2405524 (Refugee)

2405524 (Refugee) [2024] AATA 4327 (14 August 2024)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER:  2405524
COUNTRY OF REFERENCE:                   Tonga
MEMBER:Mark Oakman
DATE:14 August 2024
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicant a protection visa.

Statement made on 14 August 2024 at 10:59am
CATCHWORDS
REFUGEE – Protection Visa – Tonga – did not suffer any harm previously in Tonga – suffers from medical conditions – ongoing dialysis – any difficulties the applicant may have in accessing any medical treatment does not amount to significant harm – strong compassionate circumstances – no dialysis treatment available in Tonga – referral to the Minister – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 5, 56, 65, 417, 499
Migration Regulations 1994, Schedule 2
CASES
MIAC v SZQRB (2013) 210 FCR 505
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 dependant.
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 15 March 2024 to refuse to grant the applicant a protection visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant who claims to be a citizen of Tonga, applied for the visa on 16 February 2024. The delegate refused to grant the visa on the basis that he is not a person in respect of whom Australia has protection obligations.
The applicant appeared before the Tribunal on 3 July 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Tonga and English languages.
CRITERIA FOR A PROTECTION VISA
The criteria for a protection visa are set out in s 36 of the Act and Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). An applicant for the visa must meet one of the alternative criteria in s 36(2)(a), (aa), (b), or (c). That is, he or she is either a person in respect of whom Australia has protection obligations under the ‘refugee’ criterion, or on other ‘complementary protection’ grounds, or is a member of the same family unit as such a person and that person holds a protection visa of the same class.
Section 36(2)(a) provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee.
A person is a refugee if, in the case of a person who has a nationality, they are outside the country of their nationality and, owing to a well-founded fear of persecution, are unable or unwilling to avail themselves of the protection of that country: s 5H(1)(a). In the case of a person without a nationality, they are a refugee if they are outside the country of their former habitual residence and, owing to a well-founded fear of persecution, are unable or unwilling to return to that country: s 5H(1)(b).
Under s 5J(1), a person has a well-founded fear of persecution if they fear being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, there is a real chance they would be persecuted for one or more of those reasons, and the real chance of persecution relates to all areas of the relevant country. Additional requirements relating to a ‘well-founded fear of persecution’ and circumstances in which a person will be taken not to have such a fear are set out in ss 5J(2)-(6) and ss 5K-LA, which are extracted in the attachment to this decision.
If a person is found not to meet the refugee criterion in s 36(2)(a), he or she may nevertheless meet the criteria for the grant of the visa if he or she is a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: s 36(2)(aa) (‘the complementary protection criterion’). The meaning of significant harm, and the circumstances in which a person will be taken not to face a real risk of significant harm, are set out in ss 36(2A) and (2B), which are extracted in the attachment to this decision.
Mandatory considerations
In accordance with Ministerial Direction No.84, made under s 499 of the Act, the Tribunal has taken account of the ‘Refugee Law Guidelines’ and ‘Complementary Protection Guidelines’ prepared by the Department of Home Affairs, and country information assessments prepared by the Department of Foreign Affairs and Trade expressly for protection status determination purposes, to the extent that they are relevant to the decision under consideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant is a person in respect of whom Australia has protection obligations. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Receiving Country
The applicant provided a copy of his Tongan passport to the Department. He stated in his protection visa application that he was a citizen of Tonga and confirmed the same at the hearing. Based on that documentary and oral evidence, I accept that the applicant is a national of Tonga. Tonga is the receiving country for the purpose of this assessment.
Migration history
The applicant moved to Australia in 1985. He has travelled to Tonga on occasions over the years for short periods. His last trip to Tonga was in 2017 and he last entered Australia on a resident return visa (Subclass 155) in 2017.
Background
According to information given by the applicant in his protection visa application and at the hearing, he is [age] years old and was born in [named village], Tonga. He was previously married to a Tongan woman (married in 1982, divorced in 1995). He has been with his current partner, an Australian citizen, for 21 years. He has three daughters and two sons, and they all live in Australia and are Australian citizens. He has nine grandchildren. His surviving siblings, three brothers and a sister, live in Australia. Of the siblings, one brother is an Australia citizen, another brother and his sister are New Zealand citizens, and the third brother is a Tongan citizen. He no longer has any family or friends in Tonga. He is Tongan and Christian. He reads, writes, and speaks Tongan and English.
He attended school in Tonga from 1970 to 1978. He has worked in various jobs in Australia since 1985, as well as spending time on a disability support pension. He last worked in Australia from 2022 to 2023 as a [occupation]. He has completed courses in [specified areas].
Evidence before the Department
In the protection visa application lodged 16 February 2024, the applicant made the following claims (see pages 25-26 of his application):
·Select the country or countries from which this applicant is seeking protection and cannot return to – Tonga.
·Provide reasons why this applicant left that country – I left my country because all my family and children live in Australia. I also have a serious medical condition. I have type 2 diabetes and kidney function failure (Only [number]). My treatment is only available in Australia. Please refer to my medical reports attached.
·Did this applicant experience harm in that country? – Yes. They do not have advanced medical treatment which might harm m[e] based on my current medical condition.
·Did this applicant seek help within the country after the harm? Give details – Yes. My treatment is not available in Tonga.
·Did this applicant move, or try to move, to another part of the country to seek safety? Give details – Yes. I moved to Australia.
·Explain what this applicant thinks will happen to them if they return to that country – I would not [be] treated and will die as my treatment is not available in Tonga.
·Does this applicant think they will be harmed or mistreated if they return to that country? Give details – Yes. I would not [be] treated and will die as my treatment is not available in Tonga.
·Does this applicant think the authorities can and will protect this applicant if they go back? Give details – Yes. I would not [be] treated and will die as my treatment is not available in Tonga.
·Does this applicant think they would be able to relocate within that country to an area where they would not be harmed? Give details - No. I seek a complementary protection because I would not [be] treated and will die as my treatment is not available in Tonga.
Attached to the protection visa application was a statement dated 15 February 2024 from the applicant that said:
‘I, [applicant’s name], am submitting this statement in support of my application for a protection visa in Australia. Having resided in Australia for nearly 40 years, I have become an integral part of the Australian community, with a deep-rooted connection to its culture and society.
During my time in Australia, I have tirelessly contributed to the Australian society and economy through diverse employment experiences. My work history includes two years on a farm, six months with [a company] and another [company] in Melbourne for one year, and three years with a [company] in Sydney. This varied employment background not only reflects my commitment and dedication but also showcases my adaptability and willingness to contribute positively to the Australian workforce.
Unfortunately, my health has taken a severe turn, as I have been diagnosed with type 2 diabetes leading to kidney failure. The decline in kidney function poses a life-threatening risk, and it has become imperative for me to receive ongoing medical treatment. Regrettably, my home country of Tonga lacks the necessary medical facilities, particularly dialysis treatment, making it impossible for me to manage my condition there.
I am currently receiving essential medical care in Australia, which is crucial for the management of my diabetes and the prevention of life-threatening complications. The absence of suitable medical facilities in Tonga puts my life at significant risk, and continuing my treatment in Australia is my only viable option.
Moreover, deportation would have devastating consequences for my entire family. In addition to the emotional distress and disruption to the lives of my children and grandchildren, my health condition would further exacerbate, leading to irreversible complications. My Tongan culture places a great emphasis on family and community, and my absence would not only impact my immediate family but also the broader Australian community where we have formed connections integral to maintaining our cultural identity and traditions.
I implore the Department of Home Affairs to consider the critical nature of my medical condition and the absence of suitable treatment options in Tonga. Granting me a protection visa would not only safeguard my life but also ensure that I can continue to contribute positively to the Australian community.
I appreciate your attention to my case and your understanding of the urgent need for ongoing medical care.’
Attached to the protection visa application were the following supporting documents:
·Letter of support from daughter, ‘Ms A’, dated 15 February 2024
·Letter of support from daughter, ‘Ms B’, dated 16 February 2024
·Letter of support from daughter, ‘Ms C’, undated
·Letter of support from son, ‘Mr D’, undated
·Letter of support from son, ‘Mr E’, undated
·[Dr A] letters dated 22 December 2023 and 23 February 2024
·various ID documents
The applicant was not invited to an interview with the delegate.
Evidence before the Tribunal
The applicant lodged his application for review with the Tribunal on 20 March 2024.
The matter was listed for a video hearing on 13 May 2024, but was re-listed by the Tribunal to allow the applicant to appear in person. It was relisted for hearing on 20 May 2024. The hearing scheduled for 20 May 2024 had to be postponed due to the applicant’s health issues.
On 15 May 2024, the applicant’s former representatives emailed supporting documents to the Tribunal:
·[Dr A] letter dated 3 May 2024
·The applicant’s clinical notes and other medical records for the period from 14 April 2023 to 6 May 2024
The applicant appeared before the Tribunal in person on 3 July 2024 to give evidence and present arguments. The applicant had requested an interpreter in the Tongan language and the Tribunal arranged for a Tongan interpreter to attend the hearing. At the commencement of the hearing the applicant indicated that he was generally capable of participating in the hearing using the English language. The Tribunal encouraged the applicant to rely upon the interpreter at any stage he did not understand the Tribunal’s questions or wished to convey his responses through the interpreter using the Tongan language rather than speaking with the Tribunal directly in the English language. In the event, on occasion the applicant used the services of the interpreter during the hearing and the Tribunal elected to direct some questions to the applicant through the interpreter. Where relevant the applicant’s oral evidence at the hearing is referred to in my analysis below.
At the conclusion of the hearing the applicant was given until 19 July 2024 to provide any further material, including any updated medical reports, in support of his protection visa application.
In an email dated 10 July 2024 the applicant provided a letter for [Dr A] dated 5 July 2024. As the provided scanned copy of that letter was unreadable in parts, the applicant provided further (readable) copies of [Dr A]’s letter in emails on 10 and 11 July 2024 and 10 August 2024.
In an email dated 14 July 2024 the applicant provided a letter to the Tribunal that stated:
‘I write to you in respect to my current appeal and take this opportunity of enclosing copy of letter from Dr. [A] [the] contents of which are self-explanatory.
I respectfully submit that the offences giving rise to my detention would be considered spent as they occurred many years ago when I was a young Pacific Islander having only then recently arrived in Australia. Over the years I have become well integrated into my new homeland and have developed many friends and social acquaintances and before my detention was a hard-working participant in Australian society.
The prospect of my deportation to Tonga is simply a death sentence. Not only is the life expectancy in Tonga substantially less than Australia and the diet less healthy, but there are no renal facilities available to treat my condition.
At present here in Australia I have dialysis twice weekly and this is soon to be increased to thrice weekly. In Tonga no such facilities exist or are likely to exist for many years. As a result, in the event that my appeal is not allowed and I am deported to Tonga at the age of [age] my life expectancy is very short.
I implore you to consider my application for appeal and I beg for some clemency to be shown having regard to my long period of residence in Australia and strong ethnic and cultural ties here in Australia and at the age of [age] presenting little or no likelihood of doing any harm to the Australian community in the event that my Appeal is allowed and I am permitted to remain in Australia.
Thanking you in anticipation of your understanding and consideration of my plea to you.’
Analysis, reasons, and findings
The applicant said at the hearing that he left Tonga because he had married. He confirmed that he did not suffer any harm previously in Tonga, including on his return visits. He was asked what he feared would happen to him if he returned to Tonga. He said he had no place to live there, there was nothing there for him and he needs ongoing dialysis which is not available in Tonga.
He spoke about his medical condition at the hearing. He said he started on dialysis in March this year and has received it weekly since then for about four to five hours on Mondays and Fridays at [Hospital 1]. [Dr A] is his treating kidney specialist, based at [Hospital 1]. He receives other medical treatment as required at the detention centre. He had his next appointment with [Dr A] a few days after the hearing. He thought his dialysis might be changed from two days a week to three days a week due to a fall in his kidney function. He said there had been no recent changes in his medication. He also has a cyst in his hand and had fainted once due to low blood pressure. He said his prognosis was for ongoing dialysis, currently two days a week, for the rest of his life. The Tribunal noted he had provided a range of medical records to support his case and, when asked, he particularly wanted to draw the reports from [Dr A] to the Tribunal’s attention.
He was asked where he would live, and what he would do, if he returned to Tonga. He said there was nothing in Tonga for him to support himself, he was old now and could do nothing. He was not aware of any family or friends of his that remained in Tonga. He confirmed that his children and siblings were now all in Australia. He confirmed his siblings were all working. The Tribunal asked if his children and siblings could provide him with financial support if he was to return to Tonga. He said they might, but he didn’t think so. The Tribunal asked if he had discussed it with them, and he said he had, and they had said they could support him, but he was concern that they might do it once but not again. He confirmed that other than his concerns in relation to no support and his ongoing need for dialysis, he did not have any other fears about returning to Tonga. He told the Tribunal he just wants to return to his children as they are the ones who are looking after him, and he really misses them.
The material before the Tribunal confirms the applicant’s claims in relation to his medical health problems. In particular, the 5 July 2024 report from [Dr A], Renal Physician, confirms he has a background of [details deleted]. He is on a range of listed medications. [Dr A] certifies that the applicant was diagnosed with chronic kidney disease 3-4 years ago and this had progressed to his requiring dialysis from 19 March 2024. He was currently receiving dialysis treatment twice a week as he still has some residual renal function. He had approximately [number] kidney function in February 2024 prior to commencing dialysis and as his residual native kidney function declines, he will gradually require more dialysis. The usual prescription of dialysis is three times a week for about five hours per session. [Dr A] states there is no expected recovery of renal function and the applicant requires renal replacement therapy in the form of dialysis or renal transplantation for the rest of his life. Although not specifically mention in her report of 5 July 2024, I note that in her report of 3 May 2024, [Dr A] stated her impression that the applicant was reliant on the dialysis (haemodialysis) to live.
I accept that the applicant suffers from medical conditions and that he is undergoing dialysis which he will require for the rest of his life, as set out in the supporting medical records including the reports by [Dr A]. If he returns to Tonga, he will require medical care and treatment, including ongoing dialysis.
Vaiola Hospital in Nuku’alofa is the main hospital in Tonga. The islands of Vava’u, Ha’apai and ‘Eua also have hospitals, but the hospital in Eua offers very limited medical services. Compared to other small island nations, Tonga has generally high levels of access to healthcare due to significant support from Australia and New Zealand. The hospital in Nuku’alofa offers most general medical services such as pharmacy, dental, surgical, obstetric, and gynecologic services; it also has a 24/7 emergency department with medical and surgical capabilities to respond to varying levels of emergencies. Public hospitals provide approximately 89% of healthcare services in Tonga, with 6% made up by health centres. Approximately 5% of health services in Tonga are private, and more rudimentary than public services. Medical care in Tonga is deficient in many areas, and treatment needs to be undertaken elsewhere such as Australia and New Zealand. The government provides Tongan citizens with free healthcare.[1]
[1] ‘Tonga Country Security Report’, Overseas Security Advisory Council Bureau of Diplomatic Security, US Department of State (USDOS), 8 February 2023.

Country information confirms that dialysis is not available in Tonga. People in Tonga who require dialysis must attend facilities overseas to obtain any dialysis treatment.[2] The delegate considered information that Tonga’s first dialysis centre was to be opened in Tonga in early 2024.[3] The Tribunal was unable to locate any information to confirm that the expected opening of the dialysis centre had taken place. The website for the organisation behind the dialysis centre still refers to the centre ‘beginning in early 2024’ or as ‘expected completion: 2024’ in different parts of its homepage, and as ‘By 2024’ in its Our Vision page; but nowhere in its website does it suggest it has now opened.[4] The Tongan government in its recent budget allocated money for the establishment of a dialysis unit within an existing hospital in Tonga.[5] Other than the announcement of the budget allocation, no further information could be located on the proposed timing of when such a dialysis unit would be likely to be completed and operational.
[2] 'Tonga [World Health Organization - Diabetes country profiles]', World Health Organization, 10 March 2016; 'I just pray' – Tongan diabetes patients face death sentence as Kingdom won't fund costly dialysis centre’, 26 February 2018; and ‘New dialysis centre expected to save lives in Tonga’, ABC Australia, 16 August 2023 (
[3] Groundbreaking ceremony for Tonga’s new dialysis centre', Kaniva Tonga, 4 August 2023, 20240118115539; and 'Siaosi Brown Dialysis Center - Homepage', Siaosi Brown Dialysis Center, n.d. (accessed 18 January 2024), 20240118120620
[4] Siaosi Brown Dialysis Center website, n.d. (last accessed 13 August 2024).
[5] ‘Budget Statement, for the Year ending 30^th June 2025’, Government of Tonga (Budget Statement 2024 - 2025.pdf (finance.gov.to)); ‘Government Budget FY 2025- FY 2027 – Key Initiatives to Support the Health Sector’, Media PMO Tonga, 17 June 2024; and ‘Government invests $78.9 million in healthcare’, talanoaotonga.to, 18 June 2024.
Based on the country information, I find that, if returned to Tonga, the applicant will be entitled to access free health care in Tonga. I also find that he will face challenges in accessing medical treatment and healthcare due to the limited availability, or absence, of some medical services Tonga. In particular, the dialysis services that he requires are not available in Tonga, now or in the reasonably foreseeable future. However, I have been unable to locate any country information that identifies discrimination as an issue in relation to accessing the medical health services that are available in Tonga.[6] I do not accept that any challenges or difficulties the applicant may face accessing treatment for his general medical conditions, or the unavailability locally of the dialysis he requires due to his limited kidney function, would involve systematic and discriminatory conduct for one or more of the reasons mentioned in s 5J(1)(a) of the Act.
[6] See USDOS, ‘2023 Country Reports on Human Rights Practices: Tonga’, 22 April 2024; 'State of the Worlds Human Rights 2024', Amnesty International, 23 April 2024; and ‘Human Rights Watch World Report 2024', Human Rights Watch, 11 January 2024.
The applicant is concerned about how he could support himself if he had to return to Tonga.
According to the World Bank, the Tongan economy is led by tourism and remittances. However, the return to pre-pandemic output levels is notably slow. Tonga experienced stronger growth in 2023, at 3 percent, with its 2024 growth forecast at 2.3 percent. Natural disasters have significantly impeded Tonga’s tourism recovery. Inflation in Tonga surged to double digit levels in 2022 but receded in 2023, moving closer to the central bank’s 5 percent target rate. For Tonga, the resurgence in agriculture and commerce and the completion of reconstruction projects are the primary forces behind economic recovery. The successful culmination of these factors is expected to propel Tonga toward a path of sustainable growth and Tonga is projected to continue its progress in reducing poverty (measured by the upper-middle-income poverty line of $6.85 per day) until 2026 based on the baseline GDP projection. The unemployment rate in 2023 was 2.4 percent. The population of Tonga (2022) was just over 106,000 people.[7] A large proportion of the population was in the informal sector, specifically in agricultural activities and small-scale manufacturing, but official figures for the size of the informal economy were not available. Recent reports estimated that approximately 56 percent of workers in the informal sector were casually or temporarily employed, and 36 percent were employed part-time.[8]
[7] ‘Pacific Economic Update: Back on Track? The Imperative of Investing in Education’, The World Bank, 1 March 2024; and ‘Data for World, Guam, Fiji, Ireland, Tonga, Zambia’, data.worldbank.org, accessed 29 April 2024.
[8] USDOS, ‘2022 Country Reports on Human Rights Practices: Tonga’, 20 March 2023; and USDOS, ‘2023 Country Reports on Human Rights Practices: Tonga’, 22 April 2024.
Based on the country information, I accept that if the applicant returns to Tonga, he may face difficulty in initially finding employment, and that any such employment may be low paid. Additionally, given his age and his health, particularly his need for ongoing dialysis, his employment prospects may be very limited. He no longer has family or other support networks based within Tonga itself. However, the applicant said at the hearing that he had spoken to his family about their providing him with support if he had to return to Tonga and they had said they would. In the supporting letters from his children, Ms B said she and her siblings were prepared to provide financial support for the applicant and Mr E said he would provide financial sustenance to the applicant, albeit in reference to the applicant being in Australia. At the hearing the applicant raised his concern that his family may only support him once and not again. This is simply speculation on the applicant’s part. Given both Ms B and Mr E stated they were willing to support the applicant in Australia, I do not accept that, if the applicant was returned to Tonga, they would not be prepared to provide him with a level of basic support, if required. Although I accept that if the applicant returns to Tonga, he will otherwise be without any local support networks and, given the economic and his personal circumstances, he has limited employment prospects, I have also found that he will be able to access a basic level of support, if required, from his siblings and children in Australia. Therefore, while I accept that he may face some economic hardship, I do not accept on the evidence that the situation is such or that the applicant’s prospects are so limited that there is a real chance that he would be denied the capacity to earn a livelihood of any kind or experience hardship to an extent that would threaten his capacity to subsist or otherwise lead to serious harm. Further, the country information indicates that the economic conditions in Tonga impact the population and country generally. As such, I do not accept that the economic difficulties or hardship the applicant may face if returned to Tonga, now or in the reasonably foreseeable future, would amount to persecution for any s 5J reason under the Act.
The applicant will be separated from his children, his grandchildren, and his siblings, if he returns to Tonga. I accept that he, and they, may find these circumstances distressing. However, I am not satisfied that one or more of the reasons set out in s.5J(1) of the Act is the essential and significant reason for this or that the applicant faces a real chance of persecution as a result of his Australian family situation, if he is returned to Tonga.
Considering the findings set out above and having considered the claims singularly and on a cumulative basis, the Tribunal is not satisfied that if the applicant returns to Tonga now or in the foreseeable future, he faces a real chance of harm for any reason. The applicant does not face a real chance of persecution, if returned to Tonga, now or in the reasonably foreseeable future.
For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(a).
Having concluded that the applicant does not meet the refugee criterion in s 36(2)(a), the Tribunal has considered the alternative criterion in s 36(2)(aa).
I accept that if he returns to Tonga the applicant will be separated from his children, his grandchildren, and his siblings, all of whom live in Australia. While such a separation would be distressing for the applicant and his family in Australia, I am not satisfied that any suffering caused to the applicant because of the separation would constitute any form of significant harm as defined, including cruel, inhuman or degrading treatment or punishment, which requires an element of intention in relation to the infliction of harm which is absent in the present circumstances. I am not satisfied that the Australian authorities, in removing the applicant from Australia in accordance with the requirements of the Act, would intend to cause pain or suffering or extreme humiliation by doing so. Having regard to the Federal Court’s decision in SZRSN v MIAC[9], I do not consider that harm arising from the act of removal itself, such as separation from his Australian family, meets the definitions of ‘significant harm’ in s.36(2A).
[9] [2013] FCA 751.
The country information indicates that the economic conditions in Tonga impact the country in general, rather than from an act or omission intended to cause pain or suffering that could reasonably be regarded as cruel or inhuman, severe pain or suffering or extreme humiliation as required by the relevant definitions of significant harm. I find on the evidence that any economic difficulties or hardship the applicant may experience, does not amount to torture, cruel or inhuman treatment or punishment or degrading treatment or punishment within the meaning of the Act. For the same reasons I find that there is not a real risk of the applicant being arbitrarily deprived of his life or the death penalty being carried out.
I accept that the applicant will face challenges in accessing medical treatment and healthcare due to the limited availability, or absence, of some medical services Tonga, including the absence of dialysis. However, I find based on the country information that any difficulties the applicant may have in accessing any medical treatment does not amount to significant harm. This is due to a lack of availability of resources rather than an intentional infliction by the Tonga government or any other group or person to cause extreme humiliation or mental or physical pain or suffering that could reasonably be regarded as cruel or inhuman in nature, or severe pain or suffering. It does not amount to torture or an arbitrary deprivation of life or the death penalty. In making this finding, I have had regard to the Federal Court decision in SZDCD v MIBP[10]. I find that any difficulties the applicant may face in accessing treatment, including the absence of dialysis treatment, do not amount to significant harm as defined in ss 36(2A) and 5 of the Act.
[10] [2019] FCA 326.
For the reasons set out above I have found that there is not otherwise a real chance of harm for this applicant for any reason were he to return to Tonga. As ‘real risk’ and ‘real chance’ involve the application of the same standard,[11] he also does not face a real risk of any harm in Tonga. I find that the applicant does not face a real risk of significant harm in Tonga.
[11] MIAC v SZQRB (2013) 210 FCR 505.
The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s 36(2)(aa).
There is no suggestion that the applicant satisfies s 36(2) on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s 36(2).
DECISION
The Tribunal affirms the decision not to grant the applicant a protection visa.
Referral to the Minister
The Tribunal may refer a case to the Department for consideration by the Minister pursuant to s 417 of the Act which gives the Minister the discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.
Under the Ministerial intervention guidelines, cases that have one or more unique or exceptional circumstances may be referred to the Minster for possible consideration of the use of the Minister’s intervention powers. Such circumstance may include:
·Strong compassionate circumstances that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.
·Compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person.
As discussed above, there is no dialysis treatment available in Tonga and the medical evidence confirms that the applicant requires dialysis for the rest of his life and is reliant on dialysis to live. In those circumstances, having regard to the applicant’s health, his removal from Australia to Tonga would result in serious, ongoing, and irreversible harm and continuing hardship to the applicant.
Additionally, the applicant’s children, grandchildren and siblings all live in Australia. His children (and presumably his grandchildren), and one of his siblings, are Australian citizens. His children have provided supporting letters that, among other things, emphasis the importance of family to the Tongan culture, the applicant’s contribution to the lives of his children and grandchildren, and the adverse impact on the applicant’s Australian-based family if he were to be returned to Tonga.
Having considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in departmental policy ‘Minister’s guidelines on ministerial powers (s 351, s 417 and s 501J)’, the Tribunal will refer the matter to the Department.
Mark Oakman
Member

ATTACHMENT - Extract from Migration Act 1958
5 (1) Interpretation
…
cruel or inhuman treatment or punishment means an act or omission by which:
(a)     severe pain or suffering, whether physical or mental, is intentionally inflicted on a person; or
(b)     pain or suffering, whether physical or mental, is intentionally inflicted on a person so long as, in all the circumstances, the act or omission could reasonably be regarded as cruel or inhuman in nature;
but does not include an act or omission:
(c)     that is not inconsistent with Article 7 of the Covenant; or
(d)     arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
degrading treatment or punishment means an act or omission that causes, and is intended to cause, extreme humiliation which is unreasonable, but does not include an act or omission:
(a)     that is not inconsistent with Article 7 of the Covenant; or
(b)     that causes, and is intended to cause, extreme humiliation arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
torture means an act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person:
(a)     for the purpose of obtaining from the person or from a third person information or a confession; or
(b)     for the purpose of punishing the person for an act which that person or a third person has committed or is suspected of having committed; or
(c)     for the purpose of intimidating or coercing the person or a third person; or
(d)     for a purpose related to a purpose mentioned in paragraph (a), (b) or (c); or
(e)     for any reason based on discrimination that is inconsistent with the Articles of the Covenant;
but does not include an act or omission arising only from, inherent in or incidental to, lawful sanctions that are not inconsistent with the Articles of the Covenant.
…
receiving country, in relation to a non-citizen, means:
(a)     a country of which the non-citizen is a national, to be determined solely by reference to the law of the relevant country; or
(b)     if the non-citizen has no country of nationality—a country of his or her former habitual residence, regardless of whether it would be possible to return the non-citizen to the country.
…
5H    Meaning of refugee
(1)For the purposes of the application of this Act and the regulations to a particular person in Australia, the person is a refugee if the person is:
(a)     in a case where the person has a nationality – is outside the country of his or her nationality and, owing to a well-founded fear of persecution, is unable or unwilling to avail himself or herself of the protection of that country; or
(b)     in a case where the person does not have a nationality – is outside the country of his or her former habitual residence and owing to a well-founded fear of persecution, is unable or unwilling to return to it.
Note:     For the meaning of well-founded fear of persecution, see section 5J.
…
5J     Meaning of well-founded fear of persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, the person has a well-founded fear of persecution if:
(a)     the person fears being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion; and
(b)     there is a real chance that, if the person returned to the receiving country, the person would be persecuted for one or more of the reasons mentioned in paragraph (a); and
(c)     the real chance of persecution relates to all areas of a receiving country.
Note:     For membership of a particular social group, see sections 5K and 5L.
(2)A person does not have a well-founded fear of persecution if effective protection measures are available to the person in a receiving country.
Note:     For effective protection measures, see section 5LA.
(3)A person does not have a well-founded fear of persecution if the person could take reasonable steps to modify his or her behaviour so as to avoid a real chance of persecution in a receiving country, other than a modification that would:
(a)     conflict with a characteristic that is fundamental to the person’s identity or conscience; or
(b)     conceal an innate or immutable characteristic of the person; or
(c)     without limiting paragraph (a) or (b), require the person to do any of the following:
(i)alter his or her religious beliefs, including by renouncing a religious conversion, or conceal his or her true religious beliefs, or cease to be involved in the practice of his or her faith;
(ii)conceal his or her true race, ethnicity, nationality or country of origin;
(iii)alter his or her political beliefs or conceal his or her true political beliefs;
(iv)conceal a physical, psychological or intellectual disability;
(v)enter into or remain in a marriage to which that person is opposed, or accept the forced marriage of a child;
(vi)alter his or her sexual orientation or gender identity or conceal his or her true sexual orientation, gender identity or intersex status.
(4)If a person fears persecution for one or more of the reasons mentioned in paragraph (1)(a):
(a)     that reason must be the essential and significant reason, or those reasons must be the essential and significant reasons, for the persecution; and
(b)     the persecution must involve serious harm to the person; and
(c)     the persecution must involve systematic and discriminatory conduct.
(5)Without limiting what is serious harm for the purposes of paragraph (4)(b), the following are instances of serious harm for the purposes of that paragraph:
(a)     a threat to the person’s life or liberty;
(b)     significant physical harassment of the person;
(c)     significant physical ill‑treatment of the person;
(d)     significant economic hardship that threatens the person’s capacity to subsist;
(e)     denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)     denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(6)In determining whether the person has a well‑founded fear of persecution for one or more of the reasons mentioned in paragraph (1)(a), any conduct engaged in by the person in Australia is to be disregarded unless the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee.
5K    Membership of a particular social group consisting of family
For the purposes of the application of this Act and the regulations to a particular person (the first person), in determining whether the first person has a well‑founded fear of persecution for the reason of membership of a particular social group that consists of the first person’s family:
(a)     disregard any fear of persecution, or any persecution, that any other member or former member (whether alive or dead) of the family has ever experienced, where the reason for the fear or persecution is not a reason mentioned in paragraph 5J(1)(a); and
(b)     disregard any fear of persecution, or any persecution, that:
(i)the first person has ever experienced; or
(ii)any other member or former member (whether alive or dead) of the family has ever experienced;
where it is reasonable to conclude that the fear or persecution would not exist if it were assumed that the fear or persecution mentioned in paragraph (a) had never existed.
Note:     Section 5G may be relevant for determining family relationships for the purposes of this section.
5L    Membership of a particular social group other than family
For the purposes of the application of this Act and the regulations to a particular person, the person is to be treated as a member of a particular social group (other than the person’s family) if:
(a)     a characteristic is shared by each member of the group; and
(b)     the person shares, or is perceived as sharing, the characteristic; and
(c)     any of the following apply:
(i)the characteristic is an innate or immutable characteristic;
(ii)the characteristic is so fundamental to a member’s identity or conscience, the member should not be forced to renounce it;
(iii)the characteristic distinguishes the group from society; and
(d)     the characteristic is not a fear of persecution.
5LA Effective protection measures
(1)For the purposes of the application of this Act and the regulations to a particular person, effective protection measures are available to the person in a receiving country if:
(a)     protection against persecution could be provided to the person by:
(i)the relevant State; or
(ii)a party or organisation, including an international organisation, that controls the relevant State or a substantial part of the territory of the relevant State; and
(b)     the relevant State, party or organisation mentioned in paragraph (a) is willing and able to offer such protection.
(2)A relevant State, party or organisation mentioned in paragraph (1)(a) is taken to be able to offer protection against persecution to a person if:
(a)     the person can access the protection; and
(b)     the protection is durable; and
(c)     in the case of protection provided by the relevant State—the protection consists of an appropriate criminal law, a reasonably effective police force and an impartial judicial system.
…
36     Protection visas – criteria provided for by this Act
…
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)     a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
(b)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (a); and
(ii)holds a protection visa of the same class as that applied for by the applicant; or
(c)     a non-citizen in Australia who is a member of the same family unit as a non-citizen who:
(i)is mentioned in paragraph (aa); and
(ii)holds a protection visa of the same class as that applied for by the applicant.
(2A)A non‑citizen will suffer significant harm if:
(a)     the non‑citizen will be arbitrarily deprived of his or her life; or
(b)     the death penalty will be carried out on the non‑citizen; or
(c)     the non‑citizen will be subjected to torture; or
(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)     the non‑citizen will be subjected to degrading treatment or punishment.
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
(b)     the non‑citizen could obtain, from an authority of the country, protection such that there would not be a real risk that the non‑citizen will suffer significant harm; or
(c)     the real risk is one faced by the population of the country generally and is not faced by the non‑citizen personally.
…

[2024] AATA 4327

14 August 2024

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction

Standing