2403874 (Refugee)

This matter concerned an application for a protection visa by two siblings from Tonga. The first applicant claimed she feared persecution due to an attempted rape by a distant relative, which she had reported to the police, though the charges were later dropped after an apology. She also alleged ongoing violence from her father. The second applicant, her younger brother, sought protection based on his sister's experiences and his own fear of harm. The case was before the Administrative Appeals Tribunal, with Member Catherine Wall presiding.

The Tribunal was required to determine whether the applicants met the criteria for a protection visa, specifically whether they qualified as refugees under section 36(2)(a) of the *Migration Act 1958* or, alternatively, whether Australia had protection obligations under the complementary protection criterion in section 36(2)(aa). This involved assessing the credibility of the applicants' evidence, considering the specific circumstances of their claims in light of country information regarding Tonga, and determining if they had a well-founded fear of persecution or a real risk of significant harm upon return.

Member Wall considered the evidence presented, including the applicants' testimony and a police confirmation letter. She noted the challenges in assessing evidence from minors and adolescents, referencing UN guidelines, but found the first applicant to be a competent witness whose evidence, though nervous, was consistent. The Tribunal applied the principles of refugee law and complementary protection, acknowledging that a person might qualify under either criterion. Crucially, the Tribunal considered the specific context of Tonga, including its small population, kinship networks, and the difficulties of relocation, as well as the prevalence of violence and low prosecution rates.

The Tribunal concluded that the first applicant satisfied the refugee criterion under section 36(2)(a). For the second applicant, the Tribunal found that while he did not meet the refugee criterion, Australia had protection obligations under the complementary protection criterion pursuant to section 36(2)(aa). Consequently, the Tribunal remitted the matter for reconsideration with directions that the first applicant satisfies section 36(2)(a) and the second applicant satisfies section 36(2)(aa).