2318773 (Refugee)

2318773 (Refugee) [2024] AATA 1279 (19 February 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2318773
COUNTRY OF REFERENCE:                   Tonga
MEMBER:Frank Russo
DATE:19 February 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 19 February 2024 at 12:10pm
CATCHWORDS
REFUGEE – protection visa – Fiji – political opinion and freedom of speech, economic opportunities and climate change – abuse and harm from community members and government officials – application prepared by brother without applicant’s knowledge of claims – vague evidence about political claims – previous subsistence work on father-in-law’s plantation – no element of persecution in economic hardship or climate change – country information – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5H(1)(a), 5J(1), (4)(c), 36(2)(a), (aa), (2A), 65
Migration Regulation 1994 (Cth), Schedule 2
CASES
Kopalapillai v MIMA (1998) 86 FCR 547
MIEA v Guo (1997) 191 CLR 559
Nagalingam v MILGEA (1992) 38 FCR 191
Prasad v MIEA (1985) 6 FCR 155
Randhawa v MILGEA (1994) 52 FCR 437
Selvadurai v MIEA (1994) 34 ALD 347
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 on 27 October 2023 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, who claims to be a citizen of Tonga, applied for the visa on 14 September 2023. The delegate refused to grant the visa on the basis that the delegate was not satisfied the applicant is a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal on 8 February 2024 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A], the applicant’s cousin. The Tribunal hearing was conducted with the assistance of interpreters in the Tongan and English languages.
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 (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.
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, 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).
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.
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 in this review are whether the applicant has a well-founded fear of being persecuted for one or more of the five reasons set out in s.5J in Tonga and, if not, whether 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.
The applicant provided the Tribunal with his application for review, together with a copy of the delegate’s decision and notice of the decision from the Department. The applicant did not otherwise provide the Tribunal with any other documents in support of his claims, other than providing a copy of his Tongan passport at the hearing.
The Tribunal has also had regard to the documents on the Department file, which include the application for the Protection visa and a copy of the biodata page of the applicant’s Tongan passport.
The Tribunal, in reaching its decision, has taken into account all of the evidence before it. It has also taken into account independent country information about Tonga.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Identity
The applicant provided copies of his Tongan passport to the Department and the Tribunal. On the basis of this information, and without any information to the contrary, the Tribunal accepts that the applicant is who he claims to be, that he is a national of Tonga, which is also his receiving country.
The applicant claimed at the hearing that he did not have a right to enter and reside in any third country. On the basis of the information before the Tribunal I accept this claim and find that the applicant does not have a right to enter and reside in any third country.
Claims
Claims made with visa application
In his Protection visa application, the applicant claims that he left Tonga because of the following reasons:
a.His political opinion of the government;
b.He is in search of greater economic stability;
c.He is fleeing economic hardship;
d.He is fleeing climate change and rising sea levels; and
e.Freedom of speech and expression. He openly expressed his opinion of the government, which was not providing job security for citizens or new graduates.
In response to the question of whether he has experienced harm in his home country, the applicant responded yes, and stated that he experienced ‘psychological, mental, economic and verbal harm and abuse from some community members and government officials’. He claims that he did not seek help in Tonga in relation to this harm because of fear and he did not know where to seek help against the government. He claims that he did not move to another part of the country to seek safety as there was ‘nowhere to go and no support at all’. He claims that if he returns to his home country, he will ‘suffer the same as before’.
Delegate’s decision
The applicant provided a copy of the delegate’s decision with his application for review. There is nothing in the delegate’s decision to indicate that the applicant was invited to attend a protection visa interview with the Department. The delegate made a decision based on the applicant’s written claims. The delegate’s decision advises that on 15 September 2023 the applicant was sent an acknowledgement of a valid visa application, which advised that he could provide additional information relating to his claims, as well as information on how to provide this. The applicant did not provide the Department with additional information about his claims.
The delegate found that the applicant’s claims that he will suffer economic hardship and the effects of climate change do not relate to reasons in s.5J(1)(a) of the Act, and considered that there was no information to indicate that he will be subject to harm on return to Tonga for one or more of those reasons. The delegate considered country information regarding political opinion in Tonga, and was satisfied on the basis of this information, that the applicant could express his views on the government in Tonga, within the limits of the law, without being subject to serious harm for doing so. The delegate was not satisfied that the applicant will face a real chance of serious harm or persecution from the government or its agents, upon return to Tonga, as a result of his political opinion. The delegate was not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a) or s.36(2)(aa) of the Act.
Evidence at the hearing regarding preparation and contents of application
At the hearing the applicant gave evidence that he made the visa application with the help of his youngest brother, who has since returned to Tonga. His brother completed the form, and a Fijian woman lodged the application on his behalf. The applicant stated that he does not know the contents of his application form, and he only received a copy of the form when his brother wrote to him from Tonga and told him to check the contents of his mailbox for a letter from the Tribunal. When asked whether he wished to make any changes to his application form or add to the contents of his application, the applicant did not respond directly. He instead responded that he was asking the Tribunal ‘for a chance’ and to see whether anything can be done for him.
Evidence regarding the applicant’s background and travel
The applicant confirmed that he is a citizen of Tonga. He gave evidence that apart from Australia, he travelled to [Country] in 2012 for about three months, during which he held a Seasonal employment work visa. He confirmed that he was born in [Village], he is of Tongan ethnicity, and he is an adherent of [a Church in Tonga]. He stated that he lived in [Island], Tonga immediately before arriving in Australia.
The applicant gave evidence that his family in Tonga includes his parents, a wife, whom he married in 2008, and [children], who are aged [Ages]. His wife and children live in [Island]. He has [siblings] who live in Tonga, one who is in Australia and [Number] who are in [Country].
The applicant gave evidence that he completed Form 4 in Tonga. The only work he undertook in Tonga was working in a plantation owned by his father-in-law. In Australia, he currently works as [an Occupation].
The applicant confirmed that he first arrived in Australia in mid-2018, holding what he stated was a work visa which allowed him to do seasonal work. He stated that he stayed for about 7 months and returned to Tonga in December 2018. He returned to Australia in November 2022 and has remained onshore since then. He confirmed that he applied for the Protection visa on 14 September 2023.
Applicant’s claims for protection and reasons for wishing to remain in Australia
When asked what his reasons were for claiming protection, the applicant told the Tribunal that the only reason why he applied for the Protection visa was so he could find a work opportunity and support his family in Tonga. When asked whether there were any other reasons why he applied for the Protection visa, he stated that the only reasons he did so was so he would not become ‘illegal’ in Australia. When asked who suggested that he apply for the Protection visa, he stated that he asked his brother to help him, as he did not want to remain in Australia unlawfully.
The Tribunal put to the applicant that in his visa application form, he claimed a fear of returning to Tonga on the basis of his political opinion about the government, freedom of speech and because he had spoken out against the government, in addition to fears about climate change and claims regarding economic hardship. The applicant indicated that he understood what the Tribunal was putting to him and that he is making these claims, but then stated that he is claiming protection because he no longer has any means of obtaining financial support for his family in Tonga.
Evidence regarding political opinion and claims regarding freedom of speech
When questioned about his claims regarding freedom of speech, the applicant responded that he just wants to come to Australia to work. The Tribunal put to him that his response indicates that he does not fear returning to Tonga on the basis of his political opinion, which the applicant agreed was the case. The applicant stated that he is concerned about struggles on the island he is from and made a vague and general reference to ‘political struggles’. When asked if he had ever expressed his political opinion about this or any other matter in Tonga, the applicant responded no. The applicant reiterated that the most important issue for him is to work in Australia, as there is no other way for him to support his family.
Evidence regarding economic hardship
The applicant gave evidence that everyone on the island he is from is struggling, which is the reason why he came to Australia. He stated that there is no way for him to survive on the island.
When asked what harm he experienced in Tonga, the responded that he is a father, and that he had to work in a plantation to feed his children. When asked again what harm he experienced, he stated that he wanted to get out as it was always a struggle, and because he has a family, the best way for him to support his family is to get out of the island.
The Tribunal put to the applicant that he first came to Australia in July 2018 and returned there in December 2018, and that he then remained there until December 2022, when he returned to Australia, a period of approximately four years. The Tribunal put to him that his return to Tonga may not support a claim that he feared remaining in Tonga or that he was unable to subsist. The applicant gave vague evidence in response, stating that during this time he could not build a house, which is why he came to Australia. He stated that he was struggling during this time and was trying to find a place. The Tribunal put to the applicant that he gave evidence that he previously worked on a plantation owned by his father-in-law and that he was able to grow food to support his family. The applicant responded that he believes Australia is the answer and there is no other way to support his family.
The Tribunal also put to the applicant that he has [siblings] in [Country] and one in Australia, and questioned whether they support their extended family by sending remittances. The applicant confirmed that all of them contribute. He stated that it is his duty to send money to the islands. His family is on an outer island, however, his mother lives on the main island, and he sends money to support them. He stated that his siblings have their own families.
The Tribunal put to the applicant that it may have concerns with his claims regarding economic hardship, as there is no element of persecution. The applicant responded that he made a decision with his wife that he would come to Australia, and that his duty of care is to his family.
Claims regarding climate change and rising sea levels
When asked about his fears regarding climate change, the applicant stated that there is so much change, which has included changes to crops. He stated that he is struggling, and it is hard for him to support his family. He stated that the seasons are not the same anymore, there is a lack of space and too many people. He stated that dealing drugs will be the only way to support his family if he returns to the island, and he does not want to do this. He stated that his family are better off because he is sending money to them, and there is no other way to support them.
Witness evidence: [Ms A]
[Ms A] confirmed that she is the applicant’s cousin. She stated that she was born in Tonga and arrived in Australia in December 2018 and currently holds a work visa. She stated that the applicant has a wife and children in Tonga, and that he wants to stay in Australia to help raise his children. When asked if she is aware of any reasons why the applicant cannot return to Tonga, she stated that he can barely survive there and would only have a small income to support his family. She stated that the applicant was previously working on a plantation, that his family would grow their own food, but they need additional money to pay for things like meat and school fees. She stated that the applicant does not have a good income in Tonga. She confirmed that she did not wish to give evidence about any other matters.
REASONS AND FINDINGS
On the basis of his Tongan passport, I accept that the applicant is a national of Tonga and not national or citizen of any other country.
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 the 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’. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making, the relevant facts of the individual case will have to be supplied by the applicant him or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for her or him. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant. (MIEA v Guo & Anor (1997) 191 CLR 559 at 596, Nagalingam v MILGEA (1992) 38 FCR 191, Prasad v MIEA (1985) 6 FCR 155 at 169 70.)
In addition, the Tribunal is not required to have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been established. Nor is the Tribunal obliged to accept claims that are inconsistent with the independent evidence regarding the situation in the applicant's country of nationality (See Randhawa v MILGEA (1994) 52 FCR 437 at 451, per Beaumont J; Selvadurai v MIEA & Anor (1994) 34 ALD 347 at 348 per Heerey J and Kopalapillai v MIMA (1998) 86 FCR 547).
Assessment of claims regarding political opinion
The applicant claims in his written application that he left Tonga because of his opinion of the government and because of freedom of speech and expression. He claims that he openly expressed his opinion about the Tongan government, in particular the government not providing job security for its citizens or for new graduates. Whereas at the hearing, the applicant told the Tribunal that he was unaware of the written claims made for him in his visa application, which was prepared by his brother. The applicant denied that he had ever expressed his political opinion about the economic situation in Tonga or about anything else. While the applicant expressed some views about the economic struggle in Tonga and his desire not to be involved in the dealing of drugs, which he indicated is becoming an increasing problem in Tonga, I do not accept that the applicant has ever expressed his views about this to the government or to anyone else in such a way that has brought him to the attention of the authorities. I do not accept that the applicant has ever been harmed on the basis of his political opinions in Tonga. I do not accept that he has experienced any psychological, mental, economic, verbal or any other kind of harm from government authorities, community members or anyone else on this basis.

There is also no evidence before the Tribunal to indicate that the applicant has been politically active or vocal about any issues relating to the Tongan government or its policies since arriving in Australia and the Tribunal is not satisfied that the Tongan government or authorities have developed any adverse interest in the applicant since his arrival in Australia.
Country information indicates that Tonga is a constitutional monarchy[1] and parliamentary elections are held every three years.[2] Tonga’s Constitution guarantees freedom of the press and a variety of news outlets operate independently, including online.[3] The country information also indicates that there are no major constraints on the ability of Tongans to discuss politics or other topics in person or on social media, although in August 2019, it was reported that Tongan police were considering laying treason charges against people insulting the royal family on Facebook.[4] Non-government organisations have not reported harassment or other restrictions by authorities in civil society and human rights defenders.[5] Tonga’s Constitution protects freedom of assembly. While demonstrations are rare, they generally remain peaceful. Safeguards against arbitrary arrest and detention are said to be respected by the authorities.[6]
[1] DFAT, Tonga country brief, Human rights in the Pacific: a situational analysis 2020, United Nations Human Rights Office if the High Commissioner & Pacific Community.
[3] Ibid.
[4] Ibid.
[5] Ibid.
[6] Ibid.
The available country information indicates that the applicant would, within the limits of the law, be able to express his views with respect to the government of Tonga or its policies without being subject to any harm. This includes expressing his views on social media. The country information also indicates that there are safeguards against arbitrary arrest and detention. When this country information was put to the applicant, he responded that the information is correct, but stated that staying on his island is a struggle. When asked whether he had anything further to say about his claims regarding political opinion and freedom of speech, the applicant twice repeated that his brother filled out the visa application form for him and did not answer the question.
On the basis of the evidence before the Tribunal, I find there is no basis for the claim that the applicant will experience any harm on the basis of his political opinion on return to Tonga. The country evidence also does not support the written claims that the applicant would experience any harm on this basis. Accordingly, the Tribunal is not satisfied that the applicant faces a real chance of serious harm on the basis of his political opinion on return to Tonga.
For the same reasons, I am not satisfied that on the basis of his claims regarding political opinion, 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 the applicant will suffer significant harm.
Assessment of claims regarding climate change and rising sea levels
The applicant’s evidence regarding a fear of returning to Tonga on the basis of climate change and rising sea levels consisted of general evidence about changes to seasons, the limited amount of land that was available to farm, and the resulting struggles to make a living. The applicant also made some references to people in Tonga turning to dealing in illicit drugs as a means to deal with economic problems, which I have assessed below in considering the economic claims made by the applicant.
The definition of ‘refugee’ under s.5H(1) of the Act, requires that, in a case where a person has a nationality, that they are outside the country of their nationality, and owing to a well-founded fear of persecution, is unable or unwilling to avail themselves of the protection of that country. The definition of a ‘well-founded fear of persecution’ requires that the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion (s.5J(1)(a)). The persecution must also involve systematic and discriminatory conduct (s.5J(4)(c)). Persecution implies an element of motivation on the part of those who persecute in order to inflict harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
The applicant was unable to tell the Tribunal who would persecute him on the basis of climate change or rising sea levels, should he return to Tonga. I do not accept that the applicant’s claims regarding climate change involve a well-founded fear of persecution for any Convention related reason. In addition, the applicant is unable to identify an agent who would be responsible for persecution. There is also no evidence to indicate that the harm the applicant claims to fear involves systematic and discriminatory conduct, but rather that the claimed harm applies to the population of Tonga as a whole. As the harm feared is not directed at the applicant, or a group to which the applicant belongs, for reasons of his race, religion, nationality, membership of a particular social group or political opinion, there is no apparent element of persecution for the purposes of the Act. While I accept that the applicant has genuine concerns about climate change and how this may impact on Tonga, the conditions affect all residents of Tonga.
The Tribunal notes there is no evidence before it of the applicant having experienced targeted serious harm or otherwise significant harm when he was living in Tonga on this basis. The Tribunal also considers there is no evidence before it of the applicant being at any risk of targeted serious harm or otherwise of significant harm on this basis if he returns to Tonga such as would engage Australia’s protection obligations.
Economic claims
DFAT advises that Tonga has a small open economy which is vulnerable to external shocks, and which faced an economic contraction due to COVID-19, although the worst impacts on vulnerable communities were minimised with overseas donor support.[7] DFAT also advises that the economy is heavily reliant on remittances from Tongans working overseas, with the main sources of remittances being from the USA, then New Zealand and Australia.[8] Foreign development assistance in the form of loans, grants and direct aid is also an important component of the economy.[9] Construction and infrastructure projects are sources of growth and agriculture is the leading productive sector.[10] DFAT advises that despite its economic challenges, Tonga remains one of the best performers in the Pacific in terms of progress against Millennium Development Goals.[11]
[7] DFAT, Tonga country brief, Ibid.
[9] Ibid.
[10] Ibid.
[11] Ibid.
The applicant gave evidence that, if he were to return to Tonga, he would struggle and there would be no means for him to survive. He was up-front in his evidence regarding his motives in applying for the Protection visa, stating that he did so, so he could continue to stay in Australia lawfully for the purpose of working to support his family in Tonga. When questioned further, he gave evidence that when he was in Tonga, he was able to support his family by working in a plantation owned by his father-in-law. I accept the applicant’s evidence, as well as that of [Ms A], which indicates that the applicant struggled to make a living by working on the plantation, and that if he undertakes the same work on return to Tonga, he would have a small income. The applicant has not provided any convincing information to indicate that he would not be able to do the same work return to Tonga. There is therefore no convincing information to indicate that the applicant would be denied the capacity to earn a livelihood of any kind, such that it would threaten his capacity to subsist. I also find there is insufficient evidence to indicate that he would experience significant economic hardship that would threaten his capacity to subsist. In this regard, I also note that the applicant returned to Tonga from December 2018 to December 2022, and there is no evidence that he experienced serious harm or was unable to subsist or was denied the capacity to earn a livelihood of any kind during this period.
I have also considered the applicant’s claims that if he returns to Tonga, there will be no other way to support his family other than turning to dealing in drugs. The applicant stated that he does not wish to get involved with this but fears he will be influenced and socialised by others. I accept that in recent years there has been a worsening of the trade in illicit drugs in Tonga[12], with the country not only being a site for international drug trafficking, but also a site of small scale drug production labs since 2004.[13] There are recent reports of positive inroads into the illicit drug trade by law enforcement agencies in Tonga, who have been conducting investigations in partnership with agencies across the Pacific.[14]
[12] ‘Tonga’s drug crisis: Why a tiny Pacific island is struggling with a meth epidemic’, The Guardian, 28 November 2021, available at: Jose Sousa-Santos, ‘Drug trafficking in the Pacific Islands: The impact of transnational crime’, Lowy Institute, 16 February 2022. Available at: ‘Tonga’s top cop says region making positive steps to fight drug problem after recent seizures’, RNZ, 14 February 2024, available at: >
Given the applicant has previously made a living through agriculture and was able to support his family by doing so, and given the country information which indicates that agriculture is the leading productive sector in Tonga, I do not accept that the applicant will be forced to turn to dealing drugs to make a living. I accept that the applicant is concerned about the growing trade in illicit drugs in Tonga, but I do not accept that the applicant would be forced by anyone to be involved in this illegal trade. I do not accept that any decision on the part of the applicant to become involves in such an illegal trade would enliven Australia’s protection criteria, as it does not involve an element of fear of persecution for one or more of the reasons set out in s.5J(1)(a) of the Act, nor does it involve systematic or discriminatory conduct against the applicant as an individual or as a member of any group. I do not accept that the applicant has identified a basis on which he would suffer harm or persecution upon return to Tonga, now or in the reasonably foreseeable future.
Given the applicant’s evidence, the Tribunal considers that the applicant applied for the Protection visa primarily to maintain his stay and to secure ongoing employment rights in Australia after the conclusion of his Temporary Work (International Relations) (subclass 403) visa in September 2023, as he had limited visa options open to him to enable him to remain in Australia. There is no evidence that the applicant would experience systematic or discriminatory conduct, as required by s.5J(4)(c) of the Act, by anyone in Tonga on the basis of his economic claims. The Tribunal is also not satisfied that there is a real chance that he will face serious harm on return to Tonga on the basis of this claim. I am also not satisfied that there are substantial grounds for believing that the applicant will suffer significant harm, as defined in s.36(2A) of the Act, as a necessary and foreseeable consequence of the applicant being removed from Australia to Tonga.
Cumulative consideration of claims and finding regarding the refugee criterion
Having considered all of the applicant’s claims, individually and cumulatively, and all of the evidence, I find there is no real chance that the applicant will suffer serious harm amounting to persecution from anyone for any reason, on return to Tonga, now or in the reasonably foreseeable future.
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). Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
Findings regarding complementary protection
Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa).
In view of the above findings, the Tribunal is not satisfied that there is a real risk that the applicant will suffer significant harm for any of the reasons claimed if he returns to Tonga now or in the reasonably foreseeable future. The Tribunal has not accepted that the applicant will experience any harm on the basis of his political opinion. There is insufficient evidence to indicate that he would experience serious harm, as defined by s.36(2A) of the Act, on the basis of his economic claims or his claims relating to climate change and rising sea levels.
Having considered all of the applicant’s claims, individually and cumulatively, and all the evidence, the Tribunal is not satisfied that there is a real risk that the applicant will be arbitrarily deprived of life, the death penalty will be carried out on him, he will be subjected to torture or cruel or inhuman treatment or punishment or he will be subjected to degrading treatment or punishment if he returns to Tonga now or in the reasonably foreseeable future.
Accordingly, the Tribunal is not satisfied that 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 as defined in s.36(2A) of the Act. Therefore, the Tribunal finds that the applicant does not satisfy the criterion in s.36(2)(aa) of the Act.
Conclusion
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).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
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
The Tribunal affirms the decision not to grant the applicant a protection visa.
Frank Russo
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.
…

[2024] AATA 1279

19 February 2024

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Immigration

Administrative Law

Statutory Interpretation

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Judicial Review

Procedural Fairness

Statutory Construction

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Natural Justice