2321322 (Refugee)

This matter concerned an application for review of a delegate of the Minister for Home Affairs' decision to refuse the applicant, a citizen of Tonga, a protection visa. The applicant arrived in Australia in June 2022 and applied for a protection visa in October 2023, claiming he had been a victim of persecution for his Protestant faith, including being beaten and detained by Tongan authorities. The delegate refused the visa, finding the applicant was not a refugee and did not face a real risk of significant harm upon removal. The applicant sought review of this decision.

The court was required to determine whether the applicant met the criteria for a protection visa under section 36 of the Migration Act 1958 (Cth). Specifically, the court had to consider whether the applicant was a refugee within the meaning of section 5H(1) of the Act, by assessing if he had a well-founded fear of persecution for reasons of religion, and alternatively, whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of removal, he faced a real risk of suffering significant harm under section 36(2)(aa).

The court affirmed the delegate's decision, finding that the applicant had not provided sufficient evidence to substantiate his claims. Despite the applicant's assertions of persecution, the court noted that country information regarding Tonga indicated a constitutional and legal framework supportive of religious freedom, with a high level of societal and government respect for such freedom. The applicant's claims were found to run counter to this information. Furthermore, the applicant did not avail himself of the opportunity for a hearing before the Tribunal, preventing further exploration of his claims. Consequently, the Tribunal was not satisfied that the applicant had a well-founded fear of persecution or faced a real risk of significant harm upon removal, and therefore did not meet the criteria for a protection visa.