2318134 (Refugee)

The applicant, who had previously entered Australia for seasonal work, sought a protection visa. The dispute concerned whether the applicant had established a well-founded fear of persecution or a real risk of significant harm upon return to Tonga. The applicant's claims for protection arose in June 2023 following an earthquake that affected his hometown, property, and family. The decision under review was made by the Administrative Appeals Tribunal.

The legal issues before the Tribunal were whether the applicant met the criteria for a protection visa under section 36(2)(a) of the Migration Act 1958, as a refugee with a well-founded fear of persecution, or under section 36(2)(aa), as a person facing a real risk of significant harm as a necessary and foreseeable consequence of removal. Specifically, the Tribunal had to consider the applicant's asserted fears relating to ongoing seismic risks, the destruction of his family home, and legal and financial challenges concerning property ownership, including the potential for imprisonment.

The Tribunal considered the applicant's claims in light of the 'Refugee Law Guidelines' and 'Complementary Protection Guidelines'. The applicant stated he left Tonga for employment and that his protection claims only arose after the June 2023 earthquake. He did not experience harm prior to departure. His fears upon return centred on the unpredictability of future earthquakes, the destruction of his family home, and legal and financial consequences related to property ownership following his father's death, including potential legal action, fines, or imprisonment. He also expressed doubt about the ability of Tongan authorities to protect him, believing they would prioritise property matters over his safety, and stated he could not relocate within Tonga due to ongoing seismic risks and the persistent legal issues. The Tribunal found that the applicant did not satisfy the criterion under section 36(2) of the Act.

Consequently, the Tribunal affirmed the decision not to grant the applicant a protection visa.