Background
Background to the litigation
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.
Evidence
Evidence Before The Court
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.’
Decision
Reasons for decision
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 OakmanMemberATTACHMENT - 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.…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 familyFor 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 familyFor 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.…