2403899 (Refugee)
[2024] AATA 3256
•2 July 2024
2403899 (Refugee) [2024] AATA 3256 (2 July 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE: Mr Davor Balder
CASE NUMBER: 2403899
COUNTRY OF REFERENCE: Tonga
MEMBER:Wayne Pennell
DATE:2 July 2024
PLACE OF DECISION: Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Protection visa.
Statement made on 02 July 2024 at 12:58pm
CATCHWORDS
REFUGEE – protection visa – Tonga – fear of harm from local criminal group – multiple attacks and robberies and police inaction – vague claims – details of attacks provided for first time at hearing, with no claims of physical harm arising – multiple visas, entries and departures – working and earning money in Australia – application made eight months after last arrival, shortly before working visa due to expire – country information – effective law enforcement available – decision under review affirmedLEGISLATION
Migration Act 1958 (Cth), ss 5AAA, 5H(1)(a), 5J(1)(a), 36(2)(a), (aa), (2A), 65, 423A
Migration Regulations 1994 (Cth), Schedule 2CASES
ABT16 v MHA [2019] FCA 836
Chan v MIEA (1989) 169 CLR 379
Kavan v MIMA [2000] FCA 370
MIAC v SZQRB [2013] FCAFC 33
MIEA v Guo Wei Rong (1997) 191 CLR 559
Re Prasad v MIEA (1985) 6 FCR 155
Selvadurai v MIEA (1994) ALD 346
Subramaniam v MIMA (1998) VG310 of 1997
Zhang Su Rong v RRT [1997] FCA 423Any 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 a review of a decision made by a delegate of the Minister for Home Affairs (‘the delegate’) to refuse to grant the applicant a Protection visa under section 65 of the Migration Act 1958 (Cth) (‘the Act’).[1]
[1]The delegate’s decision of 8 February 2024.
The applicant, who is a citizen of Tonga, applied for a Protection visa.[2] The delegate was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to Tonga, there was a real risk he would suffer significant harm, and his application was refused on the basis that he was not a refugee as defined by the Act[3] and therefore he was not a person in respect of whom Australia has protection obligations.[4]
[2]The Department of Home Affairs received the applicant’s application on 24 November 2023.
[3]Migration Act 1958 (Cth), s 5H.
[4]Migration Act 1958 (Cth), s 36(2)(a), s 36(2)(aa).
The applicant filed an application (‘review application’) with the Tribunal to review the delegate’s decision.[5] He was represented throughout the review process by David Balder, a solicitor from Balder Phan Lawyers, Melbourne.
[5]The Tribunal received the applicant’s review application on 3 March 2024.
On 4 April 2024, the Tribunal dispatched to the email address of the applicant’s solicitor a letter advising that the Tribunal had considered all the material before it but was unable to make a favourable decision on that information alone. Within that letter was an invitation for the applicant to attend a hearing in regard to his review application. That hearing was scheduled for 29 May 2024 and he appeared at the scheduled time, place and date of the hearing. He was assisted throughout the hearing by an interpreter in the Tongan and English languages.
CRITERIA FOR A PROTECTION VISA
The measures for a Protection visa are set out in the Act[6] and Schedule 2 to the Migration Regulations1994 (Cth). An applicant for the visa must meet one of the alternative criteria as provided in the Act.[7] That is, the applicant 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.
[6]Migration Act 1958 (Cth), s 36.
[7]Migration Act1958 (Cth), s 36(2)(a); s 36(2)(aa); s 36(2)(b) or s 36(2)(c).
The Act 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, or the Tribunal at a review hearing, is satisfied Australia has protection obligations because the person is a refugee.[8]
[8]Migration Act1958 (Cth), s 36(2)(a).
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.[9] 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.[10]
[9]Migration Act1958 (Cth), s 5H(1)(a).
[10]Migration Act1958 (Cth), s 5H(1)(b).
The Act also provides that 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.[11] 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 the Act, which are extracted in the attachment to this decision.[12]
[11]Migration Act 1958 (Cth), s 5J(1).
[12]Migration Act 1958 (Cth), s 5J(2) – s 5J(6) and s 5K – s 5LA.
If a person is found not to meet the refugee criterion in the Act,[13] that person may nevertheless meet the criteria for the grant of the visa if they are 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 they will suffer significant harm (‘the complementary protection criterion’).[14] 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 expressly provided in the Act, which are extracted in the attachment to this decision.[15]
[13]Migration Act 1958 (Cth), s 36(2)(a).
[14]Migration Act 1958 (Cth), s 36(2)(aa).
[15]Migration Act 1958 (Cth), s 36(2A) and s 36(2B).
The Act makes provision for and clearly defines that a non-citizen will suffer significant harm if they will be arbitrarily deprived of their life; or the death penalty will be carried out on that person; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.[16]
[16]Migration Act 1958 (Cth), s 36(2A). Torture, cruel and inhuman treatment or punishment and degrading treatment and punishment are further defined in the Migration Act 1958 (Cth), s 5(1).
Notwithstanding that, the Act goes on to provide certain circumstances where it is taken not to be a real risk that they will suffer significant harm in a country if the Minister is satisfied that it would be reasonable for them to relocate to an area of the country where there would not be a real risk that they will suffer significant harm; or they could obtain, from an authority of the country, protection such that there would not be a real risk that they will suffer significant harm; or the real risk is one faced by the population of the country generally and is not faced by them personally.[17]
[17]Migration Act 1958 (Cth), s 36(2B).
COUNTRY OF REFERENCE AND APPLICANT’S IDENTITY
The applicant claims to be a citizen of Tonga and provided a copy of his passport to the Department to authenticate this claim. The Tribunal accepts his identity and based on the evidence he provided, and in the absence of any other evidence to the contrary, the Tribunal finds that Tonga is his country of nationality and his receiving country for the purposes of the refugee and complementary protection assessments.[18]
[18]Migration Act 1958 (Cth), s 5H, s 36(2)(a) and s 36(2)(aa).
Based on the evidence, the Tribunal is satisfied the applicant does not have a right to enter and reside in any other country. Therefore, the Tribunal finds that he is not excluded from Australia’s protection obligations.[19]
[19]Migration Act 1958 (Cth), s 36(3).
MANDATORY CONSIDERATIONS
In accordance with Ministerial Direction No.84 made under the Act,[20] the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and the country information assessments prepared by the Department of Foreign Affairs and Trade (‘DFAT’) expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
[20]Migration Act 1958 (Cth), s 499.
MATTERS LEADING UP TO THE REVIEW HEARING
The applicant’s migration records held within the Department’s file shows that between 2012 and his final trip to Australia on 7 March 2023, he had been granted 10 visas and had travelled to Australia on seven occasions. The details of those visas and the trips are:
15 August 2012
Granted (offshore) a Special Program (subclass 416) visa valid for seven months after the applicant’s arrival in Australia.
[August] 2012
Arrived in Australia for the first time.
[March] 2013
Departed Australia.
18 July 2013
Granted (offshore) a Special Program (subclass 416) visa valid for seven months after the applicant’s arrival in Australia.
[August] 2013
Arrived in Australia for the second time.
[March] 2014
Departed Australia.
19 December 2016
Granted (offshore) a Temporary Work (International Relations) (subclass 403) visa valid for six months.
[December] 2016
Arrived in Australia for the third time.
[June] 2017
Departed Australia.
1 March 2018
Granted (offshore) a Temporary Work (International Relations) (subclass 403) visa which was valid for approximately six months.
[March] 2018
Arrived in Australia for the fourth time.
[September] 2018
Departed Australia.
27 February 2019
Granted (offshore) a Temporary Work (International Relations) (subclass 403) visa which was valid for approximately eight months.
[March] 2019
Arrived in Australia for the fifth time.
[September] 2019
Departed Australia.
5 February 2020
Granted (offshore) a Temporary Work (International Relations) (subclass 403) visa which was valid for approximately seven months.
[February] 2020
Arrived in Australia for the sixth time.
21 September 2020
Granted (onshore) a Bridging A (subclass 010) visa which was valid until 31 October 2020.
31 October 2020
Granted (onshore) a Temporary Activity (subclass 408) visa which was valid until 21 September 2021.
17 September 2021
Granted (onshore) a Bridging A (subclass 010) visa valid until 22 September 2022.
[September] 2022
Departed Australia.
21 February 2023
Granted (offshore) a Temporary Work (International Relations) (subclass 403) visa which was valid for approximately nine months after the applicant’s arrival.
[March] 2023
Arrived in Australia for the seventh and final time.
24 November 2023
Lodged his application for a Protection visa.
28 November 2023
Granted (onshore) a Bridging A (subclass 010) visa.
That chronology shows that between 2012 and the applicant’s seventh and final trip to Australia [in] March 2023, there were seven occasions when visas were granted to him when he was offshore, and a further three visas were granted to him when he was onshore. He subsequently used those visas for work-related purposes when he was in Australia. It was not until approximately eight months after his final arrival in Australia that he lodged his application for a Protection visa. That delay is discussed later in these Reasons.
When asked at the hearing about his trips to and from Australia, he agreed that he had travelled to Australia on all of those occasions as outlined above. He went on to explain that he only applied for one of those visas, which was back in 2012. He could not recall the specifics of the other visas that were granted to him over that time because the company he worked for made those applications on his behalf so he could come to Australia. When asked what the purpose was for him travelling to Australia on those occasions, he said he came here so that he could work and earn money.
Within his application for a Protection visa, the applicant explained that when he lived in Tonga, he was attacked a few times by a local criminal group who were seeking money from him. He claimed that he resisted and fought the group. He said that he knows the faces of those people, but not the individual identities of each member of the group. Because he is now known to that group, and because he had resisted them, he fears that if he encounters them again they will cause him serious harm, including being beaten, tortured or killed. He claimed that he contacted the local police and a police report was made, however the police do not treat these types of incidents seriously. He did not get a copy of the police report. In respect to relocating to another part of Tonga for his own safety, he did not have the funds to try to relocate within Tonga, and because Tonga is a small country, he could be found no matter where he moved to.
On 28 November 2023, the Department wrote to the applicant and acknowledged receiving his application. In that letter, he was invited to an appointment with the Department on 13 December 2023. The purpose of that appointment was for him to provide his personal identifying particulars. The Department’s letter also reminded him that as his application form stipulated, all claims, supporting documentation and evidence should have been provided when he lodged his application, however he may bring to the scheduled appointment any additional information he would like considered by the Department. Although he attended the appointment, he did not provide any additional information, evidence or material to the Department.
After having assessed his claims, the delegate made a decision on 8 February 2024 to refuse his application and he was provided with a copy of the delegate’s Decision Record. Subsequently, on 3 March 2024 he lodged his review application with the Tribunal, and in doing so, he provided the Tribunal with a copy of the delegate’s Decision Record.
In acknowledging the receipt of the applicant’s review application, the Tribunal sent him a letter on 5 March 2024 advising that if he wished to provide any material or written arguments for the Tribunal’s consideration, then he should do so as soon as possible.
As it has already been described in these Reasons, on 4 April 2024, the Tribunal sent an email to the applicant and enclosed an invitation for him to attend a hearing scheduled for 29 May 2024. He was asked to complete the ‘Response to hearing invitation’ template and return that completed template to the Tribunal within seven days. On 11 April 2024, the completed ‘Response to hearing invitation’ template was returned to the Tribunal where he indicated that he would be personally appearing at the review hearing.
On 21 May 2024, the applicant provided a two page statement outlining his explanations why he required protection in Australia.
REVIEW HEARING
Background
The applicant confirmed with the Tribunal that he is from Tonga. In regard to his family, he explained that both of his parents are deceased, however he has [brothers and sisters] who all remain living in Tonga.
He is married, and his wife also lives in Tonga. He married his wife in [Year] and they have [children] ranging between the ages of [Age] and [Age]. His wife and his children all live in the same house in [Location 1], which is not far from Nuku’alofa, which is the capital of Tonga. The house where his wife and children live is owned by his wife’s brother. She does not pay any rent, but because both his parents and his wife’s parents have passed away, his brother-in-law (his wife’s brother) has always threatened to evict his wife and children out of the house.
He was educated in Tonga. He started school at the age of six and finished school when he was 14. This was around the time that his father passed away. In regard to his employment, when he left school, he tried to get employment but could not find a job. It was not until he was aged 18 that he found employment in [work sector 1] for about seven or eight years. He later found employment in [work sector 2]. Although he said that he ‘farmed’, meaning that he grew things to eat, he meant that this was to grow his own vegetables for his family on the block of land where his wife and children currently live. He was still working in [work sector 2] prior to when he came to Australia in 2012.
Applicant’s claims for protection
Described earlier in these Reasons is a précis of the applicant’s claims in respect to his well-founded fear of returning to Tonga. For completeness, those claims as they are displayed with his application are replicated below:
Provide reasons why this applicant left that country or those countries: I was exposed to physical abuse by a group of local thugs. They attacked me because they wanted some money from me. This local group of young men is unemployed. I resisted and I fought them. Now I am targeted. Did this applicant experience harm in that country or those countries? Yes Give details including:
• the type of harm this applicant experienced
• the person/people responsible for the harm
• why they harmed this applicant.
I am being targeted by a local criminal group who targets people for money. I know their faces but I don't know their names. They attacked me a few times because I offered resistance and I fought them. Not they know my face and I will face serious harm or death if they see me again. Did this applicant seek help within the country or those countries after the harm? Yes Give details including:
• the name of the person/organisation/authorities this applicant asked for help
• what help they provided if they helped
I contacted local police. Police do not treat these incidents seriously and just take a report. I did not get a copy of the report - a record mas made by the police. Did this applicant move, or try to move, to another part of that country or those countries to seek safety? No Give details for why this applicant did not try to move to another part of the country or those countries. I do not have money to move to another part of the country. Even if I could move, Tonga is a small country and I could be found anywhere. Explain what the applicant thinks will happen to them if they return to that country or those countries: I will face serious harm or death if they see me again. Does this applicant think they will be harmed or mistreated if they return to that country or countries? Yes Give details including:
• the type of harm or mistreatment this applicant is likely to experience
• the person/people who would be responsible for the harm or mistreatment• why they would harm or mistreat this applicant.
I will be beaten, tortured and killed if I return back home. Local group know me and they know my face because I resisted and fought them.
I know their faces but I don't know their names. They attacked me a few times because I offered resistance and I fought them. Not they know my face and I will face serious harm or death if they see me again.
Does this applicant think the authorities of that country or those countries can and will protect this applicant if they go back? No Give details about why this applicant thinks the authorities could not, or would not, protect them. Police in Tonga do not take these crimes seriously and just take report. Economic uncertainly in Tonga created a lot of these gangs as of late and they target people for money. Does this applicant think they would be able to relocate within that country or those countries to an area where they would not be harmed? No Give details for why this applicant is unable to relocate. I do not have money to move to another part of the country. Even if I could move, Tonga is a small country and I could be found anywhere. Moving is not practical and impossible for me in Tonga.
Pre-hearing evidence
Leading up to the scheduled hearing, on 21 May 2024 the applicant provided to the Tribunal a statement and a number of attachments. In that statement he said:
1. My name is [the applicant], and I am seeking protection in Australia due to the threat of violence from a local criminal group in my home country, Tonga. I have been subjected to multiple attacks and face a serious risk of harm or death if I return.
2. I have been exposed to physical abuse by a group of local criminals in my area. These individuals are unemployed young men who target people for money. During one of the incidents, they attacked me, demanding money. I resisted and fought back, which led to them targeting me even more.
3. Since then, I have been repeatedly attacked by this group because I offered resistance. Although I know their faces, I do not know their names. The fact that I fought back has made me a marked target. They now recognize me and will undoubtedly cause me serious harm or even kill me if they see me again.
4. I have reported these incidents to the local police. Unfortunately, the police do not take these crimes seriously and merely take a report without any follow-up action. I did not receive a copy of the report, but I know a record was made. Despite my attempts to seek help, no effective measures have been taken to ensure my safety.
5. The police's lack of serious response has left me vulnerable to ongoing attacks. Given the economic uncertainty in Tonga, many such gangs have formed recently, preying on people for money.
6. I am in a dire situation where returning to Tonga would mean facing severe harm or death. The local criminal group knows my face and has already attacked me several times because I resisted them. They will not hesitate to harm or kill me if they see me again.
7. Moving to another part of Tonga is not a viable option for me. I do not have the financial resources to relocate, and even if I could, Tonga is a small country. It would be easy for these criminals to find me anywhere within the country. Therefore, relocating within Tonga is both impractical and impossible.
8. I am genuinely afraid for my life if I am forced to return to Tonga. The local thugs who attacked me are persistent and will continue to target me due to the resistance I showed. The police's inability to provide protection and the impracticality of relocating within Tonga leave me with no safe alternative but to seek protection in Australia.
9. I humbly request the Administrative Appeals Tribunal to consider my situation with empathy and grant me the protection I desperately need. Your intervention is my only hope for a safe and secure future.
When carefully assessing the contents of the applicant’s statement, although he refers to being repeatedly attacked by a group of local criminals who lived in his area in Tonga, there is not any indication of where exactly in Tonga the incident or those incidents took place, and nor did he stipulate when any of those events transpired. At first blush, his statement is vague in regard to the specific information just referred to in these Reasons.
Attached to his statement were four documents. There is no reference within the body of his statement about those documents, and nor does he provide any explanation in his statement as to how the material within those documents is relevant to the claims he relies upon. Those documents are:
(a)A screenshot with the heading ‘Drugs’. The information in this document speaks to drugs in Tonga.[21]
(b)A screenshot with the heading ‘Criminal Actors’. The information in this document speaks to criminal syndicates operating in Tonga.[22]
(c)An online news article published by the online news service Matangi Tonga titled ‘Tonga Police warn public of crime spiking 2023’.[23] This article speaks to the spiking of a crime rate in Tonga for offences such as housebreaking, thefts, fake online car dealers and vehicle thefts. Specifically in relation to the applicant’s claim, there does not appear to be any reference in this article to any vicious or unlawful personal attacks upon individual citizens by criminal gangs.
(d)An online article published by Policy Forum. The article discusses the drug problem associated with experiences by the citizens of Tonga.
[21]
[22]
[23]Matangi Tonga online, 30 August 2023, accessed 22 May 2024.
Applicant’s oral evidence
The applicant’s representative advised the Tribunal that the applicant does not rely upon any consideration with respect to section 5J(1)(a) and section 36(2)(a) of the Act. That is, he does not claim that he has a well-founded fear of persecution for reasons of his race, his religion, his nationality, his membership of a particular social group or his political opinion. But rather, he relies upon the alternative criterion of complementary protection under section 36(2)(aa) as being more specifically relevant to his claims.
When asked at the hearing if he still relied upon the contents of the statement he provided, and if there was anything else that he wished to tell the Tribunal, he said that he does not own any land in Tonga, and if he had to return he had no land to go back to.
In explaining in greater detail the timings and the number of incidents which he claims to have transpired, he said that he was targeted three times by a criminal group because they (the group) knew that he had been to Australia and they were out to get money from him. He did not know the names of the people in the group and he said that he complained to the police on numerous occasions, but could not remember specifically when he made those complaints. Although he initially said he was targeted three times by the group, as his evidence developed during the hearing, he referred to more than three incidents.
He described that the very first incident happened in 2014 at [Location 1]. He remembers that one evening he was walking along a road when four people in a car stopped him. They asked him for his name and then asked him for money because they wanted to buy some alcohol. He told them that he did not have any money so they started to verbally abuse him. He said that although he knew these people (he knew their faces), he did not know their names as they were not from [Location 1]. He was not harmed during this encounter, and nor was he threatened with any violence. At its highest, what he claims occurred was these people verbally abused him because he would not give them any money to buy alcohol. He did not report this matter to the police.
The applicant said that the second concerning incident happened in 2016. He described it happening late in the afternoon when he was walking from his home along a road towards Nuku’alofa. A vehicle approached him which contained a group of five men. They got out of the car and approached him. He laughed at them and then walked off. He then heard someone in the group say, ‘it is time he got a hiding’. Concerned for his safety, he ran away and was chased by two members of the group. He escaped by running into the bushes and jumped a fence, but injured the little finger on his left hand in the process. He did not seek any medical treatment from a hospital or medical centre, instead he wrapped the injury himself. He went to the police in Nuku’alofa and made a formal complaint about both the first and second incidents. When he made his complaint, the police interviewed him and they recorded what he told them. He was assured that the police would ‘make a move’ on his complaint, however he told the Tribunal that since making that complaint, he has not received any updates from the police about what happened to his complaint. He went on to explain to the Tribunal that he did not follow up with the police about his complaint, but when he later complained to the police about the third incident, he asked about his earlier complaint.
The third incident happened also late one afternoon in 2016, and it was about three weeks after the second incident. It took place near or around the same area as the second incident. He was driving his father-in-law’s vehicle back to his town from the hospital. As he was leaving the hospital, he saw the same vehicle the men were in on the second occasion. As he drove home, that same vehicle came up behind him and then overtook him. He recognised a few people in the car as being in the group that stopped him on the second occasion. This other vehicle then clipped the front of his vehicle as it passed and caused damage to the vehicle he was driving. The other vehicle did not stop and kept driving. He went to the police and made a complaint about what happened. He claimed that he also asked the police about his earlier complaint, but was told they (the police) were still looking into his complaint.
The applicant went on to tell the Tribunal that more recently in 2019 (the fourth incident), he encountered two of the group. He described that he was not harmed by those people but rather all they did was verbally threaten him and tell him that they wanted to beat him up until he was not standing any more. He does not claim that he was harmed during this incident.
He also described that in 2023, which was not long before he came to Australia (the fifth incident), he was in [Location 2] when he encountered four men who were in a motor vehicle. He claimed they said to him ‘remember what we told you that we would do to you’. He could not make out the faces of three of the people in the vehicle, but he recognised the driver as being from the earlier incidents. He made no formal complaint to the police about that incident.
The Tribunal has carefully considered the applicant’s evidence in respect to the timing of when he claimed those incidents took place. Already outlined in these Reasons is the applicant’s migration history which shows that notwithstanding that he claims that he was threatened and had a well-founded fear of harm from the criminal group on a number of occasions, he continued to travel backwards and forwards from Tonga to Australia for work after those incidents took place.
COUNTRY INFORMATION
Applicant’s country information
In paragraph 30(a)–(d) of these Reasons, a description was provided of the country information relied upon by the applicant. The Tribunal’s observations is that much of that information relates to drugs in Tonga and it refers to the country being predominantly a transit point for cocaine with some domestic consumption facilitated by corruption. The country information goes on to explain that the cannabis trade in Tonga is primarily local, with production taking place on remote islands with some importation of that drug from the United States of America. It also outlines that the synthetic drug trade is the largest criminal market in Tonga, along with it being a transit point for transferring methamphetamines to New Zealand and Australia. The other piece of country information relating to drugs describes that enforcement of the laws in relation to drugs in Tonga is weak and under-resourced and is not helped by allegations of corrupt public officials working with criminals to import and distribute illicit drugs in that country.
That country information in relation to what has been outlined above has been carefully considered and weighed against the claims made by the applicant in his application for a Protection visa, his statement and his oral evidence at the hearing. At no point does the applicant make any claim of having a well-founded fear of returning to Tonga because of any alleged illicit drug trade within Tonga, and nor does he claim that illicit drugs are in any way connected to those examples he provided in his oral evidence as to why he has a well-founded fear of returning to Tonga. Therefore in respect to the country information provided by him relating to drugs in Tonga, the Tribunal places no weight upon that information when reaching a determination in regard to this application.
Turning to the other country information he provided, it outlines that although there is no evidence of mafia style organised crime groups in Tonga, there are at least five criminal syndicates operating in the drug and arms trafficking markets. Customs officials have reported feeling powerless to address corruption at the border because of the involvement of extended family members and criminals using intimidation tactics. The country information also goes on to suggest that during 2023, crime had spiked in Tonga in regard to property-related offences such as housebreaking, theft and fraud. The information also canvassed fake online car dealers as well as vehicle thefts. No reference was made at all in regard to any examples of an increase in crime in regard to personal violence. When careful consideration is given in respect to this country information, the Tribunal is satisfied that the information does not relate to the applicant’s claims and is not inclined to give that information any weight in regard to the determination of this application.
Subject to the provisions of section 424AA of the Act, the Tribunal provided clear particulars of country information to the applicant which the Tribunal considered would be the reason, or part of the reason, for affirming the decision under review. In providing that country information to him, the Tribunal made sure, as far as it was reasonably practicable, that he understood why the information was relevant to the review, and that he understood the consequences of the Tribunal relying upon that information in affirming the delegate’s decision. After that information was outlined to him, he was provided with an opportunity to comment on and respond to that information and was appropriately advised that if he required time to consider his response, then the Tribunal would adjourn the hearing for a reasonable time so as to allow him time to consider his response or comment.
State protection – Tongan Constitution
The Tongan Constitution is separated into three parts. The first part (Part one) is a declaration of rights of the Tongan people. Part two addresses the form of government and part three provides laws for land ownership, succession, and sale. Clause 4 of the Tongan Constitution provides that there shall be but one law in Tonga for chiefs and commoners and for non-Tongans and Tongans. No laws shall be enacted for one class and not for another class but the law shall be the same for all the people of this land. Effectively, what this provides is that the same law applies to all classes of Tongans.
State protection – Tonga Police Act 2010 (the Police Act)
Section 8 of the Police Act provides for the functions of the Tongan police. It outlines that members of the Tongan Police Force shall have a number of functions, including the function to maintain law and order; to preserve the peace; to protect life and property; to prevent and detect crime; and to uphold the laws of Tonga. There is nothing within the legislation that reduces the responsibility of the members of the community for the preservation of peace and good order; and the prevention and detection of breaches of the law.
There are a number of guiding principles within section 9 of the Police Act for police officers in the performance of their functions. Those principles provide that the police shall perform their functions in a professional manner and with integrity and respect for the law and human rights. The police are also required to work together with the community to the extent that is compatible with the efficient and proper performance of the functions of the Tongan Police Force, and the police shall, if requested to do so and to the extent that is compatible with the efficient and proper performance of the functions of the Tongan Police Force, assist other government agencies to uphold and enforce the laws of the Kingdom. In performing their functions, members of the Tongan Police Force shall, to the extent reasonably practicable and appropriate, adopt a community policing approach by responding to problems at a local village level and using district and national support only when required.
The Police Act provides that a police officer may exercise any power conferred on a police officer by the Police Act or any other Act,[24] and in exercising those powers, a police officer (with or without a warrant), may arrest a person whom the police officer suspects on reasonable grounds is committing an offence; is about to commit an offence; or has committed an offence. In effecting an arrest, a police officer may (without warrant) enter any property, vessel or vehicle to make an arrest.[25] The Police Act goes on to provide that a person who is arrested shall be brought before a magistrate, or if there is no magistrate, then alternatively the officer in charge of a police station, to be charged as soon as practicable after being arrested (no later than 24 hours after arrest).[26] The legislation goes on to provide further powers for the police to take the identifying particulars of a person in lawful custody,[27] as well as powers to search a person without arrest,[28] and the search of places, vehicles, vessels and aircraft without warrant.[29]
[24]Tonga Police Act, s 96, wwwex.ilo.org/dyn/natlex2/natlex2/files/download/89617/TON89617.pdf, accessed 27 May 2024.
[25]Tonga Police Act, ss 115 and 117, wwwex.ilo.org/dyn/natlex2/natlex2/files/download/89617/TON89617.pdf, accessed 27 May 2024.
[26]Tonga Police Act, s 116, wwwex.ilo.org/dyn/natlex2/natlex2/files/download/89617/TON89617.pdf, accessed 27 May 2024.
[27]Tonga Police Act, s 118, wwwex.ilo.org/dyn/natlex2/natlex2/files/download/89617/TON89617.pdf, accessed 27 May 2024.
[28]Tonga Police Act, s 122, wwwex.ilo.org/dyn/natlex2/natlex2/files/download/89617/TON89617.pdf, accessed 27 May 2024.
[29]Tonga Police Act, s 123, wwwex.ilo.org/dyn/natlex2/natlex2/files/download/89617/TON89617.pdf, accessed 27 May 2024.
The Police Act also provides police with powers to direct a person to move on from a particular place. The move on direction can be given on reasonable grounds if a police officer thinks the behaviour or the presence of a person is causing anxiety to some other person in a public place, or is interfering with trade or business in a public place, or is disrupting the peaceful and orderly conduct of any event at a public place.[30]
[30]Tonga Police Act, s 125(1), wwwex.ilo.org/dyn/natlex2/natlex2/files/download/89617/TON89617.pdf, accessed 27 May 2024.
State protection – Tonga Criminal Offences Act
Part IX of the Tonga Criminal Offences Act makes provision for a wide range of offences committed against a person of another, including homicide and manslaughter, bodily harm, common assault and grievous bodily harm. Provision is also made within the legislation in respect to offences committed against the property of another, including theft, robbery, assault with intent to commit a robbery, extortion and demanding property with menace. The punishment provided within the legislation includes significant and substantial terms of imprisonment which can be imposed upon the perpetrators of those offences.
The following are examples of the police displaying their ability to investigate criminal offences, particularly those of violence against the person, and to prosecute those perpetrators involved in such crimes. For example:
(a)On 22 November 2023 it was reported that Tongan police arrested a 41-year-old man who was accused of assault and multiple robberies at different locations across Nuku’alofa.[31]
(b)In November 2021, a 49-year-old man was sentenced to two and a half years imprisonment for serious housebreaking and robbery at a store in Ma’ufanga, where he punched the complainant several times, before stealing goods.
(c)In October 2021, after a trial at the Nuku’alofa Supreme Court, a 48-year-old man was found guilty of serious housebreaking and robbery at a store in Ma’ufanga, where he punched the complainant several times, before stealing goods.[32]
(d)In January 2021, it was reported that the Tongan police had made an arrest in relation to four armed robberies at Chinese shops in Houmakelikao, Kapeta, Tofoa and Ma’ufanga that began Saturday 9 January 2021. The Tongan police said they were called to respond to incidents involving two men wearing masks who entered the shops armed with a machete and a piece of metal.[33]
[31]Matangi Tonga Online, 22 November 2023, accessed 27 May 2024.
[32]Matangi Tonga Online, 18 October 2021, accessed 27 May 2024.
[33]Matangi Tonga Online, 12 January 2021, accessed 27 May 2024.
Certain country information available to the Tribunal through the Smarttraveler.gov.au website suggests that crime in Tonga is at the same level as expected in Australia and includes robbery, assault, theft and break-ins. The advice was to keep doors, windows and gates locked and to not go out alone at night. The advice went on to say that in regard to civil unrest, this is rare.[34]
[34]Smartraveller.gov.au, accessed 27 May 2024.
Other certain information available to the Tribunal outlines that since 2006, the Australian Federal police have delivered police assistance in Tonga. The Tonga-Australia policing partnership capability building program which is currently in place aims to enhance national security, improve frontline responses to survivors of family violence, and strengthens the capacity and capability for ethical effective policing. The program supports the Tongan police to achieve its goals and becoming a trusted and respected policing service that works in partnership to reduce crime and build safe and secure communities.
In 2021, a memorandum of understanding (MOU) between the Australian Federal Police (AFP) and the Tongan Police Force was signed. This replaced the trilateral Tonga Police Development Program (TPDP) between Tonga, New Zealand and Australia that ran from 2008 to June 2020.[35] The AFP website described the TPDP as:
a joint commitment with Australia, New Zealand and Tonga. TPDP supports the Tongan Police to achieve the goal of ‘a trusted and respected policing service that works in partnership to reduce crime and build safe and secure communities’.
The contribution of the AFP towards the TPDP was in ‘helping people overcome poverty by promoting safety and security through improved operational effectiveness of Pacific police.[36]
[35]Tonga Police signs bilateral agreement with Australian Federal Police, Fangongo, 12 February 2021, accessed 27 May 2024.
[36]AFP across the world, Australian Federal Police, 12 July 2021, page 9, accessed 27 May 2024.
When careful consideration is applied to the country information provided by the Tribunal to the applicant, the Tribunal is satisfied (and so finds) that the country information relating to the Tongan Constitution, the Police Act, the Tonga Criminal Offences Act and MOU between the AFP and the Tongan Police Force, the Tribunal is satisfied (and so finds) that the laws of Tonga appropriately and sufficiently address crime-related offences such as threats of harm to persons within Tonga, as well as offences which cause injury to another person. Causing injury to another person is considered to be a crime within Tonga and is punishable by the State.
Tonga has a police force that is largely professional, impartial and has some ability to protect individuals from harm. Although the Tribunal accepts that the applicant claims that the police are not reliably effective in combating crime, the Tribunal places greater weight on the country information detailing the abilities of the state to protect its citizens. When careful consideration is given to that country information, the Tribunal is satisfied (and so finds) that the applicant would be able to avail himself to effective state protection upon his return to Tonga should he need to do so.
The Tribunal is satisfied that the country information cited above indicates that the criminal laws relating to Tonga provide for significant remedies for victims, and the Tongan police provide a reliable mechanism for individuals seeking to report a crime. The country information also indicates that Tonga’s legal system is impartial and relatively accessible for those who seek to access it.
During the hearing, the applicant was provided with an opportunity to respond to and/or comment on the country information. The hearing was adjourned for a brief period to allow him time to confer with his solicitor. When the hearing resumed, his response to the country information was that in his experience, the ways the laws are enforced in Australia are better than they are enforced in Tonga. He claimed that there was no corruption in Australia, but in Tonga he has seen police being paid off not to investigate complaints and he had witnessed police officers in Tonga being released from their duty for corrupt conduct in not enforcing their duty and the law.
In carefully assessing his response, the Tribunal places greater weight on the country information as opposed to his uncorroborated evidence and response so far as any determination being applied to his claims for protection.
REFUGEE FINDINGS, DISCUSSION AND CONCLUSIONS
The very nature of a review hearing is that the hearing is conducted from the beginning (anew) and the Tribunal is to review the material, information and evidence made available to it, and give a fresh consideration to all of that material, information and evidence and to make its own assessment and determination as to whether the applicant meets the criteria for the granting of a Protection visa. The Act provides that when the Tribunal is considering this matter, although it is not bound by technicalities, legal forms or rules of evidence, it must act according to substantial justice and the merits of the applicant’s case.[37]
[37]Migration Act 1958 (Cth), s 420.
By its very character, a review hearing is also inquisitorial in nature, and although the Tribunal can seek out evidence it considers is required in order to reach a determination in this matter, the Tribunal is under no obligation to seek out evidence to support the applicant’s claims, even though it is entitled to do so.[38]
[38]Migration Act 1958 (Cth), s 5AAA; ABT16 v Minister for Home Affairs [2019] FCA 836, [28].
There is no requirement placed upon the Tribunal to make the applicant’s case for him. It is his responsibility to specify all particulars of his claims to be a person in respect of whom Australia has protection obligations and to provide sufficient evidence to establish his claims. There is no obligation or responsibility on the Tribunal’s part to specify, or assist in specifying any particulars of his claims, or to establish or assist in establishing his claims,[39] nor is it required to accept uncritically any of the allegations he makes.[40]
[39]Migration Act 1958 (Cth), s 5AAA.
[40]Minister for Immigration and Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559, 596; Re Bineshri Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155, 169–170.
The mere fact that the applicant claims he has a fear of persecution for a particular reason does not establish either the genuineness of his asserted fear or that it is well-founded or that it is for the reason claimed. Similarly, because he claims that he will face a real risk of significant harm does not establish that such a risk exists, or that the harm feared amounts to significant harm. It remains for the applicant to satisfy the Tribunal that all the statutory elements are made out.
The definition of a refugee as provided within section 5H(1) of the Act explains that a refugee is a person who is outside their country of nationality or former habitual residence and is unable or unwilling to avail themselves of the protection of their country of nationality or to return to their country of former habitual residence due to a well-founded fear of persecution. The term ‘well-founded fear of persecution’ is defined in section 5J of the Act, and includes a requirement in section 5J(1)(a) of the Act that the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
The issue in this matter is whether there are substantial grounds for believing that, as a foreseeable consequence of the applicant being removed to Tonga, there exists a real risk that he will suffer significant harm or there is a real chance he would suffer serious harm on the grounds of him being threatened a few times by what he described as a local criminal group who were seeking money from him. He further claimed that he resisted and fought the group. He knows the faces of the individual members of the group, but not their individual identities. He is now known to that group, and because he had resisted them, they will cause him serious harm, including being beaten, tortured or killed, if he encounters the group again.
He further claimed that he contacted the local police and a police report was made. The police do not treat these incidents seriously and that the applicant did not get a copy of the police report. In respect to relocating to another part of Tonga for his own safety, he claimed that he did not have the funds to try to relocate within Tonga, and because Tonga is a small country and he could be found no matter where he moved to.
After carefully assessing and considering the applicant’s oral evidence at the hearing, along with the claims he expressed in his application and his statement, the Tribunal accepts that he was confronted by the people as he claimed, and the Tribunal also accepts his claim that these people were aggressive towards him and made threats.
However, notwithstanding those confrontations, it is not the applicant’s claim, and nor does the evidence suggest that what took place falls within the ambit of the ‘persecution’ as defined in section 5J(1)(a) of the Act. That is, he does not have a well-founded fear of being persecuted in Tonga because of his race, religion, nationality, membership of a particular social group or political opinion.
Therefore, after carefully considering all of the material available, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution as he does not fear that if he returns to Tonga he will be persecuted for reasons prescribed in section 5J(1)(a) of the Act. The Tribunal is not satisfied (and so finds) that he is a refugee as defined in section 5H(1) of the Act and accordingly, he is not a person in respect of whom Australia has protection obligations as provided for in section 36(2)(a) of the Act.
COMPLEMENTARY PROTECTION CONSIDERATIONS
Having already concluded that the applicant does not meet the refugee criterion as provided by the Act,[41] the Tribunal has given careful consideration to the alternative criterion[42] and undertaken an assessment as to whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed to Tonga, there is a real risk that he will suffer significant harm as it is defined in the Act.[43]
[41]Migration Act 1958 (Cth), s 36(2)(a).
[42]Migration Act 1958 (Cth), s 36(2)(aa).
[43]Migration Act 1958 (Cth), s 36(2A).
Significant harm is defined within section 36(2A) of the Act as the person will be arbitrarily deprived of his or her life; or the death penalty will be carried out on them; or they will be subjected to torture; or they will be subjected to cruel or inhuman treatment or punishment; or they will be subjected to degrading treatment or punishment.
The Tribunal’s observations of the claims made by the applicant in his application were that he left Tonga because he was targeted and exposed to physical abuse by a group of local thugs. They attacked him because they wanted money from him, however he offered resistance and fought back. Because he fought back and resisted, he now faces serious harm or even death if he returned to Tonga. He went on to claim that he was attacked a few times, and he experienced harm in Tonga, however he did not expressly provide any information in his application about how that occurred or what the harm was. Nor did he provide in his application any specific details of any of the encounters with members of this group.
At a subsequent time, the applicant provided to the Tribunal a statement in which he said that he had been subjected to multiple attacks and faced serious risk of harm or death if he returned to Tonga. Similar to his application, he claimed that he had been exposed to physical abuse by a group of local criminals, and during one incident they attacked him and demanded money. Because he resisted and fought back, he has been repeatedly targeted by the group. The Tribunal observes, and is satisfied, that similar to his application, his statement and his oral testimony, he did not or describe any specific details relating to any physical abuse during the actual incidents with members of the group.
In his oral evidence at the hearing, he gave evidence about being confronted and a brief précis of each of those incidents are:
(a)The first incident took place sometime in 2014. He was walking along the road when a car containing four men stopped him. They asked him for his name and also for some money because they wanted to buy alcohol. He told them that he had no money, after which they verbally abused him. He did not say in his evidence that he was harmed or threatened with harm on this occasion. He did not make a complaint to the police about this incident.
(b)The second incident took place sometime in 2016, he was walking along the road when a vehicle containing five men stopped and approached him. He laughed at them and walked off, and then heard someone say, ‘it is time you got a hiding’. He ran away, with two of the group chasing him and in the process of running away he jumped a fence and injured his thumb. At its very highest, the threat to the applicant was that he would be assaulted. It was not his evidence that they threatened to kill him on this occasion. He made complaints to the police, and in doing so also complained about the 2014 incident.
(c)The third incident took place about two weeks after the second incident (in 2016). He was driving a motor vehicle when another vehicle containing members of the criminal group overtook him and caused damage to his motor vehicle. He said he made a complaint to the police about this incident.
(d)The fourth incident took place in 2019 when he was verbally threatened by two of the group. At its very highest the threat was that they verbally threatened to ‘beat him up’, and no actual physical interaction took place between them.
(e)The applicant claimed that the fifth and final incident took place in 2023 just before he came to Australia for the last time. He encountered four men in a motor vehicle. He claims they said to him ‘remember what we told you that we would do to you’. That is the extent of the threat, and there was no actual harm caused to the applicant and nor did he make any complaint to the police.
Notwithstanding that in his application and his statement he said that he was exposed to physical abuse by a group of local thugs, throughout his oral evidence at the hearing he never disclosed any examples of being physically abused or harmed by anyone. At its very highest, the only ‘physical’ thing that happened was his allegation that he was chased by two men and when he jumped a fence he injured himself.
When carefully assessing all of the evidence, including his statement and his oral testimony, although the Tribunal does accept that he was confronted by the people as he claimed, and he was verbally abused, the Tribunal does not accept that that the evidence presented to the Tribunal supports his claim that he was physically abused by anyone in Tonga. Therefore, the Tribunal is satisfied (and so finds) that he was not physically harmed.
When giving careful consideration to the evidence the applicant provided about those five incidents, all of that information he provided during his oral evidence was something which was not earlier disclosed to the Department prior to the primary decision being made by the delegate. Section 423A of the Act provides that because the applicant had raised new claims and presented new evidence which was not raised or presented with the delegate prior to the primary decision being made, the Tribunal was to draw an unfavourable inference as to the credibility of those claims or the evidence if the Tribunal was satisfied that he did not have a reasonable excuse why those claims or that evidence was not raised or presented on the earlier occasion.
When examining the applicant’s application for a Protection visa, it appears that at the time it was lodged with the Department he had representation by a solicitor. At the time of the hearing, he was still being represented by that same solicitor. Notwithstanding that there was no statement or statement of facts which accompanied the application when it was lodged with the Department, prior to the hearing his solicitor did provide to the Tribunal the applicant’s statement. For the purposes of these Reasons, the contents of that statement have been extracted and are displayed in paragraph 28 of these Reasons.
In the Tribunal’s view, the applicant does not have a reasonable excuse for not disclosing to the Department prior to the primary decision being made those particulars of the incidents that he described in his oral evidence. When carefully considering the evidence, although the Tribunal accepts the possibility of the applicant encountering those people as he described, the Tribunal particularly satisfied that his claims expressed in his application were non-specific and vague as to particularising where and when the incidents happened. Yet within his oral evidence, he first claimed that only three incidents happened, then his evidence evolved into telling the Tribunal of a further two incidents taking place in 2019 and 2023. When carefully assessing those features, the Tribunal is satisfied that an unfavourable inference should be drawn as to the credibility of that evidence for those reasons already explained.
A further consideration which satisfies the Tribunal that an unfavourable inference should be drawn as to the credibility of the evidence relates to the evidence contained within his migration history about his trips to and from Australia, notwithstanding that he claimed to have a well-founded fear of returning to Tonga.
Doing its best to match the timings of when the applicant claimed each of the five encounters with the criminal group took place to his travels to Australia, the Tribunal accepts that he made his second trip to Australia in August 2013 and returned to Tonga March 2014. He remained in Tonga until December 2016 when he made his third trip to Australia.
When assessing those timings and his evidence about the first incident in 2014, along with the second and third incidents in 2016, the Tribunal is satisfied that notwithstanding those three incidents, he departed Tonga [in] December 2016 and travelled to Australia where he remained for six months. He did not seek protection in Australia at that time, instead he chose to return to Tonga [in] June 2017.
In between returning back to Tonga after those initial three incidents as just described, he remained in Tonga for about nine months until he departed again for his fourth trip to Australia [in] March 2018. He does not claim of any interaction between himself and members of the group during that time. Although he was again in Australia (this time for six months), he did not seek protection, but instead chose to return to Tonga in September 2018.
He claimed that the fourth incident happened in 2019, although it is noted that he does not specify a particular date. His migration history shows that he arrived in Australia (for the fifth time) [in] March 2019 where he remained for six months, returning to Tonga [in] September 2019. Similar to his previous two trips to Australia, he did not seek protection.
His migration history shows that five months later, he arrived in Australia for the sixth time [in] February 2020. According to his oral testimony, by this time the first four incidents between himself and the criminal group had already taken place. Initially his visa was only valid for about eight months, however there were a number of onshore visas granted to him and he remained in Australia for a period of two years and seven months (31 months). Similar to what has already been discussed in these Reasons, he did not seek protection and chose to return to Tonga [in] September 2022.
He remained in Tonga for five months before he made his seven and last trip to Australia. He claimed that the fifth encounter with the criminal group took place just before he left Tonga. Notwithstanding that, after his arrival in Australia [in] March 2023, he did not seek protection for another eight months when he lodged his application for a Protection visa. It is noted by the Tribunal that coincidentally or otherwise, that application was lodged towards the very end of the validity of his visa and 14 days prior to when that visa was due to expire. The applicant’s delay in making his application is further discussed later in these Reasons.
Returning to ‘Complementary Protection’, section 36(2)(aa) of the Act provides that the relevant risk threshold in assessing complementary protection is that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant’s removal from Australia, there is a real risk that he will suffer significant harm if returned to Tonga. The Courts have adopted the principle that the test for ‘real risk’ imposes the same standard as the ‘real chance’ test applicable to the assessment of ‘well-founded fear’ in the Refugee Convention definition.[44]
[44]Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33.
Real chance was also discussed in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 and the High Court said the expression ‘a real chance’ clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution occurring.[45] The question of ‘real chance’ is the test to be applied on an application for a Protection visa under the Act when considering whether the applicant has a well-founded fear that they will face persecution for a Convention reason if returned to their country of nationality.[46] A person’s fear of persecution must be well-founded on the basis that there is a real chance that they will be persecuted if they return to their country of nationality. A real chance is one that is not remote, regardless of whether it is less or more than 50 per cent.[47]
[45]Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 citing Boughey v The Queen (1986) 161 CLR 10, 21.
[46]Migration Act 1958 (Cth), s 36(2)(a); Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 citing Regina v Home Secretary; Ex parte Sivakumaran (1988) AC 958.
[47]Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.
When carefully assessing the claims made by the applicant, the Tribunal is not satisfied the harm the applicant fears could constitute either of the forms of significant harm as defined in section 36(2A) of the Act. The Tribunal is also satisfied that the applicant has not claimed that he will be arbitrarily deprived of his life, the death penalty will be carried out on him or that he will be subjected to torture. Nor is there any information before me to indicate that he would suffer any of these forms of ‘significant harm’ in section 36(2A)(a)-(c) of the Act if he returned to Tonga.
The Tribunal has also carefully considered whether the harm he claimed he feared could constitute either of the other forms of significant harm in section 36(2A)(d)-(e) of the Act, that is ‘cruel or inhuman treatment or punishment’ or ‘degrading treatment or punishment’. Both of these forms of significant harm are defined in section 5(1) of the Act and require the act or omission of the perpetrator to inflict the requisite level of pain or suffering (for cruel or inhuman treatment or punishment) or to cause extreme humiliation (for degrading treatment or punishment) and be intentional.
Careful consideration has been given to the country information relating to the Tongan Constitution, the Police Act, the Tonga Criminal Offences Act and MOU between the AFP and the Tongan Police Force, the Tribunal is satisfied (and so finds) that the laws of Tonga appropriately and sufficiently address crime related to threats of harm to persons within Tonga, as well as offences of causing injury to another person. The Tribunal is also satisfied (and so finds) that the applicant would be able to avail himself to effective state protection, and could obtain from the Tongan authorities protection such that there would not be a risk that he will suffer significant harm upon his return to Tonga.[48]
[48]Migration Act 1958 (Cth), s 36(2B)(b).
After having considered all of the applicant’s claims, individually and cumulatively, along with the evidence, the Tribunal does not accept that if he returns to Tonga now or in the reasonably foreseeable future he will be arbitrarily deprived of life, the death penalty will be carried out on him, or he will be subjected to torture or to cruel or inhuman treatment or punishment, and nor will he be subjected to degrading treatment or punishment.
DELAY IN LODGING APPLICATION
Earlier in these Reasons at paragraph 15, the applicant’s travel to and from Australia was outlined. Between 2012 and 2023 he travelled to Australia seven times, with his last arrival took place [in] March 2023 and his arrival was subject to the conditions of a Temporary Work (International Relations) (subclass 403) visa. His application for a Protection visa was not lodged until 24 November 2023, which is about eight months after his arrival. As it has already been identified in these Reasons, that application was not lodged until 14 days prior to his visa expiring.
In respect to any consideration the Tribunal gives to that delay of eight months, guidance is found by the determinations reached in Subramaniam v Minister for Immigration and Multicultural Affairs (1998) VG310 of 1997 (‘Subramaniam’) where the Court held that even a three-month delay in lodging a Protection visa application is a legitimate matter to consider when assessing the genuineness or depth of an applicant’s fear of persecution. Therefore, after giving that delay careful consideration to the features of this case, the Tribunal is satisfied (and so finds) that under the circumstances, that delay is a significant delay.
When carefully considering the circumstances of any delay between when the applicant arrived in the country to when he made his application, a delay in him making that application for protection should not be the sole reason for doubting his claims. There should be other reasons to support a finding that his claims are not credible, and the significance of any delay on his behalf will depend upon the particular circumstances surrounding that delay and the reasons he provides for that delay.[49]
[49]Selvadurai v Minister for Immigration and Ethnic Affairs (1994) ALD 346: Anandaraj Subramanian v Minister for Immigration and Multicultural Affairs, unreported, Federal Court of Australia, Carr J, 10 March 1998.
Outlined in great detail within paragraphs 79 to 85 of these Reasons are the timings of when the applicant claims he was confronted by the criminal group and when his various trips were made to Australia. The applicant was asked during the review hearing that if he had such a well-founded fear of being harmed by the criminal gang if he returned to Tonga, could he explain why it took him over eight months after he arrived in Australia to make his Protection visa application. His explanation was that he and his wife had a number of conversations since he last arrived in Australia about what he would do if he returned to Tonga. He cited a change in circumstances such as his wife having to relocate her church, but he never thought that it was an option for him to stay in Australia. However, as the seasonal work here in Australia was about to finish, he and his wife had a discussion about his future. They both came to the decision that he should stay to see if there was an opportunity to relocate away from Tonga.
The applicant’s claims for protection within this country revolve around claims relating to criminal gangs and threats he had received from members of that group. Notwithstanding that he said that he was targeted by that gang, and that he would face serious harm or death if he returned to Tonga, it has been identified that he had travelled to and returned to Tonga a number of times after he claims that he was threatened, and it took him until the seasonal work was about to conclude here in Australia before he decided that he would apply for protection.
When assessing the genuineness or depth of his claimed fear of persecution should he return to Tonga against all the known facts of this matter in regard to the significant delay, the Tribunal is satisfied (and so finds) that the significant delay can support an adverse credibility finding as well as a finding that he does not have a well-founded fear of harm because significant delay is not behaviour indicative of someone who fears for their physical safety.[50]
[50] ZHANG SU RONG V REFUGEE REVIEW TRIBUNAL AND ANOR [1997] FCA 423; KAVAN V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS [2000] FCA 370, [22].
CONCLUSION: REFUGEE CRITERION
Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds that there is not a real chance he will be persecuted for reasons of race, religion, nationality, political opinion or membership of a particular social group in Tonga. The Tribunal also finds that his fear of persecution is not well-founded as required by section 5J of the Act and, therefore, he is not a refugee within the meaning of section 5H of the Act.
CONCLUSION: COMPLEMENTARY PROTECTION CRITERION
Having considered all the circumstances as they apply individually and cumulatively to the applicant, the Tribunal finds there are not substantial grounds for believing that as a necessary and foreseeable consequence of him being removed from Australia to Tonga, he will be exposed to a real risk of suffering significant harm.
OVERALL CONCLUSION
100. 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 section 36(2)(a) of the Act.
101. Having concluded that the applicant does not meet the refugee criterion in section 36(2)(a) of the Act, the Tribunal has considered the alternative criterion and is not satisfied that he is a person in respect of whom Australia has protection obligations under section 36(2)(aa) of the Act.
102. There is no suggestion that the applicant satisfies section 36(2) of the Act based on being a member of the same family unit as a person who satisfies section 36(2)(a) or section 36(2)(aa) of the Act and who holds a Protection visa. Accordingly, he does not satisfy the criteria in section 36(2) of the Act.
DECISION
103. The Tribunal affirms the decision not to grant the applicant a Protection visa.
Wayne Pennell
Senior Member
ATTACHMENT - Extract from Migration Act 19585 (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.
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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.
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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.
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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.
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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.
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36 Protection visas – criteria provided for by this Act
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(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.
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Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Standing
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Statutory Construction
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