2403874 (Refugee)

2403874 (Refugee) [2024] AATA 3554 (19 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2403874
COUNTRY OF REFERENCE:                   Tonga
MEMBER:Catherine Wall
DATE:19 July 2024
PLACE OF DECISION:  Melbourne
DECISION: The Tribunal remits the matter for reconsideration with the following directions:
(1) That the first applicant satisfies s 36(2)(a) of the Migration Act; and
(2) That the second applicant satisfies s 36(2)(aa) of the Migration Act.

Statement made on 19 July 2024 at 11:41am
CATCHWORDS
REFUGEE – protection visa – Tonga – membership of particular social group – young adult sister and minor brother – attempted rape of first applicant when minor by distant relative – reported to police but charges dropped after apology – regular violence to both applicants by father – cultural taboo against reporting family violence and initial claim by second applicant of no harm – guidelines on evidence from minors – nervous but considered and consistent evidence – country information – prevalence and low prosecution rates – small population and kinship networks – relocation very difficult – first applicant’s claim accepted on refugee criteria, second applicant’s on complementary criteria – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1)(c), 5LA, 36(2)(a), (aa), (2B), 65
Migration Regulations 1994 (Cth), Schedule 2
CASES
Abebe v Commonwealth (1999) 197 CLR 510
MIAC v MZYYL (2012) 207 FCR 211
SZSPT v MIBP [2014] FCA 1245
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 28 February 2024 to refuse to grant the applicants protection visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The first applicant is a [Age] year old citizen of Tonga. The second applicant is the first applicant’s [Age] year old brother who is also a citizen of Tonga. The applicants last arrived in Australia [in] September 2023 and applied for the visas on 25 October 2023.
The delegate refused to grant the visas on the basis that the applicants were not owed protection by Australia. The applicants were not invited to an interview with the department. They applied for review of those decisions on 21 March 2024.
The applicant appeared before the Tribunal on 21 June 2024 to give evidence and present arguments. They were not represented in relation to the review. The Tribunal also took evidence from the applicants’ mother, [Ms A].
CLAIMS AND EVIDENCE
A summary of the first applicant’s claims as detailed in the protection visa application are as follows:
She was living in her aunt’s house with her father and her brother. Also living in the house were a couple who worked for her aunt’s family. When she was [Age] years old this man tried to rape her when her adult family members were not at home. She reported it to the police and her aunt chased the couple from the house.
Last year her aunt asked the couple to come back to the house to work. The applicant did not feel safe living there so she moved to Australia.
She feels unsafe in Tonga. She did not try to relocate because she was [Age] years and ‘under her aunt’s permission’. She believes that she will be harmed if she returns to Tonga as there is a high chance she will be raped by the same person.
Her brother is the only family she has and he is safe with her. He seeks protection because of what happened to his sister.
On 5 December 2023 the Department advised the applicants that their claims lacked substantiating details such as dates and locations and supporting documentation and they were invited to provide additional information in support of their claims. On 3 January 2024 the applicants submitted additional details of their family composition and family circumstances.
Prior to the Tribunal hearing the applicants submitted a copy of. A ‘Confirmation Letter of Case CRA [Reference]’ issued by the Tonga Police and dated [April] 2024. The letter states:
This is to confirm that [the applicant] (f) [Age] yrs of [Location 1] lodge a complaint about indecent assault on [date].12.2020. The investigator of the case file had caried on investigating the crime. The type of attitude and unlawful behaviour makes the life of this girl live in great fear and danger. This case has been settled by both sides, the victim of the crime’s family and the perpetrator and the file had closed.
In the accompanying email the first applicant stated that her father accepted an apology from the perpetrator however she cannot face returning to Tonga where the assault happened and she wants to start a new life in Australia.
Evidence at hearing
The Tribunal took evidence from the first applicant while the second applicant and his mother, [Ms A], left the hearing room.
The first applicant said that she grew up living in [Location 2], Tonga, with her parents, grandma, uncle and cousins on her mother’s side. Her father’s family comes from an island called [Island].
After the death of the grandmother, the applicants and their father moved to [Location 1] to live with their mother’s sister. Also living at the aunt’s house was an older man called [Mr B] who was a distant relative of the applicants’ aunt. In 2019 the applicants’ mother moved to Australia for a better life.
The first applicant said that in 2020, when she was [Age] years old, she was walking to her room after showering when [Mr B] cornered her and forced her to kiss him. He was touching her and followed her into her room and locked the door. She said that she was terrified and froze as she believed he was going to rape her. She managed to escape from the room and called to her brother for help. At the time of this assault the applicants’ father was not home as he had walked to the shop. The applicants left the house and tried to find their father. She said that her father was very angry when told what had happened and reported [Mr B] to the police.
The police caught [Mr B] and put him in goal. The applicants’ aunty asked their father not to pursue charges against [Mr B] so their father agreed to drop the charges if [Mr B] apologised. After some time [Mr B] returned to live in the house where the applicants lived. He denied any wrongdoing. The first applicant explained that she was always scared that he would repeat the attack and she had to ensure that she was never alone with him.
The applicants’ evidence is supported by a Tonga Police report dated [April] 2024 which states that the applicant lodged a complaint of indecent assault [in] December 2020. It says that the unlawful behaviour made the applicant live in fear and that the case has been settled by both parties and is now closed.
[Ms A] told the Tribunal that she was living in Australia when she received a message from her daughter (the first applicant) about having been assaulted by [Mr B]. She said that the first applicant was extremely distressed and asked to come to Australia as she could not remain in the house where she would continue to see [Mr B]. [Ms A] said that she applied for visas for the applicants however they were initially refused. She expressed anger with her sister who had not informed her of the sexual assault.
When asked if she could rely on her father to protect her, the first applicant referred to his ‘anger problems’ and heavy drinking. Upon further questioning, both the first applicant and [Ms A] described being subject to regular violence in their family home. [Ms A] said that her husband regularly beat her when they lived together. He became drunk often and would kick and punch her. She had to seek treatment for damage to her eyes when he kicked her in the face on one occasion. She said that she never reported her husband to the police. Since living in Australia [Ms A] has left her marriage and has a new partner.
The first applicant said that her father was often physically violent towards her but would focus his violence more on his son, the second applicant. Because of his drinking, she could not rely on her father for protection from [Mr B].
[Ms A] said that the assault has had lasting effects on the first applicant. She is scared of having contact with men and she avoids social situations where she might encounter men. She has not sought psychological treatment since being in Australia.
I asked the first applicant if she can find alternative accommodation if she returns to Tonga. She explained that this would not be possible as she is a young single woman without employment and that she would be required to live with her father and extended family. [Ms A] expressed her concern about the applicants living in her sister’s home as there are parties every weekend where people drink heavily and behave badly. When this happens, the applicants need to hide in the house.
The second applicant’s evidence was consistent with that given by the first applicant and [Ms A]. He was initially reluctant to discuss his father’s violence, but acknowledged that his father did regularly assault him, his sister and his mother. He saw his role as trying to protect his sister and she referred often to her reliance upon him. Both applicants said that their father was much more violent toward the second applicant because he was male.
It was evident throughout the hearing that the applicants and [Ms A] did not consider the violence inflicted by [Ms A]’s husband to be unusual. When I made this observation, [Ms A] said that male violence as they had experienced is common in Tonga, that it is a taboo subject and that things that happen within the family are not discussed or reported outside the family. For this reason none of them ever reported the family violence to the police in Tonga.
The applicants have been living with their mother in [City] where they both attend school. They want to remain in Australia with their mother where they feel safe.
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.
ASSESSMENT OF CLAIMS AND EVIDENCE
Under s 5AAA of the Act, it is the responsibility of the non-citizen to specify all particulars of his or her claim for protection, 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 of the Act; Abebe v Commonwealth of Australia.[1]
Identity
[1] (1999) 197 CLR 510.
The applicants’ nationality is not an issue. They travelled to Australia on valid Tongan passports and have consistently stated in documentation that they are nationals of Tonga. The delegate did not indicate any concerns about the applicants’ identity or nationality. Therefore, I am satisfied that the applicants are nationals of Tonga and I have assessed their claims against Tonga as their receiving country.
Credibility
I am mindful that, when applicants have experienced trauma, the hesitancy to disclose can be due to fear of reliving experiences, shame, guilt, or anger about having to prove experiences of violence or injustice.[2] I have had regard to the United Nations guidance on evidence from minors in protection cases which draws a distinction between children and adolescents. The Handbook[3] considers that persons 16 years old or over ‘may be regarded as sufficiently mature to have a well-founded fear of persecution’ however the individual’s mental maturity should be assessed. The applicants were clearly nervous when giving evidence however I was satisfied that they were competent to give sworn evidence and were aware of the implications of their evidence.
[2] Administrative Appeals Tribunal / Migration & Refugee Division/ Guidelines on Vulnerable Persons/ Knowledge Management/ November 2018
[3] United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status and Guidelines on International Protection (Reissued 2019) at [213]–[219].
I found that the evidence given by the applicants and [Ms A] was considered and consistent. They did not embellish their evidence. Rather, I found that they all understated the significance of the violence they had encountered in Tonga. Their descriptions of violence perpetrated by the applicants’ father conveyed an attitude of ‘resignation’. I accept that the applicants and [Ms A] have spent their lives attempting to modify their behaviour in order to minimise their father’s violent attacks. I also accept that they never reported the violence because of the cultural taboos about disclosing family business to others, particularly to the police.
Country information
Country information indicates that gender-based violence is prevalent in Tonga. Domestic violence is a criminal offence in Tonga; however prosecution rates are low.[4] In 2022, the deputy police commissioner reported that domestic violence cases were increasing.[5] The last national survey conducted in 2009 (published in 2012) found that 40 per cent of ever-partnered women have experienced physical and/or sexual violence from a partner at least once in their lifetime.[6] The majority of women who experienced physical partner violence reported that it happened multiple times and two thirds of women reported severe acts of violence.[7] Underreporting is high, as most cases are not reported to the police and awareness of the issue is extremely low, especially in rural areas.[8]
[4] ‘Domestic violence on the rise in Tonga’, Radio New Zealand, 3 August 2020, 20230424142754
[5] 20220421091254 152 ‘Country Reports on Human Rights Practices for 2022 - Tonga', US Department of State, 20 March 2023, 20230322104437
[6] ‘National study on domestic violence against w omen in Tonga 2009’, Ma’a Fafine mo e Famili Inc, June 2012, p.40, 20230424141907; ‘Pacific partnership to end Violence against Women and Girls (Pacific Partnership) Tonga Country Summary’, United Nations Women et al, June 2022, p.4, 20230424142623
[7] ‘National study on domestic violence against w omen in Tonga 2009’, Ma’a Fafine mo e Famili Inc, June 2012, p.40, 20230424141907
[8] ‘Domestic violence on the rise in Tonga’, Radio New Zealand, 3 August 2020, 20230424142754; ‘Pacific partnership to end Violence against Women and Girls (Pacific Partnership) Tonga Country Summary’, United Nations Women et al, June 2022, p.4, 20230424142623
A 2009 national survey in Tonga found that 68 per cent of women have experienced physical violence by a person other than their partner since the age of 15.[9] The main perpetrators of this violence were fathers and male teachers, likely due to cultural norms surrounding violence as an accepted form of discipline.[10]
[9] ‘National study on domestic violence against w omen in Tonga 2009’, Ma’a Fafine mo e Famili Inc, June 2012, p.61, 20230424141907 3
[10] ‘Pacific partnership to end Violence against Women and Girls (Pacific Partnership) Tonga Country Summary’, United Nations Women et al, June 2022, p.4, 20230424142623
In 2020 the Director of the Women and Children Crisis Centre, Ofa Guttenbeil Likiliki, told the Press Club in Nuku'alofa that… “the chief problem we have found in counselling is that it is normal for most Tongan men to think that socially, they are in a position of power in the home, and they have entitlements, which include other members of the family carrying out, without question, what they want."[11]
[11] Domestic violence on the rise in Tonga’, Radio New Zealand, 3 August 2020, 20230424142754
Sexual harassment is also common in Tonga.[12] Rape is punishable by up to 15 years in prison and the law recognises spousal rape.[13] Police investigate and prosecute rape cases. Some young girls are compelled by their parents to marry men who raped them to prevent family shame.[14] Sexual harassment is not a crime under Tongan law. Physical assault can be prosecuted as indecent assault.[15]
[12] Country Reports on Human Rights Practices for 2022 - Tonga', US Department of State, 20 March 2023, 20230322104437
[13] 'Country Reports on Human Rights Practices for 2022 - Tonga', US Department of State, 20 March 2023, 20230322104437
[14] 'Country Reports on Human Rights Practices for 2022 - Tonga', US Department of State, 20 March 2023, 20230322104437
[15] 'Country Reports on Human Rights Practices for 2022 - Tonga', US Department of State, 20 March 2023, 20230322104437
The Tongan government provides financial support to NGOs to assist survivors of sexual violence. The Ministry of Police, local communities, youth groups, churches, the Women and Children Crisis Centre (WCCC) and other NGOs conduct training programs for government agencies and civil society groups on sexual harassment, violence against women and domestic violence.[16] Research suggests however that these services have limited capacity and have been overwhelmed since Covid and the eruption of the Hunga-Tonga Hunga-Ha'apai volcano in January 2022.[17]
[16] 'Country Reports on Human Rights Practices for 2022 - Tonga', US Department of State, 20 March 2023, 20230322104437
[17] ‘Domestic violence cases rise in wake of Hunga Tonga-Hunga Ha'apai eruption, as women call for a power shift in humanitarian response’, ABC News, 17 April 2022, 20230424142938; ‘Domestic violence on the rise in Tonga’, Radio New Zealand, 3 August 2020, 20230424142754

I have examined the potential for the first applicant to return to Tonga and live separately from her family where she experienced sexual assault and family violence. A September 2007 iKNOW Politics report indicates that the accepted cultural practice in Tonga is for single women to live with their family until they marry. The relevant section of the report states that:
Being single in Tonga does not mean flatting or living independently. It is common and also the accepted cultural practice that young single women remain at their family home until they marry or emigrate even when well over 21 years of age. Almost all of the respondents who indicated that they were separated, divorced or widowed remained at their husband’s family home with the paternal family (in the case that the husband had left) or had returned to their family home. None of these women had acquired independent housing or accommodation.[18]
[18] 'Advancing Women's Representation in Tonga', Guttenbeil-Likiliki, O, iKNOW Politics, 28 September 2007, p.181, CIS1ACBC92934
While mindful that the above information is somewhat dated, a more recent Special Broadcasting Service (SBS) article on Tongan culture provided the following information regarding the importance of the family unit:
Kinship ties have paramount importance in Tongan society. In the Tongan language, there is no word to refer to one’s nuclear family. The term ‘fāmili’, which stems from English, is used to refer to one’s immediate family. Rather, people tend to identify with their kāinga (extended family). The fāmili consists of a married couple, their children and sometimes other family members under the same roof. The extended family consists of relatives who live in different households in the same or several villages. The close relationship one has with their extended family is reflected in the familial terms used to refer to family members. For example, a Tongan will usually refer to all their maternal aunts as ‘mother’ and all paternal uncles as ‘father’. Cousins are also thought of as brothers or sisters.[19]
[19] 'Tongan Culture - Family', Special Broadcasting Service (SBS), n.d. (accessed 26 March 2021), 20210326144349
The applicants’ evidence is that they would be required to live with their father in their maternal aunt’s home if they return to Tonga. I find that their claim is consistent with the country information outlined above.
Does the applicant meet the refugee criteria?
Having considered the applicants’ evidence and relevant country information, I accept the following:
That first applicant was sexually assaulted by a distant relative in the family home when she was [Age] years.
That the matter was reported to the police but the applicants’ father dropped the charges and the perpetrator returned to living in the family home.
That the first applicant was fearful of further assaults in her family home and came to Australia to seek safety with her mother.
That the applicants’ father has perpetrated family violence on both applicants and their mother over many years.
That the applicants cannot seek protection from their father or other relatives in Tonga.
That it would be very difficult for the first applicant to relocate in Tonga given her age and vulnerability and strong cultural expectations that single women live with their family until marriage.
That the second applicant is [Age] years old, has been subject to family violence by his father and would be further subject to violence if he returns to Tonga.
Frist applicant
Having accepted that the applicant fears harm from her father and her male relative, I must consider if the harm is for reasons of her race, religion, nationality, membership of a particular social group or political opinion. Although family violence and sexual assault can affect a person irrespective of gender, it is widely acknowledged that women are significantly more likely than men to experience sexual assault and family violence.[20] In this case the gendered nature of the violence directed at the applicant by her father and her male relative has its genesis in beliefs about the role and status of women and the perceived right of male members of the family to dominate and control the applicant because of her gender. Accordingly, I find that the harm the applicant fears from her father and male relative [Mr A] is directed at her because of her membership of the particular social group ‘women in Tonga’. I consider that the group of ‘women in Tonga’ is identifiable by the characteristics of gender and nationality and the common characteristics or attributes are not a shared fear of persecution. Therefore, I am satisfied that the harm she fears is for reason of her membership of a particular social group for the purpose of s 5J(1)(a).
[20] Australian Government Attorney General’s Department, Australian Institute of Judicial Administration, University of Queensland & University of Melbourne National Domestic and Family Violence Bench Book June 2021 at 3.1 Contents - National Domestic and Family Violence Bench Book (aija.org.au)
I have considered whether the real chance of persecution relates to all areas of Tonga as required by s 5J(1)(c). In making that assessment, I note that Tonga is a relatively small country in the Pacific. According to the DFAT Country Brief Tonga[21] the Tongan archipelago is comprised of 176 islands, 36 of which are inhabited by a population of approximately 106,000. Communities are based on family groupings and, as detailed in country information detailed above, kinship ties dominate social and financial interactions across the country.
[21] Tonga country brief | Australian Government Department of Foreign Affairs and Trade (dfat.gov.au)
I find that the first applicant faces persecution from members of her family with whom she lived. Where the persecutor is a non-state agent, internal relocation will not be an option if there is a risk that the non-state actor will persecute the applicant in other areas of the country. The issue is whether she would face that persecution if she lived elsewhere in Tonga. Given the small population of Tonga and the close kinship networks that operate across the country, I find that the first applicant’s father and extended family could easily locate her anywhere in Tonga. It is evident from country information that gender violence in Tonga is related to male beliefs that they hold power over women and are entitled to use violence as a means of control. The evidence from the applicants and [Ms A] is that the applicant’s father is a violent man who abuses alcohol and that he is angry that his wife and children have left him. On this basis, I reasonably expect that he would attempt to find the first applicant if she returns to Tonga, that it would not be difficult for him to locate her, and that he would seek to punish her for leaving the country. With regard to these circumstances, I find that the real chance of persecution relates to all areas of Tonga.
Although there are legal protections available in Tonga in regard to family violence and sexual assault, I find that cultural norms prevent women from reporting the violence and seeking police protection. The assault on the first applicant was reported to police but withdrawn by her father due to family pressure. I find that it would be very difficult for the first applicant to pursue legal protection if her family is opposed to police involvement. Further, I find that it would be very difficult for the applicant to report her father’s family violence given her dependence on him for housing and financial support. For these reasons I find that the first applicant would not be able to access effective protection measures if returned to Tonga: s.5LA.
Having reviewed and considered all information before it, I find that there is no evidence which indicates that the applicant has a right to enter and reside in a country other than her home country – Tonga. Therefore, I find that s.36(3) of the Act does not apply to the applicant in this case.
Accordingly, I am satisfied that the first applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
Second applicant
In the visa application the second applicant stated that he had never been harmed in Tonga and he did not fear harm upon return to Tonga. He expressed the need to remain in Australia to be with his sister and to keep her safe. At hearing, however, he reluctantly admitted to experiencing frequent physical assaults from his father after his sister and mother described the family violence they had all experienced in Tonga.
On the evidence before me I find that the second applicant has been subject to persistent and serious family violence perpetrated by his father over many years. I am satisfied that the family violence will not only continue if he returns to Tonga but may increase because his father is angry that his children have left the country. I am not satisfied, however, that the second applicant’s fear of persecution is for a refugee reason as it is not for reasons of race, religion, nationality, membership of a particular social group or political opinion. Accordingly, I am not satisfied that the second applicant is a person in respect of whom Australia has protection obligations for the purpose of s 36(2)(a).
Complementary protection criteria
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 second applicant is [Age] years of age and vulnerable. I accept the evidence at hearing that he has grown up in a family characterised by family violence perpetrated by his father who drinks heavily and has ‘anger issues’. When his mother left the family home in 2019 he and his sister lived with their father in their maternal aunt’s home, which is consistent with cultural kinship norms in Tonga. I accept the evidence at hearing that this home was not a safe place for children as there were frequent parties and consumption of large amounts of alcohol. I accept the applicants’ evidence is that they frequently had to hide to keep themselves safe from their father and other adults.
I find that, if the applicant returns to Tonga, he will need to live with his father in his maternal aunt’s home. I find that he will continue to be assaulted by his father and that the violence may increase because his father is angry that he and his sister moved to Australia.
‘Cruel or inhuman treatment or punishment’ is defined in s 5(1) of the Act as 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;
The Complementary Protection Guidelines advise that decision makers should keep in mind that, although a high level of severity is required, any particular vulnerabilities of the applicant must also be taken into account. These may include their gender, age, state of health (mental and physical), but also extend to the exploitation of phobias which the applicant is known to suffer, or cultural taboos. Decision makers must also consider the particular context of the claims made, for example the nature, context and duration of the treatment, and the physical and mental effects which resulted or would result.
The Guidelines also state that claims by children must be assessed in an age-sensitive way, in view of the specific needs of children. It should also be noted that a series of acts which may not individually reach the threshold for torture, cruel or inhuman treatment or punishment, or degrading treatment or punishment may, cumulatively, reach the required threshold. This is particularly relevant to the second applicant’s circumstances. He has not claimed that he has suffered serious injury as a result of any individual act perpetrated by his father. However he has been physically assaulted on numerous occasions throughout his childhood and he has witnessed his mother and sister being subjected to violence on multiple occasions. He has been powerless to escape the violence and if returned to Tonga he will remain vulnerable to physical and emotional suffering at the hands of his father.
Having had regard to the nature and duration of the suffering intentionally inflicted by his father in the past, I find that the second applicant will face ‘cruel or inhuman treatment or punishment’ intentionally inflicted by his father if he returns to Tonga. Accordingly, I find that there are substantial grounds for believing that as a necessary and foreseeable consequence of the second applicant being removed from Australia, there is a real risk that he will suffer significant harm.
I have considered whether it would be reasonable for the second applicant to relocate to an area of the country where there would not be a real risk that he will suffer significant harm’: s 36(2B)(a). He is a vulnerable [Age] year old boy who, upon return to Tonga, would be dependent upon his father and extended family for housing and financial support. Given the importance of kinship ties and extended family co-habitation as reported in country information, I am not satisfied that the applicant could relocate away from his father who is the perpetrator of the violence.
I have also considered whether the applicant could obtain, from an authority of the country, protection such that there would not be a real risk that he will suffer significant harm’: s 36(2B)(b). In MIAC v MZYYL the Full Federal Court held that, to satisfy s 36(2B)(b), the level of protection offered by the receiving country must reduce the risk of significant harm to something less than a real one.[22]
[22] MIAC v MZYYL (2012) 207 FCR 211 at [40].
According to the Complementary Protection Guidelines, the fact that a receiving state has generally functioning laws and standard protections in place that are available to the general community is one element that may be taken into account in determining whether a person faces a real and personal risk of significant harm, but is not, without more, determinative of the assessment. An individual may still face a real risk of significant harm even where a receiving state has a functional system of state protection in place. The mere existence of those protective measures only shows availability of the measures. It does not demonstrate that the person could obtain such protection. Where claims of domestic violence are raised, consideration must be given not only to whether or not laws proscribing domestic violence are enacted in the home country, but also whether those laws will be effectively implemented so as to reduce the risk of significant harm to something less than real.
While family violence is a criminal offence in Tonga, country information indicates that very few Tongans report family violence and very few perpetrators are prosecuted for family violence offences. I give weight to [Ms A]’s evidence that she never reported her husband’s violence because it is culturally taboo in Tonga to disclose such things outside the family. I found that the second applicant’s reluctance to discuss his father’s violence is a manifestation of this cultural taboo. Given the applicant’s age and the lack of family members in Tonga who would support him taking action against his father, I am not satisfied that the legal protection available would remove the real risk of significant harm.
I do not find that the real risk is one faced by the population generally and is not faced by the applicant personally’: s 36(2B)(c). In SZSPT v MIBP the Court’s reasoning suggests that the ‘faced personally’ element of this qualification requires the individual to face a risk of differential treatment, or because of characteristics that distinguish them from the general populace.[23] Although family violence is prevalent in Tonga, the second applicant’s specific circumstances distinguish him because he is a [Age] year old male who would be dependent on the perpetrator of past violence for his livelihood.
[23] SZSPT v MIBP [2014] FCA 1245 at [11]–[15].
Having reviewed and considered all information before me, I find that there is no evidence which indicates that the second applicant has a right to enter and reside in a country other than his home country – Tonga. Therefore, I find that s.36(3) of the Act does not apply to the applicant in this case.
Having considered the applicant’s specific circumstances, I find that the applicant satisfies s 36(2)(aa) of the Migration Act.
CONCLUSIONS
For the reasons given above the Tribunal is satisfied that first applicant satisfies s 36(2)(a).
The Tribunal is not satisfied that the second applicant satisfies 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 satisfied that the second applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
DECISION
The Tribunal remits the matter for reconsideration with the following directions:
(i) that the first named applicant satisfies s 36(2)(a) of the Migration Act; and
(ii) that the second applicant satisfies s 36(2)(aa) of the Migration Act.
Catherine Wall
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.
…

Accessed 12 July 2024

[2024] AATA 3554

19 July 2024

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