2216456 (Refugee)

The Administrative Appeals Tribunal (the Tribunal) reviewed a decision by a delegate of the Minister for Home Affairs to refuse an applicant a Protection visa. The applicant, born in Tonga, sought protection in Australia, claiming she left Tonga through an employment scheme and subsequently decided to remain in Australia due to experiencing "humiliation [and] abuse" and a belief that Tonga was "ruined" by natural disasters, leaving "nothing for her to go back to." She did not respond to specific questions about whether she had experienced harm or believed she would be harmed if she returned to Tonga.

The central legal issue before the Tribunal was whether the applicant met the criteria for a Protection visa as defined by section 36 of the *Migration Act 1958* (Cth) and Schedule 2 of the *Migration Regulations 1994* (Cth). Specifically, the Tribunal had to determine if the applicant was a refugee, as defined by section 5H(1) of the Act, owing to a well-founded fear of persecution. This required assessing whether she was outside her country of nationality and, due to such a fear, unable or unwilling to avail herself of Tonga's protection.

The Tribunal reasoned that the applicant had not established that she met the criteria for a Protection visa. While the applicant expressed a desire not to return to Tonga due to its devastation by natural disasters and her general claims of humiliation and abuse, she failed to provide specific evidence or respond to questions that would demonstrate a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion, as required by section 5J(1)(a) of the Act. The Tribunal noted there was no suggestion that the applicant qualified as a family member of a person who held a protection visa.

Consequently, the Tribunal affirmed the delegate's decision not to grant the applicant a Protection visa.