2314840 (Refugee)

[2024] AATA 1145

2314840 (Refugee) [2024] AATA 1145 (8 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2314840

COUNTRY OF REFERENCE:                   Tonga

MEMBER:Penelope Hunter

DATE:8 January 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 08 January 2024 at 3:48pm

CATCHWORDS

REFUGEE – protection visa – Tonga – particular social group – people with mobility disability – political opinion – opposition to the Government – lack of job security – employment – periods of unlawful residence – opportunities for studies – delay in applying for protection – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 5(1), 5AAA, 5H, 5J – 5LA, 36, 65, 499
Migration Regulations 1994, Schedule 2

CASES

MIEA v Guo (1997) 191 CLR 559
Prasad v MIEA (1985) 6 FCR 155
SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362

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

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 8 September 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, who claims to be a citizen of Tonga, applied for the visa on 15 August 2023. The delegate refused to grant the visa on the basis that they were not satisfied that the applicant had demonstrated that he met the grounds for a protection visa under the Act.

   CRITERIA FOR A PROTECTION VISA

3. The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b) or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.

4. 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.

5. A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).

6. Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)–(6) and ss 5K–LA, which are extracted in the attachment to this decision.

7. 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

8. 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.

   CLAIMS AND EVIDENCE

9. The applicant is [an age]-year-old male born in [Village 1], Nuku’alofa, Tonga. He speaks, reads and writes Tongan and English. He is separated and identifies as a Christian. He completed high school in Nuku’alofa in [specified year], and in Tonga he was a farmer. From December 2000 to December 2018, he lived in [Village 1], Nuku’alofa, Tonga.

10. Departmental records indicate he first travelled to Australia [in] April 2016 as a holder of a [Visitor] visa. The applicant departed on this visa [in] July 2016. On 30 October 2018 he was granted a further [Visitor] visa that was valid to 24 March 2020 and made one return trip to Australia on this visa in 2018. In 2019 he made a further trip to Australia on this visa, arriving in Australia [in] December 2019, and he has not departed since that time.

11. While onshore on 24 March 2020 the applicant’s [Visitor] visa ceased, and he became an unlawful non-citizen. On 6 April 2020 he was granted a Bridging visa E (BVE) that ceased on 6 October and he again became unlawful. On 15 January 2021 he was granted a further BVE that ceased on 19 October 2021, and he again became unlawful. On 20 October 2021 he was granted a further BVE. This BVE ceased on 12 January 2022 and the applicant again became unlawful. On 28 January 2022 he was granted a further BVE that ceased on 25 April 2022. On 29 April 2022 he was granted a further BVE. On 6 May 2022 he lodged an application for a Protection XA 866 visa, and on 16 June 2022 he was granted an associated BVE. This application was deemed invalid on 6 July 2022, and on 10 August 2022 the applicant’s BVE ceased, and he again became unlawful. On 15 August 2023 the applicant then lodged the Protection visa application under review.

12. In summary, the applicant set out in his visa application the following reasons for seeking protection:

    i.He left Tonga to flee the political opinion of the government, to flee economic hardship and strife, and to flee climate change and no job security.

    ii.He had experienced psychological, mental and economic harm, and strife from the government which did not provide job security.

    iii.He did not seek help within his country as there was nowhere in Tonga to seek help against the government. He also had nowhere to move in the country to seek safety.

    iv.The authorities in his country could not protect him because they do not have the resources to spend on one person and if he returns to Tonga his suffering will be the same as before.

13. On 16 August 2023 the Department sent to the applicant an acknowledgment of a valid application and advised him that he could provide additional information in relation to his application and advised how this could be provided. The applicant did not respond. Other than a copy of his passport, lodged at the time of the visa application, the applicant did not provide any additional documents in support of his claim.

14. In refusing the visa, the delegate of the Minister found that the applicant’s claims in relation to job security, economic hardship and climate change to do not relate to any of the grounds of persecution set out in s 5J(1)(a) of the Act and that there was no real chance that the applicant would suffer serious harm for the reasons that they had claimed.

    Tribunal application

15. On 20 September 2023 the Tribunal received an application for review from the applicant. The applicant provided a copy of the Department’s decision record dated 8 September 2023.

16. On 31 October 2023 the applicant submitted to the Tribunal a further copy of the delegate’s decision record, screenshots of his account [at Bank 1], letter of support of [Cousin A] dated 23 October 2023 and letter of support of [Ms A] dated 20 October 2023.

17. The applicant appeared before the Tribunal on 13 November 2023 to give evidence and present arguments. The Tribunal also received evidence from [Ms A]. The hearing was conducted with the assistance of an interpreter in the Tongan and English languages. At the hearing the applicant discussed the following (in summary):

    i.The applicant said he had resided on the island of [Island A], in Tonga, with his parents. They moved to the island when he was a child, and there he completed high school in [year]. His parents continue to reside in the family home, which they own, with his [sibling]. They are currently retired and aged in their [age range]. The applicant has [specified family members], who reside in Tonga, [and specified countries]. He [has] one brother who resides in Australia. The applicant does not have a partner and has never been married, and he was unsure why he claimed that he was separated in his visa application. This was not correct.

    ii.The applicant told the Tribunal that he did not work in farming as written in his visa application, and he said that he had never worked because of his disability. The applicant claimed that he was born prematurely and his legs were not strong and he had difficulties walking. Under further questioning the applicant said that he did not, and had never, used any aid or other assistance to walk, transfer or mobilise. He further said that he claimed to be independent in all activities of his self-care. The applicant had no difficulties with his upper body, communication, cognition, seeing or hearing, and he did not report that he experienced any pain. He had not sought any medical treatment for his condition in Australia. In Tonga he also did not have any treatment for his condition. He does not know the name or the medical term for his disability.

    iii.The applicant said he was able to access school in Tonga in the past. He used to walk to school and mobilise around the school. He said that he could not continue his study after high school because there was no support and no one to assist. He is interested in music and would like to study music in Australia. He wished to remain in Australia to explore different study opportunities, particularly online study.

    iv.In Tonga he was financially support by his family. His parents provided his home and all his basic needs. He was able to mobilise around his home without any aids. He had learned to play the guitar in Tonga. He would attend church and play music at the church and join in with the church choir. His family had a car and they would be able to drive him most places. He did not report any difficult using private transport. He said that he could go back to Tonga and live with his parents, but they are getting older and he thought in the future he may struggle with his condition.

    v.The applicant travelled to [Country 1] in around 2014 to visit his grandmother, and she is now deceased. When the Tribunal asked the applicant about the purposes of his previous visits to Australia he said that he was a tourist and visited his [siblings]. He said he had no concerns about returning to Tonga after his previous visits. He last came to Australia in December 2019 for his brother’s birthday, and he told the Tribunal that he had intended to return to Tonga but then there was the COVID-19 pandemic.

    vi.The Tribunal asked the applicant if he had ever been harmed in the past in Tonga and he said that he had not. When asked why he could not return to Tonga the applicant said that it was because of his disability; he said that as he got older his disability was getting worse and when his parents pass away he would have no one to look after him. The applicant did not identify any current health concerns for his parents. The applicant was asked whether he had additional treatment or medical needs because of his disability and he said that he was not receiving any treatment. He said that he did not currently have any medical needs. The applicant was asked about his claim his disability was getting worse, and he said that his parents were getting older. The Tribunal also noted that the applicant’s siblings, cousins and extended family were providing him with assistance in Australia, and it was put to the applicant that they could continue to provide funds for his support in the future in Tonga. The applicant agreed that this was the case but suggested it would be easier for them to do this while he was in Australia.

    vii.The applicant was asked about the protection claims in his visa application. He said he had completed the visa application with the assistance of a friend. He was confused by the claims in the visa application when they were put to him at the hearing. He did not know why details of his family had not been included. He said that he had never been involved in politics and he did not think that anyone in the government would wish to hurt him, although he did not think that the government supported him to find employment. This was a reason he wanted to stay in Australia; he thought that he might be able to study music online and maybe get a job in the future to help his family support him living here. He did not have any claims relating to climate change. He again said that he did not know why this was mentioned in his visa application.

    viii.The applicant apologised to the Tribunal for the information in his visa application which he acknowledged was incorrect. He accepted that there had been a delay in lodging the application. He said that he had relied on his friend and he could see from the Tribunal’s questions that a lot of information was missing. He just wanted to keep living in Australia as things with his disability were getting worse. The applicant was asked to explain what was getting worse and he said that it was getting harder putting on shoes. He had not sought any medical treatment for any deterioration in his health in Australia, and he said that he had not had time. He just did not think that things would get easier in the future and did not know how his parents would cope.

    ix.The Tribunal put to the applicant that there were disability services available in Tonga but that it was accepted that they may not be funded as well in Australia, however this did not mean that the government or anyone else was intending to harm the applicant. The applicant agreed but said that there was not much help to assist people like him to find employment or additional learning, and if he remained in Australia he may be able to do that.

    x.The applicant said he was not really sure what reasons for claiming protection the person who had assisted him had put in the application. He was not the victim of any government strife, and although he did not work he had been economically supported by his family in Tonga. He applicant conceded that he was not being harmed in Tonga but he thought that in the future it may be better for him in Australia.

    xi.Mrs [Ms A] was married to the applicant’s cousin. She told the Tribunal that the applicant had lived with her and her husband and other family members since he had been in Australia. She believed that the applicant would be an asset to the country as he was very talented and passionate about his music. He was involved with their church youth group and choir and she claimed he had made a positive impact. She had visited the applicant in Tonga and confirmed that he had lived there with his parents. When asked if there was anyone who would wish to harm the applicant if he returned to Tonga, [Ms A] replied in the negative. When asked if there was any reason that he could not return she said that his parents were becoming old and in Australia he had a better family support system. [Ms A] was asked what support she currently provided to the applicant and she said that they provided him with food and accommodation. When asked if he required any assistance with his daily care she replied in the negative but said that they also provide psychological support for the applicant. The Tribunal asked if there was ever any medical assistance needed to be provided to the applicant and she said that there was none she was aware of but that if there ever was it would be taken care of by his brother.

    COUNTRY INFORMATION

18. Tonga has a population of 100,745 (2016 census preliminary count), with around 74% of the national population residing on the main island of Tongatapu. Tonga has one national referral hospital (Vaiola), four district hospitals (Niu’eiki, Niu’ui, Prince Wellington Ngu, and Likamonu) and 14 community health centres (seven on Tongatapu, seven on other islands). There were 71 doctors and 454 nurses working in Tonga as at the end of 2016. Services are funded through general taxation and are free at a point of delivery. Pharmaceuticals are free if dispensed at health centres.[1]

    [1] The Specialist Health Service, Tonga Health Systems Support Program Phase 2 (THSSP2) Mid‑term evaluation report, 25 April 2019, at page 1

19. According to the report, Disability in Tonga: analysis of the situation of people with disability based on the 2016 population and housing census, November 2019:[2]

    ·Just over 4,000 people aged five years and older in Tonga have some form of disability – a prevalence rate of 4.6%.

    ·Ageing is major characteristic of disability, with most of the disabled population being aged 50 years or older.

    ·The most common form of disability of those measured is mobility, severely impacting the lives of almost 1,900 people.

    ·A smaller proportion of the disabled population are wage employees – 20% compared to 25% overall.

    [2] Disability in Tonga: analysis of the situation of people with disability based on the 2016 population and housing census, November 2019 at page 6

20. According to ‘The Kingdom of Tonga Health System Review’ published in 2015, rehabilitation services are limited in Tonga:

    The health system is also very limited in the scope of available rehabilitation services and lacks adequate human resources, medical equipment and assistive devices to cater to the growing demand related to the rise in NCDs [non-communicable diseases] and an ageing population. The majority of rehabilitation, long-term care, and care for those with disabilities is provided by family members, although a small number of NGOs and faith-based organizations also provide limited services, predominantly on Tongatapu [the main island in Tonga where the capital Nuku’Alofa is located].

    Home and family care remain a strong value in Tonga’s culture, and as such, family members perform the bulk of rehabilitation and intermediate care. There are some community‑based rehabilitation services provided by the churches, other faith-based organizations or local or international NGOs. Formal rehabilitative services provided by the Government are extremely limited, with the allied health workforce in Tonga consisting of only three nutritionists/dietitians and one physiotherapist. This means there is a distinct lack of resources for rehabilitation from conditions such as cerebral palsy, stroke or diabetic amputations, and as a result many Tongans are severely impaired by their disabilities and unable to function optimally.

1. The Government of Australia’s Department of Foreign Affairs and Trade’s current ‘Tonga country brief’ includes an ‘Economic overview’:

   Tonga has a small open economy which is vulnerable to external shocks. Tonga has faced an economic contraction due to COVID-19, but with donor support, has minimised some of the worst impacts on vulnerable communities. The economy is heavily reliant on remittances from Tongans working overseas as well as foreign aid. The US is the main source of remittances, followed by New Zealand and Australia. Foreign development assistance in the form of loans, grants and direct aid is an important component of the Tongan economy.

   Construction and infrastructure projects funded by donor grants and soft loans are sources of growth. Despite its economic difficulties, Tonga remains one of the best performers in the Pacific in terms of progress against the Millennium Development Goals. Agriculture is the leading productive sector. The manufacturing sector is very small. …[3]

   [3] Tonga country brief | Australian Government Department of Foreign Affairs and Trade (dfat.gov.au)

2. A 2017 World Health Organization (WHO) report on Tonga stated in its overview:

   Tonga is classified as a lower-middle-income country. Economic activities include tourism, agricultural products and fisheries. Remittances from Tongans living abroad are a significant source of income.[4]

   [4] WHO Country Cooperation Strategy 2018-2022: Tonga. World Health Organization. Regional Office for the Western Pacific.  at page 2.

3. In the 2016 census the main source of income of 8,312 of Tonga’s 18,005 households was a regular salary, then sale of products (3,683), remittances (3,455), income from own business (1,468), pension or retirement (355), rental income from house rented (82), rental income from Land Lease (42) and other (47); 561 households had none.[5]

   [5] 'Tonga 2016 Census of Population and Housing Volume 1: Basic Tables and Administrative Report', Tonga Statistics Department, 2017, p.204

4. The International Organization for Migration relying on figures provided by the World Bank estimated that personal remittances received in Tonga amounted to USD183.3 million or 40.7% of 2018 Gross Domestic Product (GDP).[6]

   [6] >

   The 2018 Tonga Disability Survey Report collected information about sources of household income. This ranges from regular salaries, business, subsistence, rents, remittances and pensions. According to the information collected of the total households surveyed, 87.8% of case households received remittances from outside the household compared to 84.5% for control households.

5. Within the Ministry of Internal Affairs, the Kingdom of Tonga has established the Social Protection and Disability Division.[7] In its report to the Human Rights Council Working Group in May 2023, the delegation from Tonga reported that Tonga had developed multiple national human rights frameworks to protect the rights of vulnerable groups in society. Tonga had also established welfare programs to empower caregivers to provide proper care for older persons. The national disability policy, developed by the Ministry of Justice, aimed to ensure that all persons with disabilities had access to justice with the necessary support, and the Ministry of Infrastructure had policies in place to ensure that all major projects featured a disability‑friendly component.[8] However, it is also noted that the Working Group documented ongoing work for Tonga in continuing to ratify further international human rights conventions and some relevant national legislation.[9]

   [7] About – MINISTRY OF INTERNAL AFFAIRS (mia.gov.to)

   [8] Human Rights Council, Universal Periodic Review Outcomes of Tonga, accessed at G2311405.pdf (un.org) at page 3

   [9] As above

6. On 18 June 2020 a new Employment Relations Bill[10] was tabled in parliament and passed by Tonga’s Legislative Assembly on 8 September 2020. While the Bill sets out the fundamental rights of an employed person, including freedom from discrimination, and defines the prohibited grounds of discrimination, including discrimination based on a person’s disability and/or ‘actual or perceived personal characteristics or circumstances’, located information indicates that the Bill has not yet received royal assent and has not yet become law. [11]

   [10] Employment Relations Bill 2020 (ago.gov.to)

   [11] Tongan Legislation – Bills by Year (ago.gov.to)

7. Post-secondary online education is available in Tonga. The University of the South Pacific (USP) offers online courses.[12] The USP has a Tonga campus and it also has a TAFE division (Pacific TAFE) which offers online courses.[13] A music production course[14] is also available online from international educational providers, such as the Knowledge Academy, who also have premises in Tongatapu.[15]

   [12] Modes of Learning – Learning and Teaching (usp.ac.fj)

   [13] Online Courses – WDTU – Pacific TAFE (training.ac.fj)

   [14] Mastering Music Production Essentials | Music Production Course – Tonga (theknowledgeacademy.com)

   [15] The Knowledge Academy Tongatapu – Tonga

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue on review for the Tribunal is whether there is a real chance that the applicant will suffer persecution on return to Tonga, or, if not, whether there is a real risk that he will suffer significant harm if removed from Australia to Tonga.

   Nationality and identity

9. On the basis of the identity evidence submitted to the Department, including copies of the passport of the applicant, the Tribunal accepts that he is who he claims to be and that he is a Tongan national. The applicant’s claims will be assessed on this basis. There is no evidence before the Tribunal that the applicant would be excluded from Australia’s protection obligations on the ground set out in s 36(3) of the Act.

10. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is ‘well-founded’ or that it is for the reason claimed. Similarly, that an applicant claims to face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to ‘significant harm’. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out.

11. As decision-maker, the Tribunal is not required to make the applicant’s case for him. It is the responsibility of the applicant to specify all particulars of the claim to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish the claim. The Tribunal does not have any responsibility or obligation to specify or assist in specifying any particulars of the claim, or to establish or assist in establishing the claim: s 5AAA. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo (1997) 191 CLR 559 at 596, Prasad v MIEA (1985) 6 FCR 155 at 169–70.)

12. The Tribunal is satisfied on the basis of the applicant’s evidence at hearing that the claims of the applicant as set out in his visa application do not generally reflect his concerns and that he did not review them before lodging the visa application.

13. The Tribunal accepts the claim of the applicant at hearing that his legs are weak and that he experiences difficulty with prolonged standing, mobilising over distances and walking for an extended period. The applicant was observed to take time mobilising from one seat to another in the hearing room. He was observed to be able to enter and exit the Tribunal hearing room without assistance. His evidence is accepted that he does not utilise any aids to mobilise or rely on any medication to assist with his mobility. It is accepted that he is independent in undertaking his personal care and other activities of daily living. It is accepted that he has difficulty putting on shoes and would not be able to undertake any manual employment that would require him to stand or walk for any considerable period of time. The Tribunal does not dispute that the weaknesses in his legs have as described at hearing, been present since birth and are consistent with his claim that he is disabled. It is accepted that people with limited mobility or people with a mobility disability may be considered a particular social group in Tonga, and that the applicant may be considered a member of this particular group.

14. It is accepted that the applicant has never worked in the past, and that he has been supported financially by his family. The Tribunal does not dispute his evidence that he participated in family, church community and social events, and he was able to access the community and church through private transport. The applicant did not identify to the Tribunal any unmet medical needs in while living in Tonga. It is not accepted that the applicant had to flee economic hardship or strife. The Tribunal considers that the applicant’s evidence regarding the lack of employment opportunities in Tonga for persons with disabilities is consistent with country information. Generally the level of full-time employment in Tonga is low, labour mobility is an important issue for the government, and the country information demonstrates that the Tongan economy and its people are heavily reliant on remittances from international workers. Further, according to a 2020 report by the ANU Development Policy Centre, ‘Tonga is the most remittance‑dependent country in the world.[16] It is not novel that the applicant relied on family , and family remittances for support in the past. It is not accepted that the applicant was harmed in the past due to the lack of any employment opportunities.

    [16] Governance of the Seasonal Worker Programme in Australia and sending countries, Richard Curtain and Stephen Howes, Development Policy Centre, 08 December 2020, p42

15. The Tribunal also finds on the evidence of the applicant and his witness that he was never harmed in the past in Tonga. The applicant conceded, and the Tribunal finds, that he did not have to flee the political opinion of the government. Nor does the evidence demonstrate that the applicant was harmed by climate change or that he was a victim of psychological, mental and economic harm, and strife from the government. His evidence to the Tribunal is that he has no fear of harm directed at him by any person or the Government of Tonga. His witness corroborated that she was not aware of anyone who would seek to harm the applicant in the future should he return to Tonga. He has conceded that he can return to live with his parents and [sibling] in his family home.

16. The Tribunal also relies on the evidence of the applicant that he intended to return to Tonga when he arrived in Australia in late 2019 to visit his brother, were it not for his return being interrupted by the COVID-19 pandemic. It places adverse weight on the ongoing delay of the applicant in lodging a protection application as further corroborating the finding that he has no fears of harm upon return to Tonga.

17. It is acknowledged that the applicant has concerns about his life he ages and as his parents continue to age, and may in the future pass away. However, the Tribunal is not satisfied on the evidence that the applicant would be homeless, deprived of shelter and left to his own devices if returned to Tonga. His family own the home in which he could live, he has another sibling remaining in Tonga and as well as an extended family. He is part of a supportive church community. He also has siblings and extended family in Australia, [and specified countries] that he did not dispute in his evidence to the Tribunal that they would continue contribute financially to his ongoing support. While the applicant may consider it more convenient for this assistance to be provided to him in Australia, the evidence is that he has numerous strong family ties that are devoted to aiding with his care and welfare. In the particular circumstances of the applicant, it is not considered that he would be subjected to harm due to any lack of employment opportunities in the future. The applicant’s concerns do not, in the finding of the Tribunal on the evidence, involve serious harm to him within the meaning of s 5J(4)(b), including threatening his capacity to subsist. Nor is the Tribunal satisfied that any shortage of funding by the Government of Tonga, or other providers, for services and support for persons with mobility disabilities, amounts to systematic or discriminatory conduct as required by s 5J(4)(c) of the Act. There is not the requisite element of deliberation, premeditation or intention to subject the applicant to harm as a consequence of his membership of a particular social group of a person with a mobility disability, nor does the Tribunal accept that it rises to the level of persecution. Consequently it follows that Australia’s protection obligations are not engaged under the Act.

18. The Tribunal accepts that the applicant views Australia as having more opportunities than Tonga for persons with a disability. It accepts that he has become accustomed to living with various family members in Australia, after being unable to return to Tonga due to extensive travel and lockdown restrictions. It is also accepted that Australia has greater opportunities for post-secondary studies and a wider variety of studies accessible to the applicant. It understands that the applicant wishes to prolong his stay in Australia to improve his future. Upon reviewing the country information it is not demonstrated to the Tribunal that the applicant is without study options in his home country in the future. Online vocational study is available, although the applicant may have some limitations in course selection. Furthermore, the Tribunal does not accept that the limitations in secondary study options for the applicant are instances of serious harm within the meaning of s 5J(4)(b) of the Act that threaten his capacity to subsist, such that they would rise to the level of persecution. Furthermore, the Tribunal does not accept that this is systematic conduct for the purposes of s 5J(4)(c) of the Act, in that it is not found to be deliberate, premeditated and intended to cause harm to the applicant but, rather, a consequence of limited financial resources.

19. In light of all the above, considered both individually and cumulatively, the Tribunal is not satisfied that the applicant, by reason of his membership of a particular social group, being a person with a mobility disability in Tonga, or for any other reason, has a well‑founded fear of persecution, now or in the reasonably foreseeable future, if he returns to Tonga.

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

21. Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative complementary protection criterion in s 36(2)(aa).

22. The Tribunal has considered whether, on the evidence before it, there are substantial grounds for believing that there is a real risk that the applicant will suffer significant harm as a necessary and foreseeable consequence of being removed from Australia to Tonga.

23. ‘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.

24. In the present case, the applicant claims that life will be difficult for him as his parents age and he continues to age in Tonga, as a person with a mobility disability.

25. The applicant has not claimed, and there is no suggestion, that he will be subjected to the death penalty, the arbitrary loss of his life, or torture. In relation to other forms of significant harm, or cruel or inhuman treatment or punishment, the Tribunal notes:

    i.Cruel or inhuman treatment or punishment is defined as an act or omission by which severe pain or suffering, or 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. The pain or suffering must be intentionally inflicted, in that there is an actual subjective intention on the part of the person to bring about suffering by their conduct (see SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114])

    ii.Also, degrading treatment or punishment is exhaustively defined to mean an act or omission which causes, or is intended to cause, extreme humiliation, which is unreasonable, in the sense that there is an actual subjective intention on the part of a person to bring about the suffering by their conduct (again see SZTAL v MIBP; SZTGM v MIBP (2017) 262 CLR 362 at [26]–[27] and [114]).

26. The Tribunal accepts on the basis of the applicant’s evidence and that of his witness that he would have greater opportunities in Australia and that he and his family believe that it would be easier to provide for his support in the future if he was in Australia. It accepts that there are limited disability services, employment opportunities and accessibility to post-secondary education is limited for individuals with mobility issues. However, this is as a result of the general economic conditions of the country.

27. As set out above, the Tribunal does not accept that the applicant has fled the political opinion of the government and been subjected to economic hardship and strife. The applicant has not stated in his evidence to the Tribunal, nor is it demonstrated in the evidence that the government or anyone else has a relevant intention to harm him if he returned to Tonga.

28. The evidence is that in the past the applicant has been well-supported by his family and free from harm. Although his needs may increase in the future as his parents age, and as he ages, it remains that he has a house and existing family in Tonga and family members outside Tonga who are committed to providing for his needs and ongoing welfare. The Tribunal does not accept that he will experience any psychological, mental or economic harm or strife from the government that would amount to significant harm.

29. Accordingly, again considering the claims of the applicant separately and cumulatively, the Tribunal is not satisfied that there are substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to Tonga, there is a real risk that he will suffer significant harm.

30. The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).

31. There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).

    DECISION

32. The Tribunal affirms the decision not to grant the applicant a protection visa.

    Penelope Hunter
    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.

    …