally within the framework of the Constitution; he did not take back any of the monarchy’s former, absolute powers, and there is no evidence that he even intended to do so. In fact, the king appointed Pohiva as caretaker Prime Minister pending the November 2017 general election, which Pohiva and his party won in a landslide and which was allowed to form government without interference. That Pohiva “only held this position until 2019” until he was replaced by another person “who reportedly [had] supported the monarchy’s decision to dismiss Mr Pohiva [in 2017],” either in itself or in combination with other historical facts cited in the 26 April 2022 submission, does not satisfy me that the 2009-10 constitutional reforms were a failure, or superficial, or prey to some kind of monarchist claw-back. All that I can see on the evidence is the cut-and-thrust of parliamentary politics in a constitutional system in which, as is not uncommon in parliamentary democratic processes, one side of politics is more or less conservative than the other. It is understandable that domestic and international observers of the events voiced concerns about possible interference in the democratic political process, especially since the constitutional framework tested by those events was so new and unused to such exercise. However, I do not accept on the evidence before me that there was any attempt to curb democratic processes; they may have been exploited, but that goes with the territory in a vibrant parliamentary democracy. All of this is to say that I am not satisfied that the events of 2017 or since make any kind of case to the effect that a person who vocally supports the stripping of absolute power from the monarchy in Tonga, which one king in his time helped the nation to do and which neither his successor, nor the army, nor any other factor in Tonga appears to have tried to reverse, does not face a real chance of being persecuted.
118. It will be recalled that I do not accept on the evidence before me that [the applicant] was accosted, detained and assaulted by the army or police for reasons of his political opinion on the occasion described as having occurred in early 2007. That does not rule out that he may have encountered some soldiers in an incident that, for irrelevant reasons, became violent and led to his overnight detention. In this scenario, [the applicant] might, as he claimed, have left home for drinks with his friends around 11:30pm and two or three hours later, which would have been late on a Saturday night, and late enough to call the early hours of a Sunday morning, and might have encountered some soldiers on the street. Such an encounter, three hours after [the applicant] first set out to go drinking with his cousin (and, say another friend), could plausibly have led to aggression of some kind and, eventually, to [the applicant] sustaining [an] injury. That would be to find that it is within the realm of plausibility that the encounter, detention and beating occurred but not for the reasons claimed. However, I stress that that in itself does not satisfy me that the encounter occurred and proceeded as claimed due to the soldiers acting on a potentially relevant view about [the applicant]’s political opinion.
119. Alternately, supposing that I put aside the reasons I have given for not accepting [the applicant]’s evidence about his and his family’s experiences with the authorities in Tonga, and accept that [the applicant] was assaulted by soldiers who derogated to him for his political opinion, it is clear from independent country information discussed above, that there has been such a significant socio-political change that there is not a real chance that someone mistreated by Tongan authorities in 2007 for reasons of political activity in the years preceding that time would be of any relevant interest now. As noted, the cause with which people associated in peaceful demonstrations between 2004 and 2007, and even in the less peaceful one that precipitated the 2006 Nuku’alofa riots, was eventually won in the reforms of 2009 and 2010, and with the support and encouragement of the reigning king at the time. To the extent that his successor intervened at one stage in 2017, he evidently did so within the framework of, and in no way contrary to, the newly-drafted constitution. There is no evidence before me to suggest that members of the population who supported ‘Akilisi Pohiva and/or constitutional and political reforms in Tonga have been subjected to potentially relevant harm since the referendum in favour of those reforms or since they took effect. Although [the applicant] has claimed that corruption is still rife in Tonga, he has not provided any detail specifically as to how that might relevantly affect him. He has vaguely indicated that the reforms either did not go far enough or that they were somehow betrayed or fell substantially short in their execution. He is entitled to that view and no evidence before me satisfies me that he would face a real chance of being persecuted for holding, expressing or even publishing that view. [The applicant] has not provided any detailed, plausible evidence as to why he would be persecuted by the army or the police or anyone else, now or in the reasonably foreseeable future, for his past support of what, for more than a decade now, has since become, arguably, the socio-political status quo in Tonga. I am not satisfied on his evidence taken at its best, or on the independent evidence that there is a real chance that he will be persecuted in Tonga in the reasonably foreseeable future.
120. [The applicant]’s adviser has raised concerns about whether I might have denied her client natural justice in this matter, such as by not having provided [the applicant] and his adviser extensions of four to five weeks or more, so that they could undertake searches of maritime and police records and such. This was in the context of the Tribunal disclosing particulars of what, at the time, appeared to be potentially relevant information for comments and/or response under the protocols of s.424A. There are two things to stress here: one, that the particulars of the information were duly provided as required by s.424A; and two, the Tribunal has restricted its findings to facts relating to [the applicant]’s experiences, fears and concerns in Tonga.
121. I am confident that the Tribunal did not deny [the applicant] natural justice by not, say, providing [the applicant] copies of documents such as shipping arrival reports for [City 1] covering January to June 2016, as these were not in any of the files before the Tribunal. Information from maritime authorities was given to the Department and was located by the Tribunal in emails between the Department and other parties and, again, the particulars of that information, reportedly given by third parties to the Department, were duly put to [the applicant] for comments or response. In any event, as I have already clarified, my findings in this matter do not rely, or even need to rely, on information from those parties. I am satisfied that I have not denied [the applicant] natural justice or procedural fairness by not providing documents that the Tribunal did not possess or have regard to in this decision.
122. I have asked myself if extraneous material such as the Department’s concerns over the identity issue, which was raised in the delegate’s decision, and the advice it received from other agencies about ship arrivals, etc., has coloured my thinking as to [the applicant]’s reliability, irrespective of those factors not being integers in the findings I have made. I am satisfied that my assessment of [the applicant]’s PV application is in no way coloured by such factors.
123. In passing, I acknowledge that comments and responses to some of the information put to [the applicant] under s.424A were, in fact, very helpful in highlighting potentially misleading errors in the Department’s documenting of some of its own concerns.
124. My findings as to [the applicant]’s credibility are not coloured by unresolved questions as to precisely how, when, where and by what means [the applicant] re-entered Australia, being questions introduced into this matter by the Department that I considered appropriate to disclose to him. I trust it can clearly be seen that I have relied on factual inconsistencies in and/or with [the applicant]’s own oral evidence about Tonga, as given by him at the Tribunal hearing.
125. On the evidence before me, I am not satisfied that [the applicant] faces a real chance of being persecuted in Tonga for any of the reasons provided in s.5J(1)(a) of the Act. His claimed fear of being persecuted is not well founded. He is not a refugee.
126. For the reasons given above, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Findings in relation to s.36(2)(aa) of the Act
127. Having concluded that [the applicant] does not meet the refugee criterion in s.36(2)(a), I have considered the alternative criterion in s.36(2)(aa), whereby a person who is found not to meet the refugee criterion in s.36(2)(a) may nevertheless meet the criteria for the grant of a protection 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 the applicant being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm.
128. Relevant to this, s.36(2)(aa) refers to a “real risk” of an applicant suffering significant harm. The “real risk” test imposes the same standard as the “real chance” test applicable to the assessment of “well-founded fear” in the Refugee Convention definition (ref. MIAC v SZQRB [2013] FCAFC 33).
129. “Significant harm” for these purposes is exhaustively defined in s.36(2A): s.5(1). A person will suffer significant harm if he or she will be arbitrarily deprived of their life; or the death penalty will be carried out on the person; or the person will be subjected to torture; or to cruel or inhuman treatment or punishment; or to degrading treatment or punishment. “Cruel or inhuman treatment or punishment”, “degrading treatment or punishment, and torture, are further defined in s.5(1) of the Act.
130. Article 7 of the ICCPR prohibits torture and cruel, inhuman or degrading treatment or punishment. Essentially, according to s.5(1) of the Act, all three of these forms of “significant harm” require that there be an intention to inflict harm by some act or omission. Torture 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 ICCPR.
131. “Cruel or inhuman treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the ICCPR. “Degrading treatment or punishment” does not include an act or omission which is not inconsistent with Article 7 of the International Covenant on Civil and Political Rights (the ICCPR), nor one 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 ICCPR.
132. There are certain circumstances in which there is taken not to be a real risk that an applicant will suffer significant harm in a country. These arise where it would be reasonable for the applicant to relocate to an area of the country where there would not be a real risk that the applicant will suffer significant harm; where the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that the applicant will suffer significant harm; or where the real risk is one faced by the population of the country generally and is not faced by the applicant personally: s.36(2B) of the Act.
133. Accepting that [the applicant] is a national of Tonga, I find that Tonga is the receiving country in this matter.
134. [The applicant]’s claims to complementary protection are essentially the same as his refugee claims. Those claims have failed due to a lack of credibility and a failure overall to meet the “real chance” test. In view of the “real risk” test imposing the same standard as the “real chance” test, [the applicant]’s protection claims can no more succeed as complementary protection claims than they have as refugee claims.
135. For clarity, I have considered whether I have substantial grounds for believing that, as a necessary and foreseeable consequence being removed from Australia to Tonga, there is a real risk that [the applicant] will suffer significant harm arising from the January tsunami. This claim was not advanced as a claim for protection under s.36(2) but I have given it some consideration. As noted, [the applicant] evidently made an assertion in January 2022 about the “tsunami and volcano” being a reason for not wanting to return, but he has not provided any details about that claim, except to suggest that he might have thought in January 2022 that his parents, who are still alive, had died in this natural disaster. I am not satisfied that there is a real risk that [the applicant] will suffer significant harm arising from that catastrophe.
136. On consideration of the evidence in its entirety, I am not satisfied that I have substantial grounds for believing that, as a necessary and foreseeable consequence being removed from Australia to Tonga, there is a real risk that [the applicant] will suffer significant harm as exhaustively defined under s.5(1) of the Act.
137. Accordingly, I am not satisfied that [the applicant] is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
Other findings
138. There is no suggestion that [the applicant] satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, he does not satisfy the criterion in s.36(2).
decision
139. The Tribunal affirms the decision not to grant the applicant a protection visa.
Luke Hardy
Member

Attachment - Extract from Migration Act 1958
5 (1) Interpretation
…

cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a) that is not inconsistent with Article 7 of the Covenant; or
(b) that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…

receiving country, in relation to a non-citizen, means:
(a) a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b) if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…

5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.

Note: For the meaning of well-founded fear of persecution, see section 5J.
…

5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.

(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.

5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;

where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note: Section 5G may be relevant for determining family relationships for the purposes of this section.

5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and

(d) the characteristic is not a fear of persecution.

5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a) protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and

(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…

36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or

(c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.

(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2022] AATA 4365

9 September 2022

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