2405524 (Refugee)

The applicant, a Tongan national who has resided in Australia since 1985, sought review of a decision not to grant him a protection visa. The dispute centred on whether the applicant would face significant harm if returned to Tonga, primarily due to his serious medical condition requiring ongoing dialysis, a treatment unavailable in Tonga. The applicant claimed that the lack of medical treatment in Tonga would lead to his death, constituting harm.

The court was required to determine if the applicant met the criteria for a protection visa, specifically whether Australia had protection obligations towards him. This involved assessing whether the applicant was a refugee under section 36(2)(a) of the Migration Act 1958, or if there were substantial grounds to believe that his removal to Tonga would result in a real risk of significant harm under section 36(2)(aa). The court also considered the definition of "significant harm" as outlined in section 36(2A) of the Act.

The court affirmed the decision not to grant the protection visa, finding that the applicant did not satisfy the criteria under section 36(2). While acknowledging the applicant's serious medical condition and the absence of dialysis treatment in Tonga, the court concluded that the difficulties in accessing medical treatment did not amount to "significant harm" as defined by the Act. However, the court noted the strong compassionate circumstances, including the applicant's long-standing ties to Australia, his Australian family, and the critical nature of his ongoing medical treatment. Consequently, the Tribunal referred the case to the Minister for consideration of intervention powers under section 417 of the Act, citing the potential for serious, ongoing, and irreversible harm to the applicant and hardship to his Australian-based family if he were removed from Australia.